News from North Dakota: Arbitrary and capricious explained, as is N.D. township zoning authority

July 30th, 2015

I’ve seen a couple of articles on the North Dakota Supreme Court case  of Dokter v. Burleigh County Board of Commissioners, discussed here, that suggest this case is causing quite the stir in the Peace Garden State (yes, I looked that up).  As in some other Upper Midwest states, townships have authority to adopt zoning.  Also as in some of these other states, the ability for townships to do so is subject to legislative rules that define the limits of that authority vis-a-vis county authority to do the same.  Prior to the 2015 state legislative session a township that unilaterally relinquished zoning authority to the county could not reclaim that authority.  Under a bill passed this year townships can now do so by mutual agreement with the county commission.

The Dokter case is apparently causing townships to consider this option.  A good article on this, and the “arbitrary and capricious” standard of review for zoning decisions adopted by most state courts (actually all state courts that I am familiar with) can be found here.

current news , ,

Ten Commandments monument on state capitol grounds prohibited by Oklahoma Constitution

July 29th, 2015

Note:  Because of its brevity and clarity, the Court’s opinion is reprinted in its entirety (omitting citations).

Prescott v. Oklahoma Capitol Preservation Commission
Oklahoma Supreme Court, June 30, 2015

Oklahoma citizens Bruce Prescott, James Huff, and Cheryl Franklin (complainants) seek removal of a Ten Commandments monument from the Oklahoma Capitol grounds. The monument was a gift from another Oklahoma citizen and was placed on the Capitol grounds pursuant to a Legislative act that was signed by the Governor. While conceding that no public funds were expended to acquire the monument, complainants nonetheless maintain its placement on the Capitol grounds constitutes the use of public property for the benefit of a system of religion. Such governmental action is forbidden by Article 2, Section 5 of the Oklahoma Constitution.

The trial court ruled that the monument did not violate Article 2, Section 5 and entered a summary judgment denying complainants’ request for an injunction. This Court reviews de novo the constitutional issue and the legal question resolved by the summary judgment…..Upon de novo review, the trial court’s ruling is reversed.

In deciding whether the State’s display of the monument in question violates Article 2, Section 5, the intent of this provision must be ascertained….Such intent is first sought in the text of the provision. Words of a constitutional provision must be given their plain, natural and ordinary meaning….

The text of Article 2, Section 5 states:

§ 5. Public money or property – Use for sectarian purposes.

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

The plain intent of Article 2, Section 5 is to ban State Government, its officials, and its subdivisions from using public money or property for the benefit of any religious purpose. Use of the words “no,” “ever,” and “any” reflects the broad and expansive reach of the ban….

To reinforce the broad, expansive effect of Article 2, Section 5, the framers specifically banned any uses “indirectly” benefiting religion. As this Court has previously observed, the word “indirectly” signifies the doing, by an obscure, circuitous method, something which is prohibited from being done directly, and includes all methods of doing the thing prohibited, except the direct means…. Prohibiting uses of public property that “indirectly” benefit a system of religion was clearly done to protect the ban from circumvention based upon mere form and technical distinction.

In authorizing its placement, the Legislature apparently believed that there would be no legal impediment to placing the monument on the Capitol grounds so long as (1) the text was the same as the text displayed on the Ten Commandments monument on the grounds of the Texas State Capitol, and (2) a non-religious historic purpose was given for the placement of the monument. To be sure, the United States Supreme Court case of Van Orden v. Perry, 545 U.S. 677 (2005), ruled that the Texas Ten Commandments monument did not violate the Establishment Clause in the First Amendment to the United States Constitution. However, the issue in the case at hand is whether the Oklahoma Ten Commandments monument violates the Oklahoma Constitution, not whether it violates the Establishment Clause. Our opinion rests solely on the Oklahoma Constitution with no regard for federal jurisprudence…. As concerns the “historic purpose” justification, the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths.

Because the monument at issue operates for the use, benefit or support of a sect or system of religion, it violates Article 2, Section 5 of the Oklahoma Constitution and is enjoined and shall be removed.

