Articles Posted in Zoning, Planning & Land Use

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A litigant in this circuit does not have a substantive due process claim under the Due Process Clause of the Fourteenth Amendment when the alleged conduct is the unlawful application of a land-use ordinance. The Eleventh Circuit held in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), that executive action never gives rise to a substantive due process claim unless it infringes on a fundamental right. The court held that a land use decision is executive, rather than legislative, action, and did not implicate a fundamental right under the Constitution in this case. The ordinance at issue was Ordinance No. 11-15, which seeks to preserve, protect, and provide for the dedication and/or acquisition of right-of-way and transportation corridors that are necessary to provide future transportation facilities and facility improvements to meet the needs of projected growth. The court held that the application of the Ordinance to Hillcrest did not give rise to a substantive due process claim. Therefore, Hillcrest lacked a viable cause of action and the judgment as a matter of law was appropriate. Accordingly, the court reversed the district court's grant of summary judgment. View "Hillcrest Property, LLP v. Pasco County" on Justia Law

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The Eleventh Circuit affirmed the district court's grant of summary judgment to the City of Brookhaven, holding that its ordinance regulating adult businesses was not unconstitutional. The city passed the ordinance for the stated purpose of preventing the negative secondary effects of such businesses. As a preliminary matter, the court held that res judicata did not preclude Stardust from litigating its claims in this appeal. On the merits, the court held that the ordinance did not impermissibly restrict Stardust's constitutionally protected speech; the ordinance was not unconstitutionally vague in violation of due process; the City's enforcement of the ordinance did not violate Stardust's equal protection rights; and the ordinance did not impermissibly infringe on individuals' substantive due process right to intimate sexual activity. View "Stardust, 3007 LLC v. City of Brookhaven" on Justia Law

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Plaintiff filed suit against the county, seeking relief from a 2010 zoning ordinance that prohibited short term rentals of single family dwellings. The Eleventh Circuit held that the Rooker-Feldman doctrine barred review of all of plaintiff's claims challenging the application of Regulation 15.35 to her property. Rooker-Feldman barred federal review because all of her claims in this case were inextricably intertwined with those from her first civil case. The court explained that plaintiff's proper channel for seeking relief was to appeal to state appellate courts, which she did, and lost. Accordingly, the court affirmed the district court's judgment. View "May v. Morgan County, Georgia" on Justia Law

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This case involves the Federal Highway Administration (FHWA) and City's efforts to build a new bridge across the North Fork St. Lucie River. Section 4(f) of the Department of Transportation Act, 49 U.S.C. 303(c), allows the Secretary of Transportation to approve projects that use section 4(f) lands only if the agency first determines that there is no feasible and prudent alternative to using that land. Plaintiff filed suit claiming that the FHWA abused its discretion in not selecting their proffered alternative that, when built with a spliced-beam construction, would avoid all use of section 4(f) lands. The FHWA concluded that the spliced-beam construction would be "imprudent" because it would cause significantly greater harm to non–section 4(f) wetland areas, as well as "severe social impacts." The court concluded that FHWA was thorough and careful in its analysis and thoughtful in its determination, and the court could discern neither an arbitrary or capricious action nor an abuse of discretion. In this case, the FHWA made its calculus carefully, giving thoughtful consideration to a wide variety of factors, and it worked with many agencies, even those that once opposed the project, to develop remediation plans that mitigate harms to the affected areas. Accordingly, the court affirmed the judgment. View "Conservation Alliance of St. Lucie County v. U.S. Department of Transportation" on Justia Law

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In 2005, the County adopted the Lauren Book Child Safety Ordinance, Fla., Code of Ordinances ch. 21, art. XVII, which imposes a residency restriction on “sexual offenders” and “sexual predators.” The Ordinance prohibits a person who has been convicted of any one of several enumerated sexual offenses involving a victim under sixteen years of age from “resid[ing] within 2,500 feet of any school.” Plaintiffs filed suit challenging the constitutionality of the County’s residency restriction. The district court dismissed the ex post facto challenge. Plaintiffs argue that they pleaded sufficient facts to state a claim that the residency restriction is so punitive in effect as to violate the ex post facto clauses of the federal and Florida Constitutions. The court concluded that Doe #1 and Doe #3 have alleged plausible ex post facto challenges to the residency restriction where they alleged that they are homeless and that their homelessness resulted directly from the County’s residency restriction “severely restricting available, affordable housing options.” Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "John Doe #1 v. Miami-Dade County" on Justia Law

