Rezoning in compliance with court order not a taking

by Melanie Thwing

Bettendorf v. St. Croix County
(Federal 7th Circuit Court of Appeals, January 20, 2011)

John Bettendorf owns property in St. Croix County, WI. Although the property was originally zoned agricultural-residential in 1972 he began to run a carpet business out of his basement. Then in 1974 he began to run an excavating company from the property. In 1984 Bettendorf applied to the County to re-zone a portion of his land to commercial.  The the application was approved with the stipulation that the rezoning was not transferable to any subsequent landowner, and upon such a transfer, or Bettendorf’s death,  the zoning classification of the property will revert to agricultural-residential. Bettendorf used the property in a commercial manner after the ordinance was enacted, but fully knowing that the language of the permit would not allow him to regain any commercial investment when he went to sell the property Bettendorf petitioned to make the re-zoning permanent. In 2004, Bettendorf filed an action in the Circuit Court for St. Croix County seeking a declaratory judgment that the conditional language was void and should be stricken from the ordinance. The circuit court found in favor of Bettendorf, but on appeal the Wisconsin Court of Appeals held the ordinance void in its entirety. In July 2007, the circuit court entered a revised judgment and order rescinding the commercial zoning of the disputed parcel in accordance with the Court of Appeals’ decision. The County complied with the order by rescinding the commercial zoning designation.  Bettendorf then sued in federal court.

Bettendorf argued that the County’s rescission of the commercial zoning designation following the court’s decision constituted a taking. He also argued that he was not given appropriate substantive and procedural due process protections. The Federal 7th Circuit observes that to prove a regulatory taking the government action must deprive the landowner of “all or substantially all practical uses of the property.” Bettendorf argued that the court did not adequately consider his anticipated and distinct investment opportunities. The court disagreed, stating that Bettendorf made improvements to his property with full knowledge that the commercial zoning classification was not going to be permanent.  When he began litigation he fully assumed the risk that the scope of the ordinance could be reinterpreted. Bettendorf still maintains full use of his property for agricultural and residential purposes, which simply restores the land to its original use.

Bettendorf argued he was “denied the protection of the substantive legal standards that would have been applied to a change in zoning….” The court found this argument to be without merit. The County’s decision to remove the commercial zoning designation was simply in accordance with the Court of Appeals decision. Therefore it could not be “conscious-shocking or arbitrary,” the showing needed to prove a substantive due process claim. 

As for Bettendorf’s procedural due process claim, Bettendorf was afforded the the opportunity to avail himself of due process protections through the state court system, yet he chose to bypass the state court appeals process. This seriously “undermines his argument that the state court process was deficient.” The Seventh Circuit ruled for the County on all claims.

Minutes of meeting sufficient record for denial of cell tower application

by Allison Arends

Helcher v. Dearborn County (IN) Board of Zoning Appeals
(Federal Seventh Circuit Court of Appeals, February 9, 2010)

Cincinnati Bell wireless (Bell) applied for a conditional use permit to construct a cell phone tower on agriculturally zoned property owned by Dan and Merry Helcher. Bell was advised that in order to meet the Dearborn Zoning Ordinance they had to abide specifically by sections 3 and 15 of the Ordinance, which require Bell to obtain a conditional use permit and avoid causing a “negative impact on the character and environment of the County and to protect the health, safety and welfare of the public.” When the Zoning board met to review the application neighboring property owners objected to the permit, providing evidence that the tower would damage property values, cause possible hazards and dangers for children, and would be incompatible with the appearance and character of the area. As a result, the board denied Bell the conditional use permit. Despite several disagreements regarding the content of the minutes taken during the meeting, they were later approved as “revised minutes” by the board.

Bell and Helcher filed a complaint against the board arguing that the board violated the Telecommunications Act of 1996 for three reasons:  (1) the approved minutes of the public hearing did not constitute an adequate written record, (2) the board’s decision was not based on substantial evidence contained in a written record as required by 47 U.S.C 332 (c) (B) (iii), (3) the zoning board’s decisions unreasonably discriminated against Bell, and (4) the board’s decision had the effect of denying the provision of wireless communication services. The district court granted summary judgment to the defendants and Bell and Helcher appealed.