Oklahoma courts, State constitutions , ,

Landowner (and predecessors) implicitly dedicate road to township through actions over the course of a century

July 27th, 2015

by Andrea Vaage

Niemi v. Fredlund Township
South Dakota Supreme Court, July 15, 2015

David and Roxie Niemi filed a declaratory judgment action against Fredlund Township, South Dakota seeking a determination that the road traversing their property (their property being known as Section 20) was not a public road. The Niemis claimed the road on their property, locally called “Lewton Road,” was being used by Fredlund Township as a public road. During the hearing in circuit court, several residents and township officials testified that the Township had paid for repairs and the installation of a cattle guard, had paid to “build up” the road from the driveway to Section 20 and a state highway, and that the road was the only access point to a dam and school. Up until an incident in 2011, when Roxie Niemi informed a nearby resident they could not use Lewton Road, no one had been informed the road was not for public use. The evidence indicated that the road had otherwise been used by the public since 1927. The circuit court determined the road was a public road by common law and statutory declaration. The Niemis argued that the circuit court erred.

The Court reviewed the circuit court’s decision for factual error. The standard of proof is the finding of “clear and convincing” evidence that the Niemis or their predecessors implicitly dedicated Lewton Road as a public road. Since no express dedication was made, the Court had to determine whether the dedication was implied through the owner’s conduct and the facts and circumstances associated with the case. The Court found that the previous owners of Section 20 either requested or acquiesced to Township maintenance of the road, and that one owner asked that a cattle guard be built. Roxie Niemi acquiesced to maintenance of the road in both 2007 and 2009. Although Roxie Niemi stated she didn’t want the road to be used for public use during testimony, her actions and conduct showed otherwise. Her testimony could not override her acts and conduct inconsistent with the stated intent.

The evidence also supported the conclusion that the Township accepted the dedication of the road.  It maintained the road since 1927, provided gravel, grading, and construction, and installed a cattle guard and a culvert.  Although the maintenance was not routine or consistent, the evidence established that the Township maintains some other Township roads only when requested by residents.  The fact that the Township declared Lawton Road a “No Maintenance Road” in 2005 further demonstrated that the Township accepted it as a public road.

The Court found that the district court did not err in determining Lewton Road was a public road under common law dedication. The decision was affirmed.

public roads and highways, South Dakota courts ,

Notice provision for city inspection preempted by state statute

July 23rd, 2015

by Andrea Vaage

Olson et al. v. City of La Crosse
Wisconsin Court of Appeals, July 16, 2015

Landlords in La Crosse, Wisconsin challenged a City ordinance that would have required them to participate in an inspection and registration program. The circuit court rejected the challenge. The landlords appeal, arguing the part of the ordinance requiring the landlords to notify tenants of a city inspection was preempted by state statute.

The LaCrosse notice provision in question states:

“(3) The owner [of a rental property] shall arrange for access to the dwelling or dwelling unit and all portions of the property affected by the rental of the dwelling or dwelling unit and shall notify all tenants of the [City] inspection in accordance with Wisconsin law and the lease agreement between the owner and the tenant. Failure to provide access to the property and dwelling or dwelling unit on the agreed inspection date will subject the owner to the fees specified in Section 8.09 of this Code and denial of the registration certificate.

(4)  Except as otherwise provided by law …, inspections shall not be conducted:

….(c)  Without prior notice to the tenant by the owner as required by state law or the lease agreement.”

 

The relevant Wisconsin statute provides: “No city, village, town, or county may enact an ordinance that requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.”

Despite the Wisconsin statute cited above, the City identified two state statues and an administrative code provision that they argued worked together to require a landlord to notify tenants of a city inspection. The Court found that the first of the state statutes, and the administrative code, applied to landlord inspections, not city inspections, and were inapplicable to the situation.

The other statute, Wis. Stat. 704.07(2), requires landlords to “comply with any local housing code.” The City argued that the notice provision was part of the local housing code, and therefore proper under Wis. Stat. 704.07(2). The Court interpreted these statutes in a manner that harmonized them. “We give each its full force and effect by interpreting them as requiring landlords to “comply with any local housing code” while also prohibiting local governments from including in local housing codes any provision that “requires a landlord to communicate to tenants any information that is not required to be communicated to tenants” under any other federal or state law.” This interpretation, the court stated, would not substantially change the powers of the municipality. The City could still conduct inspections, but they would be responsible for notifying tenants of city inspections, not the landlords.

The Court reversed the circuit court decision to uphold the notice provision, while upholding the rest of the ordinance.

 

Notice, Preemption, Wisconsin courts ,

Transportation user fee assessed to landowners found to be a prohibited excise tax

July 20th, 2015

by Andrea Vaage

Heartland Apartment Association v. City of Mission, Kansas
Kansas Court of Appeals, July 2, 2015

In 2010, the City of Mission, Kansas enacted a transportation user fee on all improved real estate. The fee was to be used for street maintenance and repair. The fee was imposed on owners of developed property and calculated based on an estimate of vehicle trips generated by the size and use of a building. Only real property exempt from property or ad valorem taxes, such as churches, were exempt from paying the fee. If the fee was not paid, additional fees and interest would be assessed and a lien could be placed on the property.

