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Can a Zoning Ordinance be a Prior Restraint on Free Speech?

Written by Lawrence Opalewski on January 13, 2023 Category: Firm News

One of our practice areas as a firm is to challenge unlawful zoning ordinances. There are a number of ways a zoning ordinance could be unlawful, one of which is by being a “prior restraint” on First Amendment free speech. Courts are usually hesitant to find an ordinance is a prior restraint. But a recent case from the Ninth Circuit shows that such a challenge can be viable.

In Spirit of Aloha Temple v. County of Maui, the County of Maui Planning Commission denied the Spirit of Aloha Temple’s application for a special use permit to hold religious services and other events on agriculturally zoned property. The Temple brought a federal lawsuit alleging, among other things, that the County’s zoning scheme was a prior restraint on First Amendment rights. The district court granted summary judgment in favor of the County. The Temple appealed to the Ninth Circuit.

On appeal, the Temple argued that the County permitting scheme “grants permitting officials an impermissible degree of discretion,” and thus “fails to qualify as a valid time, place, and manner restriction on speech.” This argument was based on the criteria to obtain a special use permit for religious land use. The Temple argued, and the court agreed, that the permitting regulations allow the Commission unbridled discretion to rely only on an arbitrary guideline—whether “[t]he proposed use would not adversely affect surrounding property”—to deny a special use permit application.

In ruling for the Temple, the court noted that a guideline allowing a limitless range of subjective factors for denial is untenable and allows unbridled discretion. Further, the court stated it was not bound by officials’ promises that they will enforce the guidelines responsibly. The Court ultimately found in favor of the Temple and remanded the case.

Many zoning ordinances throughout the Country contain provisions allowing municipal officials unbridled discretion in land use decisions. When these ordinances impact protected expression, they may be unconstitutional. The attorneys at Dalton & Tomich enforce the rights of landowners around the Country. If you believe your rights are being infringed by a zoning ordinance, please do not hesitate to contact us. We would be happy to speak with you.

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