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Cases and Links From Today's Seminar

To all those who attended today's seminar, thank you.  Here are the links to the cases I mentioned.  From the morning session on Case Law Update:

• Wilkie - Government Gone Wild! - no comprehensive federal remedy for federal interference with property
• My Advertiser op-ed on Wilkie
• Crown Point - Ninth Circuit abandons Armendariz doctrine
• Cine SK8 - one way to prove a substantive due process case
• Post-Kelo claims of pretext:

• Franco - District of Columbia Court of Appeals - allegations of pretext cannot be summarily dismissed

• Goldstein v. Pataki - Second Circuit - government's claim of public use trump claims of pretext - cert. petition filed March 31, 2008

• Brescia - shoreline setback and equitable estoppel - HAWSCT holds you gotta get your "official assurances" from the right party
• Private agreements and public process - development and settlement agreements not a substitute for zoning process

From the afternoon session on Appealing an Administrative Zoning Decision:

• Hawaii Home Infusion - venue in administrative declaratory actions under § 91-7
• CARD - can a § 91-8 declaratory action substitute for an appeal?
• Colony Surf - nonconforming uses and reliance on administrative procedures
  
• E & J Lounge - what is a "contested case?"  See also Aha Hui Malama v. Kaniakapupu v. Land Use Comm'n (July 24, 2006)
• Rees v. Carlisle - private rights of action
• Silva v. City and County of Honolulu - the basis for rational basis equal protection arguments must be in the record

Questions?  Want a copy of the vested rights/zoning estoppel law review article? Drop me an email.

The First Amendment, the Ninth Circuit, and the Ten Commandments

While not exactly on the usual topics of this blog, the Ninth Circuit's opinion in Card v. City of Everett, No. 05-35996 (Mar. 26, 2008) is worth a read.  It involves the question of whether the placement of a reproduction of the Ten Commandments (the tablets, not the movie) on the grounds of Old City Hall in Everett, Washington violates the state and federal establishment clauses.  As usual in these type of cases, the facts are fascinating, as is the debate over the controlling law. 

In the end, the Ninth Circuit held that the city's display does not run afoul of either the Washington or the U.S. Constitutions.  Perhaps the best line of the opinion is in the concurring opinion of Judge Fernandez:

I applaud Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials.

Slip op. at 3039 (Fernandez, J., concurring) (citing Milton, Paradise Lost).  Read the complete opinion here.

PA Supreme Court Upholds Use of Eminent Domain to Take Private Property And Turn Over to Religious School

In a case at the intersection of Kelo-style eminent domain and First Amendment church-state issues, the Pennsylvania Supreme Court in In re Condemnation of 1839 North Eighth Street, No. 36 EAP 2006 (Dec. 29, 2007), held that the taking of property designated as "blighted" pursuant to a redevelopment plan, and for a nominal price transferring it to a religious entity did not violate the U.S. Constitution's Establishment Clause.

In 1968, a Philadelphia neighborhood which included the subject property was certified as "blighted" by the city's planning commission.  Thirty-four years later, in 2002, a coalition of Catholic groups asked the city's redevelopment authority to take 39 acres of the neighborhood, including the subject property, and turn it over to establish a "non-denominational, faith-based, not tuition based school."  The city approved of the plan and condemned the property, listing the Catholic group as the developer.  The property owner objected to the taking, alleging:

the taking of the Property was not for a public purpose; that the taking was  arbitrary, capricious and discriminatory; that the taking is the result of a  predetermined illegal commitment to a religiously-affiliated private entity; and that Condemnee’s due process rights were violated.

Slip op. at 3.  The trial court upheld the taking, and held that since the property was declared blighted, it didn't matter to whom the property was transferred.  The Supreme Court affirmed the judgment for different reasons.  It relied on Justice Kennedy's concurring opinion in Kelo and held the record did not support a claim of bad faith by the redevelopment agency, and that the only question was whether turning over the property to a religious organization violated the Establishment Clause. 

The court applied the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), and held (1) that there was a secular purpose in the taking (to eliminate blight), (2) that the primary effect of the taking was to develop a school, and even though the organization was sectarian that religious education was not the principle reason for the taking, and (3) that the taking and transfer to a Catholic group did not "excessively entangle" church and state.

Justice Baer dissented.  He agreed with the court's analysis of parts (1) and (3), but disagreed that the principle reason for the taking was secular.  He argued that government advances religion when it takes property and transfers it to a religious organization to run a religious school for nominal consideration, it is the same thing as government providing direct aid to a religious school.  Justice Baer relied on the stated nature of the organization to support his conclusion that the school would be religious:

The Hope Partnership described the venture as being between “[t]wo  Communities of religious sisters, the Society of the Holy Child Jesus and the Sisters of Mercy. . . .” R.R. at 43, 47. It further explained that “[t]his collaborative venture is being built on the long established Holy Child and Mercy traditions of service, characterized by reverence, compassion, and belief in the life-changing power of education. As vowed religious, we are called to journey with those in need. . . .” Id. One of the purposes of the Sisters of Mercy, which is a Roman Catholic Order, is to operate schools devoted to education under the principles of commitment to God. The school that Hope Partnership seeks to run will be based on a model inspired by Judeo-Christian values that is nondenominational, but assumes the presence of God.

