Prepared and Presented by:
TABLE OF CONTENTS
I. Introduction to Federal Law on Zoning
II. § 1983 Claims
- Legislative v. Administrative Acts
III. Federal Takings
IV. First Amendment Claims
- Adult Entertainment
- Sign Ordinances
- The First Amendment and RLUIPA
V. Fair Housing Act and Americans with Disabilities Act
I. INTRODUCTION TO FEDERAL LAW ON ZONING
A. Certain types of uses are subject to protection by federal law. In such cases, the federal statute may provide an enforcement mechanism; otherwise, 42 USC § 1983 will apply.
B. Zoning regulations affecting people with a disability must satisfy the Fair Housing Act, the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act.1 A zoning ordinance that places burdens on residences of, and institutions serving, people with disabilities will be closely scrutinized. A common example is a special use permit requirement for personal care homes.
C. Land use ordinance regulations based upon the religious nature of a use must satisfy the Free Exercise Clause of the First Amendment and also the Religious Land Use and Institutionalized Persons Act of 2000.2 Courts will look to whether the zoning regulation places a substantial burden on religious exercise or whether it discriminates against religious uses. If so, the Court will apply the strict scrutiny test: whether the regulation is the least restrictive means of achieving a compelling governmental interest.
D. A very substantial body of First Amendment case law has evolved around adult entertainment and zoning regulation thereof.3
E. Similarly, a substantial body of First Amendment case law surrounds zoning regulation of signs, including billboards and outdoor advertising. Generally speaking, an ordinance that regulates based upon the content of signs will be subject to strict scrutiny. 4
F. The federal courts have shown a reluctance to sit as zoning appeals courts, so most zoning cases in Georgia tend to get resolved in the State courts. However, a review of recent federal zoning and land use decisions shows that the practitioner should keep the federal courts in mind, especially where there is a federal constitutional statute that creates a claim or right. The following is a discussion of issues surrounding federal takings law, as well as a summary of 11th Circuit and local District Court decisions over the previous year or so.
II. § 1983 CLAIMS
Pursuant to 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
Over the years, the 11th Circuit has carved out specific rules regarding the applicability of § 1983 claims in the area of zoning and land use decisions by local governments. The individuals bringing such claims often allege a violation of their due process rights, whether substantive or procedural. Whether one can claim a substantive due process violation or procedural due process violation is important for a number of reasons. First of all, government actors do not have the opportunity to cure substantive due process violations because such violations are complete when they occur and no amount of process can justify their infringement.5 On the other hand, a state actor generally may cure a procedural deprivation by providing a later procedural remedy.6 Further, substantive due process rights are generally protected against government action regardless of the procedural fairness used to implement them.7 In terms of zoning decisions, the 11th Circuit has held that non-legislative deprivations of state-created rights, which would include land-use rights, cannot support a substantive due process claim, not even if the plaintiff alleges that the government acted arbitrarily and irrationally.8 This is because the substantive due process clause only protects those rights created by the Constitution, and property interests are created by independent sources such as state law, and not the Constitution.9
B. Legislative vs. Administrative Acts
There is an exception to this general rule, however. Where a person's state-created rights are violated by "legislative act," the substantive due process clause will generally provide protection from arbitrary and irrational action by the government.10 The courts have laid out guidelines to help litigants determine the nature of local government action. Generally, a legislative act involves policy making rather than mere administrative application of existing policies.11 Also, when the local government body is dealing with specific rather than general facts, usually the decision is administrative in nature.12 Administrative or executive acts usually apply to a limited number of persons (and often to only one person); executive acts typically arise from the ministerial or administrative activities of members of the executive branch.13 On the other hand, legislative acts generally apply to a larger segment of – if not all of – society, with laws and broad-ranging executive regulations being the most common examples.14
III. FEDERAL TAKINGS
Generally speaking, a permanent physical occupation of an individual's private property by a state actor constitutes a taking for which a landowner must be compensated.15 To establish a just compensation claim based on the effect of a zoning regulation or ordinance which does not affect a physical invasion of property, a property owner has to show that he has been deprived of all economic use of his property. As such, the federal takings test is more difficult than the Georgia test.