The court first addressed the plaintiff’s claim that the minutes were not an adequate form of written record.  According to the Telecommunications Act, “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” The court recognized that there are many different interpretations of what is considered an adequate written record. Therefore the court defined the purpose of the “in writing” requirement as a provision which “allows meaningful judicial review of local government actions relating to telecommunications towers.” With this purpose in mind, the court adopted the standard used by the First and Sixth Circuit Courts of Appeals, which explains that the written record must, “contain sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.” As a result the court found the minutes adequate because it provided the decision of the board, supplied the reasons underlying the board’s decision, and it allowed for meaningful judicial review of the decision.  The court found that the minutes clearly delineated the issues that arose with the application, provided evidence of both sides, illustrated the concerns of the applicants the residents of the area and the board members, as well as cited the specific provisions of the ordinance that the voting members found were not met by the application.

Bell’s second claim originated from a section of the Telecommunications Act that states, “any decision by a state or local government to deny a request to place, construct, or modify a personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” In response the court applied the substantial evidence test, and found that the board’s decision to reject the permit on aesthetic grounds was supported by substantial evidence that included propagation maps, mock-ups of the proposed tower, a report on the aesthetic values at stake, public commentary and a presentation from the wireless carrier.

The court found that the board did not discriminate against Bell noting that there was an absence of evidence to show that the board had treated another functionally equivalent provider more favorably than Bell. Finally, the court found that the board’s denial of the permit was not denying the provision of wireless communication services, owing to the fact that there was no evidence that Bell had adequately investigated, to the board’s satisfaction, other kinds of zoned land that would be more compatible with the construction of the tower. The court found that, “so long as the service provider has not investigated thoroughly the possibility of other viable alternatives, the denial of an individual permit does not ‘prohibit or have the effect of prohibiting the provision of personal wireless services.’

LaCrosse, WI resident fails to establish “class of one” Equal Protection claim

by Allison Arends

John G. Reget v. City of La Crosse
(Federal Seventh Circuit Court of Appeals, February 8, 2010)

John Reget and the City of La Crosse have had a long harsh relationship regarding Reget’s operation of a body shop/ automobile restoration business. The conflict between Reget and the City began in 1985 and has involved several citations for code violations, all of which were dismissed. One example of this strained relationship occurred In 1990 when the City cited Reget for a violation of the junk-dealer ordinance. The citation was later dismissed by Reget’s promise to construct a fence around his property, a promise that was never fulfilled. A second example occurred In 1995 when the City aimed to rezone 100 properties (including Reget’s property) from “heavy industrial” to “residential”. Reget confronted the City claiming he was being singled out by the rezoning. Again, the City compromised with Reget and agreed to refrain from rezoning his property as long as he was to construct the promised fence as well as comply with noise ordinances. Reget agreed to both requirements.

In 2006 Reget filed a lawsuit alleging that the City and various city officials violated his equal-protection rights by: 1. selectively enforcing its junk dealer ordinance against him 2. targeting him for rezoning in a discriminatory fashion 3. selectively enforcing its noise regulations. The district court granted the City’s motion for summary judgement, holding that Reget failed to establish that a similarly situated business was treated more favorably.

The Equal Protection Clause of the Fourteenth Amendment, “prohibits state action that discriminates on the basis of membership in a protected class or irrationally targets an individual for discriminatory treatment as a so-called ‘class of one.'” The court clarified that the class-of-one theory must establish that (1) a state actor has intentionally treated him differently than others similarly situated, and (2) there is no rational basis for the difference in treatment. The court found Reget’s equal protection claim failed in the first step of the test because, “in order to prove a class-of-one claim the persons alleged to have been treated more favorably must be identical or directly comparable to the plaintiff in all material respects.” Reget did not provide evidence that similarly situated auto-salvage businesses were treated more favorably.