Dissenting slip op. at 2.  Justice Baer would have held that the transfer of the condemned property is no different than direct government aid to a religious organization, and thus the taking would not serve a public use:

I believe this is a case of direct government aid, in the form of a land transfer below market value to a religious organization for the development of a religious school. The state action here is neither directed at, nor directly benefits, individual students without regard to where they choose to apply the aid. Instead, the aid here is essentially a land grant, directly to the religious school, as a consequence of state decisionmaking.

Id. at 6. Given that the Pennsylvania Court based its decision solely on federal law, and that the authorities cited by Justice Baer seem to support his argument, a cert petition to the U.S. Supreme Court may be in the cards.   

The Philadelphia Inquirer reports on the decision here.

Third Circuit RLUIPA Decision - Circuit Split?

Visit the New Jersey Eminent Domain Law blog and read "RLUIPA, Redevelopment, and Eminent Domain," a report about Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, No. 06-1319 (Nov. 27, 2007), a recent decision by the US Court of Appeals for the Third Circuit (which covers Pennsylvania, New Jersey, Delaware and the US Virgin Islands).  This case is worthy of attention since, according to NJED, it is at odds with decisions from other federal circuits, and thus may be a candidate for Supreme Court review.

▪ Petition for Rehearing/En Banc in RLUIPA Settlement Case

In a case discussed earlier here and here, Congregation Etz Chaim has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in the Ninth Circuit in The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007).

In that opinion, a three-judge panel of the Ninth Circuit determined that Los Angeles agreed as part of a settlement of the Congregation's RLUIPA claim to issue a conditional use permit (CUP) to the congregation.  Neighbors complained that city could not override the CUP process in a settlement agreement, which would have provided the neighbors notice and hearing under state law.  The Ninth Circuit agreed, voiding the settlement agreement unless there had been a specific finding that federal law was violated. 

The petition argues that the panel got it wrong factually: the settlement did not grant the Congregation a CUP, rather, it was premised on the idea that a CUP was not necessary and the Congregation could use its property for worship without a permit.  The petition also argues that the panel's ruling, by requiring a finding of "actual violation," undercuts the courts' and the litigants' ability to settle lawsuits without having to litigate a case to a judgment, and differs from the law in the Seventh and Third Circuits (i.e., a circuit split). 

Download the petition here.  The oral arguments in the Panel decision is here (8mb wma)

▪ Religion vs Land Use - Major RLUIPA Case

In Westchester Day School v. Village of Mamaroneck, No. 06-1464-cv (Oct. 17, 2007), the US Court of Appeals for the Second Circuit upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The decision has been analyzed extensively by others, so I won't repeat the details, just provide some links to this important decision. 

The Second Circuit's opinion is here.  Professor Patty Salkin's analysis at her Law of the Land blog is here.  Land Use Law Prof posts here, and the New York Zoning and Municipal Law blog posts here.  The Becket Fund for Religious Liberty posts details of the case here, and includes copies of the major pleadings and briefs.

▪ Land Use Round-up

Interesting items of the week:

• The Maui News reports on the short-term rental issue: "Planning Official: Enforcement due to TVRs' increase"

• California court: Development must be consistent, not identical, with general plan as summarized by Law of the Land blog (decision reported here, California Land Use Law blog report and summary here)

• Seventh Circuit: RLUIPA does not stand in the way of condemnation of cemetery (St. John's United Church of Christ v. City of Chicago (Nos. 05-4418, 05-4450, 05-4451 (Sep. 13, 2007), because the exercise of eminent domain is not a "land use" regulation under the Act; opinion here; oral argument mp3 here) -- for the Hawaii Supreme Court's treatment of the same issue, see Sherman v. City & County of Honolulu, 110 Haw. 39, 129 P.3d 542 (Feb. 28, 2006) (cited by St. John's at page 45 of the slip opinion)

• Professor Gideon Kanner comments on a $12 million Connecticut just compensation verdict which includes compensation for lost profits and business losses

• Blue Hawaii: the Honolulu Advertiser reports "Developer abandons plans to rebuild Kauai's Coco Palms"

▪ Ninth Circuit: Land Swap of Cross on Federal Land Violates Establishment Clause Injunction

The Ninth Circuit panel summarizes its decision:

A Latin cross sits atop a prominent rock outcropping known as “Sunrise Rock” in the Mojave National Preserve (“Preserve”). Our court previously held that the presence of the cross in the Preserve—which consists of more than 90 percent federally-owned land, including the land where the cross is situated—violates the Establishment Clause of the United States Constitution. Buono v. Norton, 371 F.3d 543 (9th Cir. 2004). We affirmed the district court’s judgment permanently enjoining the government “from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.”