A federal takings claim is not ripe unless the State has failed to provide a remedy. A federal claim cannot ripen if the State provides method of redress for a taking without just compensation. Nor does a federal takings claim ripen if no final decision has been rendered. The federal court cannot determine if there has been a taking if it cannot determine what use can be made of the property. If a variance can be applied for, or the property owner has not sought to develop his property under the current zoning, his claim may not be ripe.18
IV. First Amendment CLAIMS
A. Adult Entertainment
As a general rule, local governments can regulate adult entertainment establishments by either dispersing them throughout the city or county, or by concentrating them in a particular area within the local government boundaries.19 The important thing is that the regulation or ordinance not be aimed at the content of the expression. Rather, any such ordinance should be a time, place, or manner regulation, which the courts classify as "content-neutral" in nature. For example, an ordinance providing that adult theaters may not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school has been held to be a content-neutral, time, place and manner regulation.20 Content-neutral time, place, and manner regulations can constitutionally be enacted so long as they serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.21
In regulating adult entertainment, the courts have found that ordinances aimed at the "secondary effects" of adult businesses, rather than the content of the materials shown or sold at such businesses, will usually be deemed time, place, and manner restrictions.22 Examples of such secondary effects are the prevention of crime, protection of the retail trade, maintaining property values, and preserving the quality of urban life. In order to prove the necessary nexus between such businesses and their secondary effects, local governments in enacting such ordinances should include evidentiary support for their contentions that such businesses would have negative secondary effects on certain areas within their jurisdiction. For instance, local governments can conduct studies, or they may rely on studies conducted by other cities showing such effects to particular neighborhoods.
As stated above, the standard also requires that there be alternative avenues of communication available. A zoning ordinance enacted by a local government should leave a number of sites available for adult businesses under the new zoning regime which are greater than or equal to the number of adult businesses in existence at the time the new zoning regime takes effect.25 However, just because properties on which adult businesses may locate are currently occupied and not for sale or lease will not necessarily mean that alternative avenues have been foreclosed by a local government. As the U.S. Supreme Court has put it, adult businesses must fend for themselves in the real estate market. This generally means that just because available properties are expensive, such property is not unavailable for First Amendment purposes. Also, the fact that impediments, such as having to build a new facility, having to clean up an existing location, having less space than desired, having to purchase a larger lot than is needed, or having to install lighting or parking, make development of an adult business more difficult usually will not deem a property unavailable for First Amendment purposes. Finally, if an individual meets the criteria of a zoning ordinance to open an adult business establishment, a local government generally cannot impose an additional requirement, such as the need to obtain a special exception which is decided upon by the local governing body, without running afoul of the First Amendment.
- Sign Ordinances
Sign ordinances are a common component of local government zoning and land use regulations. They are also a frequently challenged type of local government regulation, and a substantial body of case law has developed regarding the constitutionality of sign ordinances. Sign ordinances are frequently challenged because some courts have held that if a party can successfully challenge any substantive provision of a sign ordinance, the entire ordinance may be struck down, even if the section in issue does not apply to the challenging party. This is what is called a facial challenge – the ordinance is challenged as being unconstitutional on its face, rather than as applied in a particular context. Thus, attorneys representing outdoor advertising companies pick out troublesome portions of sign ordinances that don't necessarily apply to outdoor advertising signs. Some courts allow this because sign ordinances regulate free speech, a fundamental right under the First Amendment to the United States Constitution. However, in making what are known as "as applied" challenges to sign ordinances, the courts have come to the conclusion that a plaintiff whose sign permit applications were denied on the basis of one provision in a county's sign ordinance, but which could have been denied on the basis of some alternate, but unchallenged regulation, does not have a redressable injury.30
Normally, government restrictions on free speech are subject to strict scrutiny – the most difficult burden to meet under the law. The courts have told us that local governments can avoid strict scrutiny if they regulate the time, place and manner of speech, rather than the speech itself, in what is called a content-neutral manner. This lowers the local government's burden in proving that the ordinance is valid, and makes it more likely to survive a challenge. Thus, sign ordinances should regulate the size and location of sign structures, but not the content of the message. If you have to read the sign to determine whether or not it violates the sign ordinance, the ordinance probably is not content-neutral.
