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Posted 04 Nov 2013 in Case Notes
Eagle Cove believed that its religion required it to hold its Bible camp in only one place: on its lake-side property in Oneida County, Wisconsin. But the County had zoned the property for residential use only. When Eagle Cove asked the County to re-zone the property, the County refused. When Eagle Cove asked for a conditional use permit so that it could hold the Bible camp anyway, the County denied that too.Wisc-lake Did the County's denials violate the Religious Land Use and Institutionalized Persons Act? In Eagle Cove Camp & Conference Center v. Town of Woodboro, No. 13-1274 (Oct. 30, 2013), the Seventh Circuit said "no." It affirmed the grant of summary judgment for the County and for the Town of Woodboro. No Total Exclusion One provision of RLUIPA provides that

Posted 18 Oct 2013 in Case Notes
The first significant case affecting local governments in this new Supreme Court term  -- Madigan v. Levin -- ended poorly. The Court resolved the case with a DIG -- the Court dismissed it as improvidently granted. Supreme Court3 What went wrong? And what can we learn from it about appellate jurisdiction? An Important Question The case had all the hallmarks of a classic Supreme Court case. The question presented was important. It asked whether when a state or local government employee alleges that his employer has discriminated against him because of his age, the Age Discrimination in Employment Act ("ADEA") provides his exclusive remedy, or whether he may also bring a claim under 42 U.S.C. 1983 because the discrimination violates the Constitution's Equal-Protection Clause. The question had divided the lower courts. The Seventh Circuit acknowledged that its holding -- that the ADEA does not prevent the employee from bringing a Section 1983 claim -- created a deep circuit split. And it had far-reaching implications. It could literally impact every state and local government. What Went Wrong? So why would the Court, after granting cert. and hearing oral argument, suddenly change its mind and toss the case?

Posted 23 Sep 2013 in Case Notes

The Ninth Circuit issued its decision Friday in Pacific Shores Properties, LLC v. City of Newport Beach, No. 11-55460. In the case, plaintiffs alleged that a City ordinance violated the Fair Housing Act, the Americans with Disabilities Act, the California Fair Employment and Housing Act, and the Equal Protection Clause because the ordinance had the practical effect of prohibiting new group homes for recovering alcoholics and drug users from opening in most residential districts. Although the district court had granted summary judgment for the City, the Ninth...

Posted 16 Sep 2013 in Case Notes
[caption id="attachment_107" align="alignright" width="199"]8th Circuit: Park did not adequately justify the need to limit literature distribution 8th Circuit: Park did not adequately justify the need to limit literature distribution[/caption] An evangelical Christian, Brian Johnson, sought to distribute Bibles at a gay-pride festival in a public park. The park board would not allow it. It had adopted a policy limiting literature distribution to confined areas, due to security concerns and the festival’s size. Johnson claimed the policy violated the First Amendment, and sought an injunction barring its enforcement. In a 2-1 decision released Wednesday, Johnson v. Minneapolis Park and Recreation Bd., the Eighth Circuit ruled that Johnson would likely prevail on his claim.

Posted 11 Sep 2013 in Case Notes
[caption id="attachment_89" align="alignright" width="300"]9th Circuit: Landlords do not have a viable constitutional claim against City housing program 9th Circuit: Landlords do not have a viable constitutional claim against City housing program[/caption] Your community’s housing conditions are in crisis. Too many landlords ignore codes. They disregard tenants’ concerns. And their properties are hardly habitable. But they continue to collect rent—from tenants with little capacity to protect themselves. So your local government fashions an innovative program, one that empowers tenants. It allows tenants living in troubled properties to withhold a portion of their rent and to use it for needed repairs. Landlords sue. They claim that your program violates their federal substantive due process rights. Do they have a winning constitutional argument? Not according to the Ninth Circuit, which ruled Monday in Sylvia Landfield Trust v. City of Los Angeles, No. 11-55904, slip op. (Sept. 9, 2013), that the City of Los Angeles’s Rent Escrow Account Program is constitutional.

Posted 10 Sep 2013 in Case Notes
[caption id="attachment_79" align="alignright" width="300"]Local government regulation of immigration through housing ordinances has divided the courts. Local government regulation of immigration through housing ordinances has divided the courts.[/caption] Can a local government prohibit the leasing of housing to persons who entered the United States illegally? Since June, three federal courts of appeals have tackled that difficult question—and reached different results. The decisions present a range of perspectives on whether local housing ordinances “conflict” with federal law or intrude upon a “field” reserved to the federal government. They highlight the uncertain contours of the preemption doctrine—and demonstrate the risk facing any local government that regulates in this space.

Posted 10 Sep 2013 in Case Notes
[caption id="attachment_72" align="alignright" width="300"]Federal preemption provisions must be read sensibly Federal preemption provisions must be read sensibly[/caption] [This is the second in a series of posts reviewing unheralded but noteworthy decisions for State and local governments from the Supreme Court’s last term. See Koontz here.] State and local-government attorneys often battle federal preemption—including against broad readings that strain common sense. The case of Dan’s City Uses Cars, Inc., v . Pelkey reminds you why it’s worth it. It’s the story of Robert Pelkey.

Posted 19 Aug 2013 in Case Notes
[caption id="attachment_48" align="alignright" width="300"]If you condition a land-use permit on mitigation or other responsibilities, you may have to defend the condition under Koontz. If you condition a land-use permit on mitigation or other responsibilities, you may have to defend the condition under Koontz.[/caption] With the Supreme Court recently concluding its 2012 term, now is a good time to look back. You have likely heard plenty about the Court’s high-profile holdings, including that: But it’s often the decisions that slip by quietly that impact you most. We’ll be publishing a series of posts about decisions that didn’t get a lot of press, but that are worth revisiting.

Posted 19 Aug 2013 in Case Notes
[caption id="attachment_39" align="alignright" width="300"]Build a record to justify your regulations, but resist claims that the evidence has to be beyond dispute. Build a record to justify your regulations, but resist claims that the evidence has to be beyond dispute.[/caption] Crime. Disease. Decreased property values. Adult-oriented businesses are disrupting your community. But you have a plan. You have fashioned a licensing scheme that prohibits nudity and the sale of alcohol at these establishments. You know that courts have allowed zoning regulations that address the “secondary effects” of these businesses. You also know that regulating these businesses can violate the First Amendment. But how closely will a court examine whether your regulations effectively eliminate these adverse effects?

Posted 19 Aug 2013 in Case Notes
[caption id="attachment_33" align="alignright" width="300"]The Supreme Court will evaluate local-government prayer practices this term. The Supreme Court will evaluate local-government prayer practices this term.[/caption] If your community starts its government meetings with a prayer, it might be violating the Constitution. In a case that the Supreme Court will consider in the coming term, Town of Greece v. Galloway, 12-696, the Court will decide whether a local government’s legislative prayer practice runs afoul of the Establishment Clause. The Second Circuit held that the Town of Greece’s prayer practice is unconstitutional because “an objective, reasonable person would believe [it] had the effect of affiliating the town with Christianity.”