Agenda - Planning Commission - 06/02/2016

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Zoning Bulletin May 10, 2016 I Volume 10 I Issue 9 SEVENTH CIRCUIT (INDIANA) (03/17/16)—This case addressed the issue of whether a plan commission's delay of approval of a proposed subdivision project was retaliatory in violation of the developer's constitu- tional rights. The Background/Facts: Tom and Marla Simstad (the "Simstads") were developers in Lake County, Indiana (the "County"). In 2004, they sought approval from the County Plan Commission (the "Commission") for a proposed subdivision project (the "project") on certain property. In late 2006, the Commission approved the plans for the project. However, by that time, the housing market had collapsed and the Simstads ultimately sold the property at a steep loss. The Simstads believed that approval of their proposed project was delayed, at a great cost to themselves, because of their support in 1996 for Plan Commission member Gerald Scheub's opponent in the County Com- missioner primary race. The Simstads sued those responsible for the ap- proval process, including: Commission member Scheub; Executive Direc- tor of the Commission, Ned Kovachevich; and the County (collectively, the "Defendants"). They argued, among other things, that Scheub violated their First Amendment rights by retaliating against them for their support of his opponent in the 1996 County Commissioner primary race. They also al- leged that Kovachevich, who opposed their project, personally violated their right to Equal Protection by influencing the Commission's vote. A jury found for the Defendants. The Simstads appealed. DECISION: Judgment of United States District Court for the Northern District of Indiana affirmed. The United States Court of Appeals, Seventh Circuit, first held that the Commission's delay in approving the project was not retaliatory in viola- tion of the Simstads' First Amendment rights. In so holding, the court explained that in order for the Simstads to prevail on their First Amendment theory, they would have to show that their conduct in supporting Commis- sion member Scheub's opponent in the 1996 County Commissioner pri- mary race was: (1) constitutionally protected; and (2) a substantial or motivating factor in the Defendants' delay of approval of the Simstads' subdivision project. The parties agreed that the first factor was met the Simstads' support of Scheub's opponent was constitutionally protected. However, the court found that protected action had nothing to do with the Commission's delayed action on the Simstads' proposed project. The court emphasized that the length of time since the Simstads' support of Scheub's opponent in the primary race had been nine years. The court found an absence of evidence that Scheub held any alleged grudge that long. The court also held that Kovachevich did not violate the Simstads' right to equal protection as a result of Kovachevich's opposition to their proposed project. The court found that Kovachevich did not have a vote on the proj- ect, and was not the sole author of staff comments on the project. The court also found that there was no evidence of animus on Kovachevich's part © 2016 Thomson Reuters 3