Heartland Apartment Association, Inc. and others filed a lawsuit challenging the legality of the fee. The district court ruled in favor of the City on all counts, declaring the fee was a tax that was legally adopted by ordinance under the City’s power of home rule. Heartland appealed, contending the fee was an illegal excise tax.  The issue at hand was whether Mission’s fee is really a tax, and, if it is a tax, if it is one that can be legally levied by a municipality under Kansas law.

The Kansas Court of Appeals first noted that the distinction between a fee and a tax is not determined by the label given it, but rather the nature and function of the charge.

[A] tax is a forced contribution to raise revenue for the maintenance of governmental services offered to the general public. In contrast, a fee is paid in exchange for a special service, benefit, or privilege not automatically conferred upon the general public. A fee is not a revenue measure, but a means of compensating the government for the cost of offering and regulating the special service, benefit, or privilege. Payment of a fee is voluntary—an individual can avoid the charge by choosing not to take advantage of the service, benefit, or privilege offered.

Using this principle, the Court determined the City’s “fee” to be, in reality, a tax.  Every landowner must pay the fee when they pay property taxes; no landowner can opt out of the fee unless they are exempt entities from property taxes. Failure to pay the fee may result in a lien, potentially leading to a sheriff’s sale of the property. Thus this fee is a “forced contribution.”

Furthermore, the landowners required to pay the fee do not receive special benefits or services. Transportation infrastructure is a common good provided to all members of the general public, such as police and fire protection, and is enjoyed by landowner and non-landowner alike.

Having determined that the fee was a tax, the Court then examined whether it was a tax that the City had the authority to levy.  The Home Rule Amendment of the Kansas Constitution grants cities the power to determine their local affairs and government.  Under the Home Rule Amendment cities are allowed to exempt themselves from a state statute by adopting either an ordinary or charter ordinance; however, there are limits to this opting-out process.   Cities are prohibited from opting out of (1) enactments of statewide concern which are uniformly applicable to all cities; (2) other legislative enactments uniformly applicable to all cities; (3) enactments uniformly applicable to all cities of the same class that limit or prohibit “the levying of any tax, excise, fee, charge or other exaction”; and (4) legislative enactments prescribing limits of indebtedness.

Under Kansas law, K.S.A. 12-194, cities cannot levy or impose an excise tax or a tax in the nature of an excise tax. This law applies uniformly to all cities, but no definition is given for “excise tax” or “in the nature of an excise tax.” After reviewing the legislative intent of K.S.A. 12-194 the Court concluded that “the legislature has enlarged what taxes are prohibited to such an extent that this tax can be no other tax than an excise tax and is thus prohibited by law.”  The Court based their decision on a change of the statute in 2006 that removed language limiting the prohibited taxes to those imposed on transactions.  The result was that the term “excise tax” has come to mean “practically any tax which is not an ad valorem tax.”  The Court found the transportation user “fee” enacted by the City of Mission was an excise tax, and as such was prohibited by law.

The case was reversed and remanded.

Fees, Kansas courts, Taxes ,

Update on Wisconsin land use…er…budget bill

July 17th, 2015

First discussed here, the Wisconsin Legislature included in its budget bill a provision that would have exempted a state building development at Hill Farms from Madison zoning ordinances, and another that would have required the Department of Administration to solicit lease options outside of Dane and Milwaukee counties before renewing leases for state offices

This week Governor Scott Walker used his line item veto authority to veto both provisions.  The full story can be found here:

current news

Wisconsin statute regulating parking signs preempts local ordinance limiting “off premises” signs

July 16th, 2015

by Andrea Vaage

City of Eagle River v. Slusarczyk
Wisconsin Court of Appeals, July 7, 2015

Mark Slusarczyk, owner of Traveler’s Inn, posted a sign in his parking lot which forbid customers of the neighboring Synergy Salon and Spa from using the lot. The sign read:

PRIVATE PROPERTY NO TRESPASSING!
TRAVELERS INN GUESTS
PARKING ONLY
DO NOT BLOCK DRIVEWAY ANY TIME
NO! SYNERGY OR THEIR RUDE GUESTS
PROHIBITED THANK YOU

Slusarczyk was cited for violating section §106-683 of the Eagle River Zoning Ordinance, which allows off-premises signs after procuring a conditional use permit. The City contended that Slusarczyk’s sign promoted another business, and therefore was an off-premises sign, defined under the Eagle River Ordinance as “a sign which directs attention to a business, product, service, or entertainment not conducted, sold or offered upon the property where such sign is located.” A trial was held on November 5, 2014 where the trial court determined that the sign directed attention to the Synergy Salon and Spa and therefore constituted and off-premise sign. Slusarczyk appealed to the Wisconsin Court of Appeals.