During the pendency of the first appeal, Congress enacted a statute directing that the land on which the cross is situated be transferred to a private organization in exchange for a parcel of privately-owned land located elsewhere in the Preserve.  See Pub.L. No. 108-87, R. 12.1, 12.4 § 8121(a)-(f), 117 Stat. 1100 (2003). That land exchange is already in progress and would leave a little donut hole of land with a cross in the midst of a vast federal preserve. The issue we address today is whether the land exchange violates the district court’s permanent injunction. We conclude that it does, and affirm the district court’s order permanently enjoining the government from effectuating the land exchange and ordering the government to comply with the original injunction.

Buono v. Kempthorne, No. 05-55852 (Sep. 6, 2007).  Full opinion here (149kb pdf).

▪ 9th Cir: Rock Climbing Ban at Lake Tahoe Not Motivated by Religion

In The Access Fund v. United States Dep't of Agriculture, No. 05-15585 (Aug. 27, 2007), the Ninth Circuit upheld the prohibition by the US Forest Service of recreational rock climbing at the culturally and religiously significant Cave Rock on the eastern shore of Lake Tahoe.  The rock is many things to many people:

To the Washoe Tribe, it is a site of powerful religious and cultural significance. To historians and archaeologists, it sheds light both on historical Washoe culture and on the history of American transportation. And, to rock climbers, it offers some of the most challenging climbing in the nation.

Slip op. at 10528-29.  A rock climbing advocacy group challenged the prohibition as a government establishment of religion, prohibited by the First Amendment's Establishment Clause.  Government action violates the prohibition on the establishment of religion if (1) it has no secular purpose; (2) its principal effect is to advance religion; or (3) it involves excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).  The Ninth Circuit held that the Forest Service's ban was not an endorsement of the Washoe Tribe's religious beliefs, and there was a secular purpose in banning rock climbing.  Professor Howard Friedman's summary of the issues here on his Religion Clause blog.

Opinion posted here.  The Forest Service's summary of the litigation here.  Write up from the Reno Gazette-Journal here.

Sidebar: The Ninth Circuit also recently decided a case involving a local government's ability to settle RLUIPA claims, as I posted about here.  The Establishment Clause and the RLUIPA issues are different, of course (the Establishment question going to whether the government has gone too far in accommodating religion, while the RLUIPA issue generally is whether the government has not gone far enough), but it appears that the intersection of land use and religion may be becoming a hot issue. 

▪ More on 9th Circuit RLUIPA Settlement Case

In The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007), which I first discussed here a few days ago, the Ninth Circuit invalidated an agreement between the city of Los Angeles and a congregation to settle the congregation's federal RLUIPA claim.  As part of the settlement, the city agreed to issue the congregation a Conditional Use Permit (CUP).  The League objected, asserting its members had been deprived of their right to a public hearing on the CUP.  More details on the case at Professor Patty Salkin's Law of the Land blog here. 

The Ninth invalidated the agreement because the usual procedure to issue a CUP under California law includes public hearings, which had not been held in this case due to the settlement agreement.  While a federal district court has broad powers to settle litigation, those powers could not be invoked because the court had not found an "actual violation" of federal law, merely a "potential violation."  As is usual in settlement agreements, the city did not admit it had breached RLUIPA, or violated the congregation's rights.  The court found that fact dispositive.

However, this decision does not necessarily spell the end for settlement of federal land use litigation by procedures that may not conform precisely to state law.  Federal courts have extensive authority to settle litigation, especially lawsuits involving federal constitutional issues by way of settlement agreements between the parties or consent decrees. 

Under a federal court's consent decree authority, its inherent supervisory powers, and its power to remedy constitutional violations, it may command a state or local government to do things that they could not do under their own laws (like issue CUP's without a public hearing, for example). 

I like to think of consent decrees as settlement agreements on constitutional steroids.  The US Constitution's Supremacy Clause is a very potent tool, after all.  The seminal article on the subject was written by University of Hawaii Law School professor David Callies: The Use of Consent Decrees in Settling Land Use and Environmental Disputes, 21 Stetson L. Rev. 871 (1992). There are important differences between a settlement agreement and a consent decree that could distinguish League of Residential Neighborhood Advocates, and allow comprehensive (and creative) settlement of land use disputes. 

First, settlement agreements are merely contracts to end litigation, while consent decrees are federal court judgments (albeit agreed to by the parties) over which the court retains jurisdiction to supervise and enforce.  The fact that a consent decree is a judgment means that the limitation set forth in the Ninth Circuit decision -- that the court finds an "actual violation" of federal law -- is met. 

Second, the due process undercurrents in the Ninth Circuit case may not be present in the consent decree process, as courts generally hold at least one hearing prior to entering a consent decree at which third parties who may be impacted may object.

Update 10/22/2007 - the Congregation has filed a petition for rehearing/en banc with the Ninth Circuit.