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Plaintiffs, property owners in the City of Sanibel, filed suit against the city challenging a municipal ordinance that prohibits them from building a boat dock or accessory pier on their properties. On appeal, plaintiffs challenged the dismissal of their substantive due process claims. The court rejected plaintiffs' argument that Lingle v. Chevron U.S.A., Inc. created a new "substantial advancement" test for substantive due process claims based on state-created property rights. The district court correctly concluded that the riparian rights asserted by plaintiffs were state-created rights, not fundamental rights. Because plaintiffs challenged the ordinance on its face rather than contesting a specific zoning or permit decision made under the auspices of the ordinance, the court concluded that they were challenging a legislative act. Under the court's existing precedent, the court concluded that plaintiffs could not show that the ordinance lacked a rational basis and the court declined to adopt a new standard of review. Plaintiffs themselves plead at least two rational bases for the ordinance in their Amended Complaint: protection of seagrasses and aesthetic preservation. Accordingly, the court affirmed the judgment of the district court. View "Kentner, et al. v. City of Sanibel" on Justia Law

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This appeal concerned the City of Milton's decision to deny T-Mobile's applications for permits to build three cell phone towers. At issue was the writing requirement of the Telecommunications Act, 47 U.S.C. 332(c)(7)(B)(iii), which stated that "[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless services shall be in writing and supported by substantial evidence contained in a written record." The court concluded that T-Mobile had access to documents - including transcripts of the planning commission's hearings, letters the city sent to T-Mobile, and detailed minutes of the city council hearings- before its deadline for filing the lawsuit and collectively, these documents they were enough to satisfy the writing requirement of section 332(c)(7)(B)(iii). Accordingly, the court reversed the judgment of the district court and remanded for further proceedings. View "T-Mobile South, LLC v. City of Milton, Georgia" on Justia Law

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Temple B'Nai Zion brought statutory and constitutional challenges to its designation as a historic landmark by a municipality. At issue was whether Temple's challenges were ripe for adjudication. The court concluded that the Temple's complaint alleged a dispute sufficiently concrete to render the instant controversy ripe and justiciable without further delay. Accordingly, the court vacated and remanded the judgment of the district court. View "Temple B'Nai Zion, Inc. v. City of Sunny Isles Beach, FL, et al." on Justia Law

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Willie Keen, a former zoning official for Dixie County, Florida, appealed convictions arising from two different cases consolidated on appeal. In Case No. 09-16027, a jury convicted Keen of fraudulently obtaining low-income housing funds in violation of federal criminal law. In Case Nos. 09-16028, 10-10438, and 10-10439, a jury convicted Keen, together with former Dixie County Commissioners John Driggers and Alton Land, of federal bribery charges that stemmed from an undercover investigation of corruption in Dixie County. On appeal, Keen, Driggers, and Land challenged their convictions. The court confirmed all convictions after careful review of the record and the parties' briefs, and after having had the benefit of oral argument. However, because the court concluded that the district court erred in calculating Keen's sentence, the court remanded to the district court with a mandate to vacate the sentence and re-sentence him. View "United States v. Keen, Jr.; United States v. Driggers, et al." on Justia Law

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In this Section 1983 case, four homeless plaintiffs challenged the constitutionality of two ordinances in the City Code of St. Petersburg, Florida and of the city's enforcement of the ordinances. The trespass ordinance at issue authorized certain city agents to issue a temporary trespass warning for specific city land on which the agent determined that the warning recipient had violated city or state law. The storage ordinance at issue prohibited storage of personal property on city land such as parks and rights-of-way. The district court dismissed all of plaintiffs claims. The court affirmed the district court's rulings, except the court vacated part of the district court's ruling about the trespass ordinance. Plaintiffs have stated claims on the issues of procedural due process under the United States Constitution and on their right to intrastate travel under the Florida Constitution.