Although Reget presented examples of several other auto-repair shops in La Crosse that were not cited for violating the junk-dealer ordinance, there was no evidence that these businesses violated the ordinance at any time. Even more, the court noted that Reget’s citations were settled through voluntary agreements which cannot support a claim of class-of-one equal discrimination. The court also finds Reget’s claims that the City singled him out for rezoning irrelevant based on the fact that Reget’s property was never rezoned. Finally, in response to Reget’s claim that the City enforced noise ordinance requirements on him and not equally on his neighbors, the court found his claim to be “backwards.” He did not provide evidence that he was first cited under the noise ordinance and a similarly situated ordinance violator was not.

No Equal Protection claim in village’s refusal to assume private water system

by Gary Taylor

Susan Srail, v. Village of Lisle, IL
(Federal Seventh Circuit Court of Appeals, December 7, 2009)

A small group of residents of a subdivision in the Village of Lisle, Illinois brought a class action suit against the Village, claiming a violation of their rights under the Equal Protection clause of the US Constitution.

The Oak View subdivision was built in the 1950s, and in 1956, the developer created its own water and sewer utility to serve Oak View residents. Since that time, a privately owned utility company has provided Oak View residents with their water needs. The Village of Lisle, Illinois, was incorporated in 1956. In 1967, Lisle developed its own water system. Prior to that time, most residents received their water through private, underground wells. Lisle’s system grew gradually as developers built new housing developments, installing water mains that the developers then donated to Lisle. In 1980, Lisle purchased one of the two privately owned water companies operating in town, which also contributed to the growth of the Lisle system. Lisle did not purchase the privately owned water company operating in Oak View. The Lisle system received its water supply from the DuPage Water Commission (“DWC”), which provided water from Lake Michigan to the utilities with which it contracted. Lisle would then deliver this water to its customers. The water company serving Oak View entered into a similar contract with DWC to receive its water; however, because of difficulties in transporting the water from DWC to Oak View, Lisle entered into an agreement with DWC and the water company in 1995 providing that Lisle would deliver the water purchased by the water company from DWC’s facilities to Oak View. In 2002, Illinois-American Water Company (“IAWC”) purchased the water company that operated in Oak View, becoming the exclusive operator of the water system in the subdivision. Under both IAWC and its predecessor, Oak View’s water system operated with pressure insufficient to extinguish fires. The concern over water pressure sparked the litigation in this case.  The Oak View litigants claimed that Lisle impermissibly discriminated against them by expanding its water services to other subdivisions within Lisle, but refusing to expand its services to Oak View despite the problems with water pressure.

The Seventh Circuit restated the settled law that an equal protection violation occurs when a regulation draws distinctions among people based on a person’s membership in a “suspect” class (suspect classes include race, alienage, and national origin) or when the government action denies of a fundamental right (fundamental rights include freedom of speech and religion. With both suspect classes and denials of fundamental rights, the government’s justification for the regulation must satisfy the strict scrutiny test to pass muster under the Equal Protection Clause.  The court found neither scenario present in this case.  The residentsare not members of a suspect class.  Likewise, the Constitution creates no positive entitlement to fire protection, nor is the right to continued municipal water service a fundamental right. 

In the absence of deprivation of a fundamental right or the existence of a suspect class, the proper standard of review is rational basis. Rational basis review requires the plaintiff to prove that (1) the government intentionally treated plaintiffs differently from others similarly situated; (2) this difference in treatment was caused by the plaintiffs’ membership in the class to which they belong; and (3) this different treatment was not rationally related to a legitimate state interest. Lisle asserted that it had an economic reason for its refusal to extend its system into Oak View; i.e., that the costs associated with an extension, coupled with its assessment of resident disinterest and the unlikely success of an expansion, provided it a rational basis for its decision. Lisle pointed to the fact that an expansion into Oak View would cost it approximately four million dollars.  Lisle would normally recoup the costs of an expansion by passing these costs on to residents who connect to the Lisle system; however, Lisle surveyed nineteen Oak View homeowners who lived adjacent to existing Lisle mains. Out of the nineteen surveyed, only one expressed interest in connecting to the Lisle system.  Appellants claim that Lisle’s failure to survey all of the Oak View residents made its reliance on the nineteen responses unreasonable.  The court confirmed, however, that rational basis review, “courts are compelled . . . to accept a legislature’s generalizations . . . .”  Considering that Lisle had a rational basis for refusing to assume the subdivision’s private system into the municipal system, the Seventh Circuit affirmed the judgment for Lisle.

