Nelson Symposium discusses local government liability under federal law
by Troy Hillier
On Feb. 12, local and national experts gathered at the UF Hilton for the Richard E. Nelson Symposium, with this year’s event titled, “Local Government Liability Under Federal Law: Regulating the Sacred and the Profane.” Dean Robert Jerry began the event by expressing his appreciation for the symposium’s namesake, whose generosity made it possible to bring Professor Michael Allan Wolf to UF Law as the Richard E. Nelson Chair in Local Government Law.
Wolf then stepped to the podium and began by offering an analogy. He suggested that local government attorneys could find their ancient Greek equal in the muse Cassandra, who could tell the future, but never convince anyone of its truth. “So imagine you, Cassandra-like, trying to explain the due process clause to lay people,” Wolf said, stating that it’s not easy to get lay people to understand that, in law, words like ‘Congress’ may not mean what they think.
If that wasn’t enough to deal with, those Cassandras must also deal with voters, who Wolf analogized to sirens. “One of the toughest tasks that local governments have is to resist the insiders,” Wolf said, noting that individuals will often pressure their governments to pass unconstitutional measures. His solution to dealing with the sirens was a fitting one. “Put wax in your ears,” Wolf said.” “Well, leave them open a little, after all, they deserve to be heard.”
Ashira Ostrow, a professor at Hofstra University School of Law, took the podium next to speak about the ‘sacred’ side of things. This was represented by discussion of the fairly recent Federal RLUIPA statute (Religious Land Use and Institutionalized Person Act). While Ostrow, who holds a bachelor’s in religion in addition to her JD, discussed RLUIPA directly, she also discussed how it could be a model for land use planning as a whole.
The problem with contemporary zoning, Ostrow said, is that it usually lacks objective guidelines. As such, important decisions are often highly discretionary and suffer from “NIMBYism” – NIMBY meaning ‘not in my backyard.’ However, challenges brought under RLUIPA face stricter standards when as-applied challenges are brought, and Ostrow suggested that such a system would benefit zoning as a whole. “RLUIPA is important not only for religious land uses,” she said, “but for what it says about the land use process.”
Ostrow recognized the deferential the deferential standard created in the landmark zoning case of Village of Euclid v. Ambler Realty, but also noted that Euclid was a facial challenge to the constitutionality of the zoning statute. Ostrow suggested that courts follow the case of Nectow v. City of Cambridge more often, as that case suggested a much less deferential standard when a challenge is applied to a specific circumstance.
Franklin Zemel, a partner at Arnstein and Lehr in Ft. Laurderdale, continued the discussion by sharing his experience in litigating these matters. Zemel told the audience of one of his clients, who were given a license to operate as a church meeting center, with the limitation that they could not provide church services. Zemel said that, in this case, one letter from him was enough to get the local government to change their seemingly illogical position.
Zemel applauded that local government for correcting their mistake, and then told the audience what often happens to those that insist on litigating the matter. Since prevailing parties are often able to recover attorney’s fees in these cases, judgments against local governments can get very expensive. Zemel highlighted a few cases in which the judgments and attorneys fees added up to hundreds of thousands, or even millions of dollars.
Alan Weinstein, a professor at Cleveland-Marshall College of Law, and Marie Hartman, the City Attorney for Daytona Beach, spoke next. Their speeches covered the ‘profane’ side of things, with the focus on sexually-oriented businesses and how they can be regulated. Weinstein explained that such regulations are seen as content-neutral as long as the regulation is done for to reduce the crime associated with such businesses, and then sought to show that such a correlation does exist. Hartman followed, detailing the long road that Daytona Beach has traveled in their attempts to regulate sexually-oriented businesses in the city.
Students took the stage next, as 3L Tara Nelson and 2L Dwayne Robinson, discussed recent statutes and court decisions. Asmara Tekle, a professor at the Thurgood Marshall School of Law, and Steven Wernick, an attorney at Bilzin Sumberg Baena Price & Axelrod in Miami, capped off the event by discussing sex offender residency requirements.
This was the ninth symposium honoring Richard E. Nelson– who served with distinction as Sarasota County attorney for 30 years–and Jane Nelson, two loyal UF alumni who gave more than $1 million to establish the Richard E. Nelson Chair in Local Government Law, which sponsors the annual event. Their support of the Levin College of Law’s Environmental and Land Use Program has been key to the program’s success and national recognition for excellence.