The primary question before the Court was whether the City’s ordinance conflicts with a preemptive state statute. Preemption occurs when a local ordinance comes into conflict with a state statute purporting to regulate the same matter. Both the legal interpretation of the town’s ordinance and the state statute were reviewed de novo.

Wisconsin state law provides for traffic regulations, including a section that authorizes signs permitting or prohibiting parking.  Wis. Stat. § 346.55(4) provides that “Owners or lessees of public or private property may permit parking by certain persons and limit, restrict or prohibit parking as to other persons if the owner or lessee posts a sign on the property indicating for whom parking is permitted, limited, restricted or prohibited.”

Slusarczyk contended his sign clearly fell within the scope of the state statute.  The City argued, on the other hand, that “Wis. Stat. § 346.55(4) permits the sort of sign Mark Slusarczyk put up in this matter[, and] City of Eagle River Ordinance § 106-683 also permits the sort of sign Mark Slusarczyk put up in this matter, as long as a conditional use permit is first granted for the sign.”  Citing the 2008 Wisconsin Supreme Court case of Town of Rhine v. Bizzell, the Court found, that “[e]ven though conditional uses may be authorized pursuant to the ordinance, that does not render them uses as of right.” Because a preemptive state statute grants Slusarczyk the right to indicate for whom parking is restricted or prohibited on his property, the City of Eagle River cannot restrict that right by requiring Slusarczyk to first obtain a conditional grant. The Court found that the City of Eagle River ordinance conflicted with the state statute allowing for signs which specifically prohibited certain persons and was therefore preempted.  The City cannot restrict this right by requiring a CUP. The judgment of the trial court was reversed.

Preemption, Signs and billboards, Wisconsin courts , ,

An APA webinar, also on Reed v. Gilbert

July 15th, 2015

Just after I posted the last message I received information about another webinar on Reed v. Gilbert, this one offered by the APA Planning and Law Division.  Information below and here:

A Sign Regulation Apocalypse? Understanding the U.S. Supreme Court’s Decision In Reed v. Town of Gilbert

July 21, 2015
1:00–2:30 p.m. EST

CM | 1.50
L 1.50
CLE credits also will be available

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast A Sign Regulation Apocalypse? Understanding the U.S. Supreme Court’s Decision In Reed v. Town of Gilbert on Tuesday, July 21st from 1:00 to 2:30 PM EST. Registration is $20 for PLD members and $40 for nonmembers.

On June 15, 2015, the U.S. Supreme Court struck down the Town of Gilbert, Arizona’s sign code. In a rare unanimous decision, all of the justices of the Court agreed that the Town’s code violated the core First Amendment requirement of content neutrality, and the majority opinion provided new insight on what it means for a regulation to be “content neutral.” The Court’s decision is expected to put thousands of sign codes at increased risk of legal challenges, which could mean increased legal costs for local governments, as well as potential negative impacts on communities’ aesthetic concerns. This program will include presentations by some of the nation’s leading scholars and practitioners on First Amendment and land use issues. Panelists will discuss the facts of the Reed case, the Court’s rationale for its decision, some of the important questions and unanswered issues stemming from the case, and some helpful practice pointers on sign code drafting and enforcement.

Speakers include Brian J. Connolly, esq. of Otten Johnson Robinson Neff + Ragonetti, P.C. in Denver, CO; Daniel R. Mandelker, esq., Howard A. Stamper Professor of Law at Washington University in St. Louis; John M. Baker, esq. of Greene Espel PLLP in Minneapolis, MN; and Susan L. Trevarthen, esq., FAICP of Weiss Serota Helfman Cole & Bierman, P.L. in Fort Lauderdale, FL.