7th Circuit rules on city’s point-of-sale inspection ordinance

by Gary Taylor

Hussein H. Mann, et. al. v. Calumet City, IL
(Federal Seventh Circuit Court of Appeals, December 7, 2009)

Post-sale inspection ordinance found constitutional. 

Calumet City, Illinois has an ordinance that forbids the sale of a house without an inspection to determine whether it is in compliance with the City’s building code.  The ordinance requires a property owner to notify the City government of a proposed sale of his property. The City has 28 days after receiving the notice to conduct a compliance inspection. During that period it must notify the owner of its intention to conduct the inspection. If he responds that he won’t consent to an inspection, the City has 10 days within which to get a warrant from a judge.  Within three business days after conducting the inspection (whether or not pursuant to a warrant) the City must notify the owner whether the house is in compliance with the building code and, if not, what repairs are required to bring it into compliance. If the inspection discloses an unlawful conversion of the house to a multifamily dwelling, the order, instead of being a repair order, will order deconversion. After the City is notified that the repairs have been made or deconversion effected, it has three business days within which to reinspect. An owner who is in a hurry to sell the house can do so before completing the ordered repairs or deconversion if his buyer posts a bond equal to the expected cost of bringing the house into compliance. The buyer then has 180 days to complete the repairs or deconversion; if he fails to do so, the City can ask a court to order him to do so. The owner can appeal a repair or deconversion order to the City’s Zoning Board of Appeals, where he is entitled to a full hearing. The appeal stays the City’s order. An owner who loses in the board of appeals is entitled to judicial review in the Illinois state court system in the usual manner.

Plaintiffs challenged the constitutionality of the ordinance “on its face,” meaning that in any application of such an ordinance it does not meet constitutional muster.  The district court dismissed the claims, and Plaintiffs appealed to the Seventh Circuit.

Plaintiffs challenged the ordinance on substantive due process grounds, arguing that there was no rational basis for the regulation.  After pointing out that Plaintiffs were engaging in an “uphill fight” to prove their claim, the court examined Plaintiffs’ arguments.  The court observed that building codes, to which the challenged ordinance are the most reasonable of regulations:

“They do increase the cost of property (as do other conventional regulations of property), but if reasonably well designed they also increase its value. Without them more buildings would catch fire, collapse, become unsightly, attract squatters, or cause environmental damage and by doing any of these things reduce the value of other buildings in the neighborhood. Assuring full compliance with building codes is difficult after a building is built, because most violations are committed inside the building and thus out of sight until a violation results in damage visible from the outside. …All this seems eminently reasonable….”

The Plaintiffs also raised a procedural due process claim, questioning the procedural adequacy of the method by which the City’s ordinance is enforced.  The Plaintiffs argued that it fails to provide for “pre-deprivation” procedures; that the City should be required to go to court, or conduct an administrative hearing before it can order repairs or deconversion.  The court dismissed this line of reasoning, pointing out that a homeowner can challenge the order, and if he does it is stayed.  “That is pre-deprivation process…. All that is required is . . . notice and an opportunity to be heard before being deprived of a protected liberty or property interest.”  The Seventh Circuit affirmed the district court’s dismissal.

Church’s request for preliminary injunction under RLUIPA fails

by Allison Arends

River of Life Kingdom Ministries v. Village of Hazel Crest
(Federal Seventh Circuit Court of Appeals, October 27, 2009)

The River of Life Kingdom ministries, a nonprofit religious organization, attempted to move the location of its congregation from a warehouse in Chicago Heights to Village of Hazel Crest. The church stated that its main objective in choosing the Village, which had been in serious economic decline since the 1990s, was to promote its mission of promoting literacy, empowering communities, developing leaders, transforming economic conditions, and improving life, health, and safety for local citizens in this particular struggling community.  The property purchased by the church was in a Tax Increment Financing (TIF) district established to “provide an attractive commercial area that enhances the regional image of Hazel Crest.”  The zoning ordinance that controlled the TIF district was “Service Business District” and authorized commercial uses for the property but excluded religious services except by special use permit.  The church, expecting to receive a special use permit from the Village, bought the property regardless of the specific provisions of the zoning ordinance.  The Village denied the church’s request for a special use permit.

