Municipal & Local Govt law

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In a case we’ve been following, a San Francisco Bay Area municipality has filed a cert petition asking the U.S. Supreme Court to review the Ninth Circuit’s opinion in International Church of the Foursquare Gospel v. City of San Leandro, No. 09-15163 (Feb. 15, 2011). In that case, the Ninth Circuit held that the church had established enough to get to trial under RLUIPA’s “substantial burden” provision, and reversed the district court’s grant of summary judgment to the city.

The court held that there was a triable issue of fact regarding whether the city’s denial of the church‘s request for a an amendment to the zoning code and a conditional use permit to allow the construction of new facilities on industrial land imposed a substantial burden on the church’s religious exercise under RLUIPA. The court applied the “strict scrutiny” standard of review, and held that the city failed…

Continue Reading New Cert Petition: What Standard Of Review For RLUIPA “Substantial Burden” Cases?

 

It appears it is not enough for the lobbying arms of California cites and redevelopment agencies to sue the state claiming the state is grabbing “their” money, now at least one California city is in the business of producing You Tube videos complaining of the taking.

Putting aside for the moment whether the municipal poobahs of the City of Morgan Hill* have otherwise solved all the issues no doubt facing their fair city such that they can spend their days making and posting videos, the above piece — which ham-fistedly (and somewhat tastelessly) compares the California Legislature and Governor Jerry Brown to hostage-takers for the recent bills to either eliminate redevelopment agencies or allow them to continue to exist if they pay tribute to the state — we take note of the video’s final request: “[i]f you see the Governor or a State Legislator … Please ask them…

Continue Reading You Stay Classy, California Redevelopment Agencies

We tend not to think of churches as “blighting” their neighborhoods. But what about a church in a downtown “entertainment” district, where the nearby businesses are bars, nightclubs, and liquor stores, and placing a church in the area might limit the availability of liquor licenses?

In a sort of reversal of the usual LULU (locally undersirable land uses) issue, in Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, No. 09-15442 (July 12, 2011), the Ninth Circuit considered whether a municipality ran afoul of RLUIPA’s “equal terms” provision when it required a church to seek a conditional use permit before it could relocate to a downtown entertainment area, and then denied the permit because it might limit the liquor licenses that could be issued to nearby businesses.

Arizona law prohibits issuance of a liquor license to any new bar, nightclub, or liquor store within 300 feet of a church…

Continue Reading 9th Circuit: Church’s Use Permit Requirement Violates RLUIPA Equal Terms

DK_greenbag_1 Notice: This post is worth reading. There’s the possibility of a prize if you do. Read on.

Here’s the latest in a case we’ve been following with mild amusement, if only because the Court of Appeal decision seemed so ironic.

In Save the Plastic Bag Coalition v. City of Manahattan Beach, No. B215788 (Jan. 27, 2010), the Fourth District concluded the city needed to undertake environmental review under CEQA before it could adopt an ordinance banning grocery store plastic bags. The resultant increase in the use of paper bags might cause environmental harm, you see.

Whether you agreed with that conclusion or not, the decision certainly entertained. A putatively “green” measure struck down because it might be bad for the environment? But with a 2-1 panel decision and review granted by the California Supreme Court, it wasn’t hard to see the handwriting on the wall.

Yesterday the other shoe…

Continue Reading Cal Supremes: You Don’t Need Environmental Review Before Choosing Paper Or Plastic – “Common Sense” Dictates No EIR Needed For City’s Plastic Bag Ban

On July 14, 2011, we filed this cert petition (also posted below), which asks the U.S. Supreme Court to review the Hawaii Supreme Court’s decision in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 242 P.3d 1136 (Haw. 2010). In that case, the Hawaii court upheld the taking of land on the Big Island, holding that the asserted public use was not a pretext to hide the overwhelming private benefit to the developer of the luxury Hokulia project.

This case presents the opportunity for the U.S. Supreme Court to firmly establish what the Kelo majority and Justice Kennedy’s concurring opinions strongly suggested, but did not need to squarely address in that case: that “unusual” exercises of eminent domain power will trigger a presumption of invalidity, or at least require heightened scrutiny. These independent triggers include when (1) a taking is accomplished outside of an integrated and comprehensive plan…

Continue Reading Cert Petition: After Kelo, When Is Eminent Domain Pretextual?

stlouis

Is this a “sign?” The city of St. Louis thought so. The city’s building inspection department issued a citation to the folks who commissioned the painting on a residential duplex, telling them they needed a permit. So they asked the city for one.