C. The First Amendment and RLUIPA
Churches, synagogues and mosques are a type of land use which, like signs and adult entertainment, are protected by the First Amendment to the U.S. Constitution and also the Religious Land Use and Institutionalized Persons Act of 2000. The U.S. Supreme Court decision Employment Div., Dept. of Human Resources of Oregon v. Smith is the modern starting point for any discussion of the free exercise clause. The issue there was whether a law prohibiting peyote use violated the free exercise rights of certain Native Americans. After recognizing that the free exercise clause first protects the right to believe in the religion of one's own choosing, the Court went on to demonstrate that it also protects the right to act consistently with those religious beliefs:
But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a State would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display.
The challenged law in that case was a criminal statute applying generally and neutrally to everyone, and was not aimed at religious believers as a group. The Court declined to apply the strict scrutiny test – which asks whether the challenged regulation is narrowly tailored to achieve a compelling governmental interest – to such a law of general applicability. Thus, a law that may incidentally burden an individual's religious exercise, but which is generally applicable rather than aimed at religious exercise, will normally not run afoul of the free exercise clause.
The Court revisited this issue in Church of the Lukumi Babalu Aye v. City of Hialeah, which involved a ban on ritual slaughter of animals. While reaffirming the rule that a neutral law of general applicability would not be subjected to the strict scrutiny test, the Court, after considering the circumstances surrounding the adoption of the ordinance, found that it was not neutral as to religion, but was instead directly aimed at regulating Santeria religious exercise. "If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral." The Court then applied the compelling governmental interest test:
A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests.
Finally, before striking the ordinance down, the Court provided the following guidance to local legislators:
The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.
These U.S. Supreme Court decisions show us that land use laws that burden religious exercise, like other laws, must be neutral and of general applicability in order to avoid strict scrutiny. But this left significant room to argue whether a law is neutral and of general applicability.
Congress responded by adopting the Religious Freedom Restoration Act of 1993 (RFRA), which attempted to impose the strict scrutiny test on all laws burdening religious exercise, regardless of whether or not they were neutral or generally applicable. RFRA was struck down by the U.S. Supreme Court as violating Congress' Fourteenth Amendment Enforcement Power in City of Boerne v. Flores. Congress then replied with the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).
RLUIPA differs from RFRA in that it is much more limited in scope; as its title indicates, rather than affecting all regulations, it applies to land use restrictions and separately to the treatment of institutionalized persons. However, it is still intended to remove the neutral / generally applicable qualifier from the Smith case. 40 There is no mention of an exclusion for neutral laws of general applicability; if the restriction places a substantial burden on religious exercise, then it must survive strict scrutiny.
Congress sought to survive where RFRA failed by placing jurisdictional limitations which have since been upheld. RLUIPA is limited to situations where Congress can act within the scope of its power to regulate the recipients of federal funding, under its power to regulate interstate commerce, or consistent with the U.S. Supreme Court's Smith and Lukumi cases, the regulation involves an individualized assessment and therefore is not a law of general applicability.
Why did Congress feel that it was necessary to go to such lengths to adopt a statute that obviously seeks to direct the courts' interpretation of the First Amendment, specifically in the context of zoning and land use regulations? To answer that question, it is helpful to review the legislative record. It is replete with testimony and studies providing examples of local governments discriminating against churches in general, or against specific denominations.
This shows a belief that local governments across the country are cloaking regulations substantially burdening the free exercise of religion in generally applicable zoning ordinances in order to avoid challenge under the Smith case.
RLUIPA has several substantive provisions, the first of which is discussed above, subjecting any land use regulation substantially burdening religious exercise to strict scrutiny. Substantial burden is not defined by the Act, but the Eleventh Circuit has held that "a 'substantial burden' must place more than an inconvenience on religious exercise; a 'substantial burden' is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly." The Eleventh Circuit has held that this does not mean that a zoning ordinance places a substantial burden just because it limits churches to certain zoning classifications. Similarly, the Eleventh Circuit has held that requiring a religious institution to apply for a special use permit does not constitute a substantial burden. Therefore, although the issue of what does and what does not constitute a substantial burden has not yet fully been fleshed out, it appears that more is required than simply subjecting a religious institution to land use regulation.