The church filed a complaint in which alleged that the Village’s ordinance violated the 1st Amendment, the Equal Protection clause, and the Substantial Burden and Equal Terms Provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA). While the motion for preliminary judgement was pending before the court, the Village changed the zoning ordinance to also exclude other forms of assemblies such as community centers, non-religious schools, meeting halls etc. This change in the ordinance was the Village’s attempt to conform to the provisions of RLUIPA. The district court rejected the church’s request for preliminary injunction and the church appealed. The issue of this appeal to the Seventh Circuit revolves around the equal terms provisions set out in RLUIPA and whether the Village violated those provisions.  RLUIPA states;

“No government shall impose or implement a land use regulation in a manner that greats a religious assemblyor institution less than equal terms with a non-religious assembly or institution.” 42 U.S.C. 2000cc(b)(1)

The Seventh Circuit was given the task of reviewing the district court’s refusal to issue a preliminary injunction.  To obtain a preliminary injunction, the church was required to show (1) the church was likely to succeed on the merits of the case, and (2) the harm to the church that would come without the injunction would outweigh the harm done to the Village if the injunction were granted.  

As to the first requirement of awarding a preliminary injunction, the court evaluated whether the church was likely to win on the merits of the case.  The church argued that the Village’s ordinance violates RLUIPA in the fact that laws must treat religious and non-religious assemblies on equal terms.  The interpretation and application of the equal terms provision of RLUIPA was a matter not previously addressed by the Seventh Circuit.  The Seventh Circuit looked to conflicting interpretations by the Eleventh and Third Circuits for guidance.  

The Eleventh Circuit court used the natural meaning of “assembly” from the dictionary to determine that private clubs and lodges were assemblies similarly situated to churches and synagogues, therefore only looked at the definition of assembly to determine whether there was a violation of RLUIPA. This logic, applied to the present case, would most likely find the Village’s ordinance in violation of RLUIPA.

The Third Circuit court, however, not only takes into account the definition of assembly but analyzes the intent of the Village’s ordinance to determine its neutrality. The Third Circuit evaluated the objectives of the ordinance by determining the principles of neutrality that The Supreme Court established in Employment Div. Dept. of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) The Supreme Court found that, “the right of free exercise of religion does not require the courts to invalidate neutral laws of general applicability.” The principles of neutrality find an ordinance discriminatory 1.) if it refers to a religious practice without a secular meaning discernible from the language or context and 2.) if its object is to suppress religious practice. Based on these principles the court argues that,

“facial differentiation between religious and non-religious institutions alone was insufficient to demonstrate that the ordinance was non-neutral. Only when the institutions had the same effect on the city’s objectives was the regulation discriminatory.”

The court noted that the Eleventh Circuit court’s rationale would, “significantly expand the scope of local ordinances implicated under RLUIPA. There is no shortage of hypotheticals demonstrating the dangers of such an expansive reading of the Equal Terms provision.” and that, “if used would significantly impede the ability of local governments to pass legislation that place incidental burdens on any religious practice.” The court finds that the proper interpretation of “less than equal” lies within the Third Circuit’s decision because they found it is, “more consistent with Congress’s intent and with the case law interpreting the Free Exercise Clause.”

The court then went on to evaluate the other issue in the question of preliminary injunction. The court was challenged with deciding whether the Church will suffer irreparable harm if it is not allowed to relocate immediately, and if so, whether it exceeds the harm an injunction would cause to the Village. Because the court cannot presume that RLUIPA and First Amendment violations are one and the same, the Church must explain how the inability to relocate to the Village’s TIF District inhibits its religious exercise (irreparable harm). The Church attempts to argue that its mission is directly tied to the specific location. The court recognizes the possible harm this may cause to the Church, but the court goes on to explain that it must use a “sliding scale” approach in evaluating the harm to both parties. Because it has been determined the Church will most likely lose in the merits of the case, the Church must show their harm significantly outweighs the harm to the Village. The court finds that allowing the church to locate to this district would be incompatible with the Village’s development plan and recognizes that, “uncertainty over the Village’s ability to enforce its zoning ordinance, or the future direction of the community, would likely compromise this goal in the future… presenting a significant but unquantifiable threat to the village’s redevelopment plan.” The court concludes that the Church’s harm does not significantly outweigh that of the Village. The judgement of the district court is affirmed.

