Current Trends in Planning Law

1. Current Trends in Planning Law Daniel A. SpitzerHodgson Russ LLP www.hodgsonruss.com

2. � 2009 Hodgson Russ LLP 2

3. � 2009 Hodgson Russ LLP 3 Participating Chapters Ohio Alabama Arkansas Connecticut Florida Orange County, California Michigan Mississippi Missouri New Jersey New York, Metro New York, Upstate Northern New England Oregon Pennsylvania Texas Utah Virginia Western Central Wisconsin

4. � 2009 Hodgson Russ LLP 4 Future Webcasts Next Month�s Sponsor � Orange County California Topic: AICP Code of Ethics Date: July 17th 1-2:30 pm EDT � registration closed Other future webcasts are scheduled � Please see: http://www.utah-apa.org/webcasts.htm

5. � 2009 Hodgson Russ LLP 5 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. 

6. � 2009 Hodgson Russ LLP 6 Planning Law can be Difficult The 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)

7. � 2009 Hodgson Russ LLP 7 Surviving the Recession Stimulus Funding So Far Ready, Shoot, Aim Delays 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

8. � 2009 Hodgson Russ LLP 8 Surviving the Recession Banks and other lenders still on the sidelines Developers pressing communities to accept lower-quality projects, using the economic problems as an excuse

9. � 2009 Hodgson Russ LLP 9 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)

10. � 2009 Hodgson Russ LLP 10 Hot off the presses . . . 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."

11. � 2009 Hodgson Russ LLP 11 Hot off the presses . . . 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

12. � 2009 Hodgson Russ LLP 12 Hot off the presses . . . 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.

13. � 2009 Hodgson Russ LLP 13 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.

14. � 2009 Hodgson Russ LLP 14 Hot off the presses . . . The Township's ordinance is reasonable, and the possibility of a more reasonable ordinance is not relevant.

15. � 2009 Hodgson Russ LLP 15 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?

16. � 2009 Hodgson Russ LLP 16 Green Tide vs. Green Backlash 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

17. � 2009 Hodgson Russ LLP 17 Green Tide vs. Green Backlash 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

18. � 2009 Hodgson Russ LLP 18 Green Tide vs. Green Backlash 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

19. � 2009 Hodgson Russ LLP 19 Green Tide vs. Green Backlash Better choices Use of incentive zoning where allowed Use of Planned Unit Developments Imposition of reasonable conditions

20. � 2009 Hodgson Russ LLP 20 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

21. � 2009 Hodgson Russ LLP 21 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

22. � 2009 Hodgson Russ LLP 22 Digital Signs Why Regulate? Distracting to drivers has been proven in study after study

23. � 2009 Hodgson Russ LLP 23 Digital Signs Association 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

24. � 2009 Hodgson Russ LLP 24 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?

25. � 2009 Hodgson Russ LLP 25 Digital Signs Meets RLUIPA 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.

26. � 2009 Hodgson Russ LLP 26 Digital Signs Meets RLUIPA �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.�

27. � 2009 Hodgson Russ LLP 27 Digital Signs Meets RLUIPA �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.

28. � 2009 Hodgson Russ LLP 28 Digital Signs Meets RLUIPA If, 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.�

29. � 2009 Hodgson Russ LLP 29 Digital Signs Meets RLUIPA 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)

30. � 2009 Hodgson Russ LLP 30 Digital Signs Meets RLUIPA 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)

31. � 2009 Hodgson Russ LLP 31 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)

32. � 2009 Hodgson Russ LLP 32 Street Furniture Signs Metro 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.

33. � 2009 Hodgson Russ LLP 33 Street Furniture Signs 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.

34. � 2009 Hodgson Russ LLP 34 Street Furniture Signs The 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.

35. � 2009 Hodgson Russ LLP 35 Street Furniture Signs The 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)

36. � 2009 Hodgson Russ LLP 36 Street Furniture Signs 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.

37. � 2009 Hodgson Russ LLP 37 Street Furniture Signs 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.

38. � 2009 Hodgson Russ LLP 38 Street Furniture Signs 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.�

39. � 2009 Hodgson Russ LLP 39 Follow up Questions Daniel A. Spitzer DSpitzer@Hodgsonruss.com Hodgson Russ LLP Providing Legal Services in Support of the Planning Community