The next substantive provision is the equal terms provision, and it is where many land use regulations will fail:
No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
On first reviewing this ordinance, it appears to be a restatement of the equal protection clause; however, in the context of facial challenges, the Eleventh Circuit has interpreted it more broadly, because it does not include the similarly-situated language familiar from equal protection jurisprudence. Instead, it applies to all assemblies and institutions, which are assigned their common meaning:
An "assembly" is "a company of persons collected together in one place [usually] and usually for some common purpose (as deliberation and legislation, worship, or social entertainment)," Webster's 3d New Int'l Unabridged Dictionary 131 (1993); or "[a] group of persons organized and united for some common purpose." Black's Law Dictionary 111 (7th ed.1999). An institution is "an established society or corporation: an establishment or foundation esp. of a public character," Webster's 3d New Int'l Unabridged Dictionary 1171 (1993); or "[a]n established organization, esp. one of a public character····" Black's Law Dictionary 801 (7th ed.1999).
Under this interpretation, the Eleventh Circuit found that a zoning ordinance that prohibited churches in zoning districts where private clubs and lodges were allowed violated the equal terms provision.
The Eleventh Circuit recently discussed the various ways that a zoning ordinance could violate the equal terms provision in Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County. The Court listed three separate equal terms claims, beginning with the facial unequal treatment exemplified by the Midrash case above, where the ordinance treats religious assemblies less favorably than secular assemblies. Second, an ordinance that does not violate the equal terms provision on its face might still be void if is shows "religious gerrymandering." The Court pointed to the Lukumi case as example of an ordinance that was facially neutral, but which hid an animus against religious exercise. In order to prove such a case, the plaintiff "would have to show that the challenged zoning regulation separates permissible from impermissible assemblies or institutions in a way that burdens 'almost only' religious uses." The third potential claim is that a facially-neutral regulation is applied in a discriminatory manner, such as if a regulation required variances for all assemblies, but in practice variances are only granted to secular uses, or if a certain congregation was singled out for denial of the variance. Thus, the equal terms provision must be carefully considered, because it provides a number of grounds for challenging a local government ordinance or action.
The next substantive RLUIPA provision is similar to the preceding third equal terms claim:
No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.51
There is little Eleventh Circuit case law on this provision so far; however, it appears that it applies to situations where, under a facially-neutral land regulation scheme, special exceptions are granted to some secular or religious institutions, but not to specific religious institutions, and situations of selective enforcement.52
The final substantive land use provision of RLUIPA is the exclusion and limitations provision:
No government shall impose or implement a land use regulation that--
(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.53
This is clearly targeted at attempts to zone out churches. While subsection (A) appears to need no clarification, subsection (B) is very interesting. It creates an issue of fact as to whether a regulation's limitation of religious uses is reasonable. It also raises an issue common to practitioners of adult entertainment litigation: what reasons, and what studies and evidence, did the local government rely upon if it chooses to limit the zones in which a religious institution may be located. This issue, too, has been explored very little in the Eleventh Circuit.
An important point to keep in mind is that the strict scrutiny test and the jurisdictional nexus provisions are in subsection (a) of 42 USC 2000cc, the same section that provides the substantial burden provision discussed above. The other three substantive provisions are located in subsection (b) of that statute. It could be argued from the plain language then that the strict scrutiny and jurisdictional nexus provisions only apply to the substantial burden provision, and thus if a land use regulation were discriminatory under one or more of the subsection (b) provisions, it would per se be void, without the need of applying the strict scrutiny test. However, the Eleventh Circuit has determined that the strict scrutiny test does applies to the subsection (b) provisions, following the Smith and Lukumi cases that predated RLUIPA.54 In the end, this may be a distinction with little difference, as most restrictions will fail under the strict scrutiny test.
With that in mind, what must a local government do or not do to avoid RLUIPA challenges? It is clear that RLUIPA does allow regulation of churches, and does not necessarily require more beneficial treatment of churches than of secular uses. However, a land use regulation may not treat secular assemblies and institutions more favorably than religious institutions. Thus, a zoning ordinance that allows secular assemblies in a given district but not religious assemblies may be struck down. A common pitfall involves permitting certain secular assemblies as a matter of right, but requiring churches to obtain special use permits. Similarly, it would be a violation to place a minimum acreage requirement on churches but not secular assemblies. These would all be facial violations; at the same time, it is clear that if local government action under a facially-neutral ordinance results in disparate treatment, then RLUIPA will likely have been violated. For example, if all religious and secular assemblies require a special use permit under the ordinance, but in practice the local government only grants special use permits to secular uses, a RLUIPA claim will most likely lie. Similarly, it may be a violation if special use permits are granted to mainline religions, but not to a certain sect or denomination. And it might be a violation if a facially-neutral requirement, such as a minimum number of parking spaces, were strictly applied to a certain church, but was overlooked in regards to secular or other religious assemblies. Thus, in a nutshell, RLUIPA requires a local government to allow religious exercise, within reasonable limits, and to treat religious institutions at least as favorably as secular assemblies.