FHA claims held to apply to post-sale actions of condo association

by Gary Taylor

Bloch v. Frischholz and Shoreline Towers Condominium Association
(Federal 7th Circuit Court of Appeals, November 13, 2009)
(For a map of the geographic boundaries of the federal courts of appeals click here)

7th Circuit Court of Appeals remands to district court claim for post-sale discrimination under Fair Housing Act.

The Blochs are long-time residents of the Shoreline Towers condominiums, subject to the rules and regulations of the Shoreline Towers Condominium Association (STCA).  For roughly 30 years the Blochs displayed a mezuzah (a small rectangular box that houses scriptures from the Torah) on the exterior doorpost of their home (Many Jews believe they are commanded by God to affix a mezuzah on the right doorpost when facing into the home.  They touch the mezuzah and pray when entering the home).  In 2001 the STCA rules committee enacted a set of rules to govern activities taking place in the common hallways.  Lynne Bloch chaired that committee and voted in favor of the rules, one of which was that “mats, boots, shoes, carts or objects of any sort are prohibited outside unit entrance doors.”  Until mid-2004 the STCA did not remove mezuzot (plural of mezuzah) or any other object affixed to the outside unit doors or doorposts; however, in 2004 after the building hallways were remodeled the STCA began removing and confiscating the mezuzot, using the above-referenced rule for support.  The STCA also began confiscating crucifixes, wreaths, Christmas ornaments, political posters “and Chicago Bears pennants.” 

The Blochs voiced their concerns to the STCA and its president, Edward Frischholz; however, their concerns were not heeded.   Instead Frischholz “accused Lynne Bloch of being a racist, called her a liar, encouraged other tenants to vote against her re-election to the Association’s Board of Managers, and told her that if she did not like the way the rules were enforced she should ‘get out.'”  He also admitted that he purposefully held Board events on Friday nights, knowing that she could not attend due to her religious obligations.  The Board rejects any rules change, and went on to warn the Blochs that they would be fined if they continued to display a mezuzah.  For over a year, each time the Blochs put their mezuzot back up, the STCA took them down, even on the occasion when Lynne Bloch and her family were out of the building at the cemetery for the funeral of Lynne’s husband.  On the occasion of the funeral, the STCA even left tables and chairs near the door in the hallway in place – tearing down only the mezuzah.

In September 2005 the Blochs filed suit, seeking an injunction to prevent the STCA from removing the mezuzot, and damages for emotional distress.  The Blochs asserted three theories based on the Fair Housing Act (FHA).  First, section 3604(a) makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex familial status, or national origin.”  The Blochs asserted that the “otherwise make unavailable” language allows claims for actions that take place after the sale, and that the actions of the STCA in this case constituted “constructive eviction,” by rendering Shoreline Towers unavailable to them and other observant Jews because their religion does not permit them to live in a dwelling where a mezuzah is not permitted to be affixed to the doorway.  The 7th Circuit ruled against the Blochs on this theory based on the fact that they never vacated the condominium, nor ever attempted to sell it to an observant Jew or any other individual.

The Bloch’s second claim was based on section 3604(b), which makes it unlawful “to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.”  On this claim the 7th Circuit remanded the case to the district court, stating that because the Blochs purchased a dwelling subject o the condition that the STCA can enact rules that restrict the buyer’s rights in the future, section 3604(b) prohibits the Association from discriminating against the Blochs through its enforcement of the rules, even if the rules themselves are neutral as written.     