Denied. The zoning code does not allow for such signs. It’s too big. The building doesn’t have street frontage. Signs can only be incidental to the building’s use, and the building is a two-family home.

Appeal to the Board of Adjustment. No adjustment: it’s not exempt as a “work of art,” a “civil symbol,” or (get this) a “crest.” Those things are not subject to the sign code. Paint a big flag, a mural, (or your family crest?) and you don’t need a permit. But this is a sign. And signs need a permit.

Next stop, state court. The sign guys filed a lawsuit for…

Continue Reading Eighth Circuit Sees The Sign – Eminent Domain Abuse Protest Mural Gets First Amendment OK

Here’s an interesting court of appeal decision about the intersection of technology and direct democracy from the epicenter of citizen lawmaking, California.

In Ni v. Slocum, No. A128721 (June 30, 2011), the court held that a voter using his smartphone to put his “electronic signature” on a petition does not qualify as “personally affixing” his signature to an initiative petition as required by California statute. The initiative in this case was to legalize marijuana.

Examining the language of the statute, the court concluded that “personal” means by the voter’s own hand and that both sides agreed that an e-signature qualifies, but that “affix” is subject to several possible meanings. Thus, because the statutory term is subject to multiple interpretations, the court looked at the legislature’s intent, noting that when it first adopted the “affix” requirement it obviously did not anticipate signing a petition by smartphone: “When the Legislature first…

Continue Reading Cal Ct App: No iSign For You!

The technical legal question before the Court in Nevada Comm’n on Ethics v. Carrigan, No. 10-568 (June 13, 2011) was whether legislative voting by an elected official was “speech” and if so, whether the First Amendment allowed him to vote for a casino development proposal in which his campaign manager and personal friend was the developer’s paid “consultant.”

The Court’s opinion, however, revealed that what was at stake in the case was much more than metaphysical First Amendment questions and “good government” laws, because the heart of the opinion reaffirmed the core principle of representative government: when casting votes, elected and appointed officials are not speaking for themselves, but are exercising power “that belongs to the people.”

Justice Scalia, writing for CJ Roberts, and Justices Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan, concluded that a legislator’s vote is not speech because a city council member is not “saying”…

Continue Reading Legislators’ Voting Is An Exercise Of “Power,” Not “Speech”

This just in.

In a case we’ve followed closely, the U.S. Supreme Court has concluded that Nevada’s Ethics in Government Law is not unconstitutionally overbroad, and that a state may regulate apparent conflicts of interest in legislative voting without infringing upon an elected official’s First Amendment speech rights.

In an opinion by Justice Scalia and joined by CJ Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan, the Court concluded that legislative voting is not “speech,” and when voting, an elected official is acting as trustee for his constituents, and not for herself. The Court reversed the Nevada Supreme Court’s contrary conclusion, and upheld the Nevada Commission on Ethics’ censure of a city council member for not recusing himself from voting on a casino development proposal when the council member’s personal friend and campaign manager was the developer’s “consultant.” The council member disclosed the relationship, but voted to…

Continue Reading SCOTUS: Legislative Voting Is Not “Speech,” State May Require Recusal For Legislators’ Conflicts Of Interest

Today, Honolulu Civil Beat features our piece on Nevada Comm’n on Ethics v. Carrigan, “Do Elected Officials With a Conflict of Interest Have a Right to Vote Anyway?“

We’ve written about the case recently in the Zoning & Planning Law Reporter (Supreme Court Preview: Voting as Speech When a Government Official Has a Conflict of Interest — “Analogy Gone Wild” Or First Amendment Right?, 34 Zon. & Plan. L. Rptr (Apr. 2011)), but the Civil Beat piece is less law-wonky:

In a perfect world, we wouldn’t need ethics laws to regulate the conduct of government officials. We could trust that by simply following their consciences, the personal morality of government officials would coincide with “doing the right thing” and we’d end up with a result everyone would agree was “ethical.”

But because we don’t live in a perfect world, an elected official’s view of what’s…

Continue Reading Op-Ed On SCOTUS Carrigan Case: Do Elected Officials With a Conflict of Interest Have a Right to Vote Anyway?