V. FAIR HOUSING ACT & AMERICANS WITH DISABILITIES ACT
Local government zoning ordinances typically delineate districts which allow certain permitted uses and prohibit certain others. In doing so, certain groups who seek to utilize a given use in a particular district may be limited or even prohibited from doing so because of the provisions of the applicable ordinance. When this is the case, these individuals often bring challenges to the offending ordinance based on the provisions of the Constitution, such as the Equal Protection Clause, as well as statutory provisions such as the Fair Housing Act and the Americans with Disabilities Act.
Under an Equal Protection analysis, if a regulation classifies on the basis on any one of a number of suspect classifications such as race, alienage, or national origin, the regulation will almost always be deemed unconstitutional under the courts' strict scrutiny standard. In those instances where a quasi-suspect class is implicated, the Court will apply an intermediate level of scrutiny. In a seminal U.S. Supreme Court case based on the denial of a special use permit for an organization to operate a home for the mentally handicapped, the Court held that mental retardation is not a suspect class, nor a quasi-suspect class, for which a heightened level of scrutiny would apply. The Court did, however, reach the finding that the City's requirement of a special use permit for a home for the mentally handicapped, while not requiring such a permit from other similar uses such as nursing homes, hospitals, and apartments, failed to satisfy even the Court's lowest level of scrutiny: the rational basis test. This decision is extremely important under Fair Housing Act and ADA analysis. The FHA states that discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped] person[s] equal opportunity to use and enjoy a dwelling." Similarly, the Americans with Disabilities Act decrees that local governments are explicitly prohibited from administering licensing and zoning permit procedures in a manner that subjects people with disabilities to discrimination on the basis of their disability. Therefore, provisions like those in Cleburne will offend not only the Federal Constitution, but often the Fair Housing Act and Americans with Disabilities Act as well.
Similarly, the FHA also prohibits the "refus[al] to sell or rent ... or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin." In order to prevail on a claim under the FHA, an aggrieved party must demonstrate unequal treatment on the basis of race that affects the availability of housing. Most importantly, the courts have held that housing may become unavailable within the meaning of the FHA as a result of zoning decisions that effectively prohibit the construction of housing. The requirement that the unequal treatment be on the basis of race generally precludes claims where an individual cannot show intentional discrimination. However, an individual can also prove a prima facie violation of the FHA by a showing of significant discriminatory effect.63 A party can demonstrate a discriminatory effect in two ways: it can show that the decision has a segregative effect or that it makes housing options significantly more restrictive for members of a protected group than for persons outside that group.64 Therefore, local governments in enacting such ordinances should keep in mind not only their responsibilities to not offend the Federal Constitution, but should also be weary of the effects that their ordinances have on individuals within the classes of persons protected by the FHA and ADA.
1 Pack v. Clayton County, (Not published, 1993 WL 837007)(N.D. Ga., 1993), affirmed at 47 F.3d 430 (11th Cir, 1995); Open Homes Fellowship, Inc. v. Orange County, 325 F.Supp.2d 1349 (M.D. Fl., 2004); and City of Cleburne v. Cleburne Living Center, 105 S.Ct. 3249 (1985).
42 USC § 2000cc; Midrash Sephardi, Inc. v. Town of Surfs>e, 366 F.3d 1214 at 1227 (11th Cir., 2004); Konikov v. Orange County, Florida, 410 F.3d 1317 (11th Cir., 2005); Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295 (11th Cir. 2006).
Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1072 (11th Cir. 1996).
Baytree of Inverrary Realty Partners v. City of Lauderhill, 873 F.2d 1407 (11th Cir. 1989).
Cobb County v. McColister, 261 Ga. 876, 413 S.E.2d 441 (1992).