The Bloch’s final FHA claim was based on section 3617, which makes it unlawful to “coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected by …section 3604…of this title.”  The Blochs argued that this section supports a post-acquisition discrimination claim independent of any allowed under section 3604.  “Interference” with the enjoyment of fair housing rights, they argued, encompasses a broader swath of conduct than an outright deprivation of those rights.  Noting that other federal courts are split on this issue, the 7th Circuit concluded that section 3617 does support an independent claim, because to hold otherwise would give section 3617 no independent meaning.  The court reasoned that in the Bloch’s case, even though the STCA’s enforcement of the rules did not constructively evict them, it does not foreclose the possibility that the STCA “interfered” with their enjoyment of their section 3604 rights or “coerced” or “intimidated” them on account of their having exercised those rights.  To rule otherwise would require the Blochs to vacate their home before they could sue. 

In order to move forward with any FHA claim, the Blochs must be able to prove discriminatory intent (the FHA allows a claim under a theory of disparate impact, but the Blochs waived any right to raise a disparate impact claim by not arguing it in the district court).  As the court characterized it, “the evidence must indicate that the STCA was not simply indifferent when it reinterpreted the rules, the evidence must show that the STCA reinterpreted the rules with Jews in mind.”  The 7th Circuit concluded that the record included sufficient evidence of discriminatory intent that their case should be allowed to go forward at the district court, although the case “may be difficult to prove.”   Frischholz’s comments, the repeated actions to take down the mezuzot, and leaving the tables and chairs in place at the time of the funeral – only to take down the mezuzah, provided sufficient evidence for the claims to survive summary judgment.

7th Circuit needs more evidence of secondary effects of adult entertainment establishment

by Allison Arends

New Albany DVD, LLC v. City of New Albany, Indiana
(Federal Seventh Circuit Court of Appeals, September 10th, 2009)
(For a map of the geographic boundaries of the federal courts of appeals click here)

Court remands case for evidence concerning trash and theft resulting from adult entertainment facility.

In 2003 the Plaintiff, New Albany DVD, bought property, secured all necessary licenses, and renovated a store for the operation of a store that sells adult books, magazines, and videos.  Plaintiff’s plans did not include live, on-site adult entertainment.  At the time of the purchase there were no zoning restrictions to the type of business New Albany DVD intended to operate, yet the City refused to carry out the final inspection of the store in February 2004, and on that day enacted a six-month moratorium on new adult businesses.  In March the City Council amended the zoning rules to forbid sexually-oriented business at the plaintiff’s site, and prohibited a sexually-orientated business from operating within 1,000 feet of a church or residential zone. The Plaintiff’s store is located 175 feet from the nearest church and 115 from the site of a proposed residential building. 

The plaintiff contended, among other claims, that under 42 U.S.C section 1983 and the First Amendment the studies used by the city to justify adverse secondary effects of adult stores on the community were flawed, in that those studies addressed the secondary effects of live adult entertainment facilities, not the retail-only type facility being proposed by the plaintiff.  The city argued that the studies used show a correlation between the concentration of sexually-orientated businesses and higher levels of crime and lower property values in a community; however, the city’s own expert “conceded that he knows of no research that shows… effects for various subclasses of business,” like the plaintiff’s retail-only store. 

The city also attempted to use its concerns over theft and trash to justify suppression of the plaintiff’s First Amendment right.  Using Alameda Books as precedent the Seventh Circuit quickly rejected the city’s theft argument by stating that it is paternalistic, and that the “police must protect the readers… rather than ease their workload by forbidding the speech,”  The Seventh Circuit found that New Albany did not supply sufficient evidence to support the the idea that adult bookstores located near churches or residences attract thieves.  The court goes on to reject the trash concern by stating that, the reduction in “adverse secondary effects may not be achieved just by curtailing speech… and that for this justification to work, it will be necessary to establish (a) how much sex-oriented litter an adult book- store generates; (b) who is likely to see that litter in the parts of New Albany where adult bookstores are allowed to operate; and (c) how much adult litter will remain in New Albany’s central business area (generated by adult corners of other businesses) if plaintiff is exiled to an industrial district or highway.”  The Seventh Circuit remanded the case to the district court to take further evidence concerning the city’s theft and trash justifications, and to apply intermediate scrutiny to New Albany’s ordinance.