Education/Conferences, Signs and billboards ,

Webinar on the fate of sign ordinances after Reed v. Gilbert

July 15th, 2015

The State and Local Legal Center in Washington, D.C. is hosting a free webinar on Reed v. Gilbert.  The National League of Cities is a co-sponsor. The information is below:

Revising Sign Ordinances After Reed v. Town of Gilbert Webinar
Wednesday August 19, 1:00PM – 2:15 PM ETD
Reserve your Webinar seat now at:
https://attendee.gotowebinar.com/register/7566733836947059201
After registering, you will receive a confirmation email containing information about joining the Webinar.

In Reed v. Town of Gilbert the Supreme Court ruled that Gilbert’s sign code violates the First Amendment. Many, if not most, communities must now revise their sign codes. Most sign codes apply different rules to different categories of signs based on content, which the Supreme Court now generally prohibits. Discuss the practical implications of this case for local governments with John M. Baker, Greene Espel.

Education/Conferences, Signs and billboards ,

Zoning Board of Adjustment properly carried out its role in approving application for CAFO

July 13th, 2015

by Andrea Vaage

Grant County Concerned Citizens & Tyler v Grant County
South Dakota Supreme Court, June 24, 2015

Teton LLC applied for a conditional use permit to construct a confined animal feeding operation (CAFO) to house 6,616 swine larger than 55 pounds (“finisher” swine according to the Zoning Ordinances of Grant County (ZOGC)) and 1,200 swine smaller than 55 pounds (“nursery” swine in the ZOGC). The proposed operation would classify as a Class A CAFO-the largest possible designation under the ZOGC.  The Grant County Board of Adjustment (BOA) approved the permit after a hearing attended by 200 individuals. Grant County Concerned Citizens (GCCC) appealed.  Several procedural events are not included here, but the case eventually made its way to the South Dakota Supreme Court.  The Court’s conclusions on GCCC’s claims follow.

After the circuit court made a decision affirming the Board’s decision, GCCC submitted an affidavit signed by Tyler explaining the purpose of the excavation was to obtain water for his horse herd. The Board and Teton moved to strike the affidavit from record, upon which the circuit court granted the motion.

Private well. Under the ZOGC, a CAFO cannot be constructed within 2,640 feet of a private well. The ZOCG does not provide a definition of a “well,” however, SDCL 46-1-6(18) defines “well” as “an artificial excavation or opening in the ground, made by means of digging, boring, drilling, jetting, or by any other artificial method, for the purpose of obtaining groundwater.” GCCC claimed that the BOA’s decision improperly allows a CAFO within 2,640 feet of a well on neighbor Tyler’s property; however, the evidence showed that the well was actually dug on or just before the day of Teton’s application and that the excavation produced 12 gallons of water that day. The Board determined the Tyler’s constructed the well in order to frustrate the Teton’s application and as such the excavation did not meet the definition of “well.”  The Court affirmed, concluding that the BOA’s finding that the purpose of the excavation was to frustrate the CAFO application was material to the statute’s definition of “well” when the definition requires a well to be dug “for the purpose of obtaining groundwater.”  It was irrelevant that the excavation actually obtained 12 gallons of water.

Manure management and operation plan. Section 1034(4) of the ZOCG stipulates that the proposed CAFO must provide a manure management plan. GCCC contests that Teton’s did not find adequate acreage on which to spread manure, because Teton “significantly overstated” the amount of land on which it could apply manure.  The Court concluded that the Board made proper factual determinations on this issue, noting that ZOCG offers little in the way of specific requirements for a manure management and operation plan.

Failure to give notice to Melrose Township. The access road to the CAFO was jointly maintained by two townships. One of the two townships, Melrose Township, was not notified of the proposed CAFO by Teton.  Section 1304(12)(K) of the ZOCG requires “Notification of whomever maintains the access road (township, county and state).” An individual at the hearing for the permit testified that both townships had known about the proposed CAFO and decided not to upgrade the access road. It is irrelevant that the township was not notified by Teton, because the township had actual notice of the proceedings as evidenced by this individual’s testimony.

Nutrient management plan.  GCCC asserts that the proposed CAFO would not be able to obtain the water required to operate as evidenced by Teton’s nutrient management plan.  The Court considered this argument waived because the ZOGC’s requirements related to nutrient management plans do not address the water requirements of a CAFO.

GCCC made a number of other similar claims, but the Court found nothing in the record to suggest in these or any of the discussed claims that the Board did not regularly pursue its authority. The Supreme Court affirmed the ruling of the trial court.

Conditional Uses/Special Uses, Confined Animal Feeding Operations, South Dakota courts, Zoning board of adjustment , , ,