News from around Minnesota: Justice department sues Minneapolis suburb over denial of permit for mosque

September 2nd, 2014

The Justice Department is suing the city of St. Anthony, Minnesota for denying a request for a permit to establish a mosque.  The U.S. Attorney contends that the city council applied its zoning laws unevenly, and the federal government is seeking an injunction (presumably under RLUIPA).

A group of Somali immigrants formed the Abu Huraira Islamic Center in 2009 in hopes of establishing a worship center.  After years of trying to find a suitable location, the group bought a building in an area zoned light industrial.  The group applied for a conditional use permit, which was rejected by the city council after a crowded, contentious public meeting.  St. Anthony previously approved a conditional use permit for the Operating Engineers Union Local 49, which is also located in a light industrial zone, allowing the union to rent out its banquet hall to other groups. The US Attorney asserts that the meetings at the union hall constitute assemblies, and that RLUIPA prohibits cities from treating religious meetings differently than secular assemblies.

The USA Today article is here.

current news, RLUIPA ,

Ten Commandments monument in Fargo ND does not violate First Amendment Establishment Clause

August 29th, 2014

by Gary Taylor

Red River Freethinkers v. City of Fargo
(Federal 8th Circuit Court of Appeals, August 25, 2014)

A stone monument depicting the Ten Commandments, which was given to the City of Fargo by the Fraternal Order of Eagles in 1958, has been the subject of over a decade of litigation.  In addition to the Ten Commandments, the monument includes other symbols such as the American flag and the “all-seeing eye” atop a pyramid. In 1961, the monument was installed in its current location on the City Plaza, “a grassy, open area mall” on City property, where it sat without legal challenge for over forty years.  In 2002, the Red River Freethinkers sued the city seeking a declaration that the display of the Ten Commandments violated the Establishment Clause of the First Amendment to the US Constitution.  The federal district court found in favor of the city on the grounds that because of the purpose of the gift and the other secular symbols and messages on the monument “a reasonable observer could not perceive the city as adopting or endorsing the religious message of the display.” The court went further to state that “to exclude the request of a private organization, such as the Fraternal Order of Eagles, to engage in religious speech in a recognized forum on the sole grounds that their speech has religious content could arguably be a violation of their constitutional rights.”

Seizing on this language, the Freethinkers offered their own monument to the city with a request that it be placed near the Ten Commandments monument.  It was to be inscribed:

THE GOVERNMENT OF THE UNITED STATES OF AMERICA IS NOT, IN ANY SENSE FOUNDED ON THE CHRISTIAN RELIGION
From the Treaty of Tripoli, Approved Unanimously by the United States Senate, June 7, 1797. Signed by President John Adams
Presented to the City of Fargo by the Red River Freethinkers in recognition of the First Amendment right of every American to believe, or not believe, in any god

The city commission voted to reject the Freethinkers offer, and in order to avoid litigation further decided to donate the Ten Commandments monument to a private entity, who would then move it to a location off of city property.

This caused a stir. many opposed this decision, and a petition garnering more than 5,000 signatures required the commission to either adopt, or submit to a vote of the people, an ordinance that simply stated:

A marker or monument on City of Fargo property for 40 or more years may not be removed from its location on City of Fargo property.

The city adopted the ordinance and left the monument in place.  A month later, the city adopted a policy of not accepting any additional monuments for display on the City Plaza.  The Freethinkers sued again, claiming that the petition, and the city’s reaction to it, had made the monument impermissible under the Establishment Clause.  After jurisdictional issues were addressed, the district court granted summary judgment for the city.  The Freethinkers appealed to the 8th Circuit Court of Appeals.

The Court of Appeals applied the standard announced by the US Supreme Court (USSC) for evaluating “passive monuments.”  In that USSC case, a Ten Commandments monument stood for over 40 years on the Texas Capitol grounds alongside other (“17 monuments and 21 historical markers”) secular symbols.  The USSC found that the monuments represented the several strands in the State’s political and legal history,” and that “the monument had a dual significance, partaking of both religion and government.” The 8th Circuit found the Fargo monument to be identical to the Texas situation in every legally relevant way.  The Freethinkers argued that the Christian overtones to the petition movement changed public perception of the monument to one with a single religious message; however the Court of Appeals disagreed, noting that petitioners expressed both religious and secular reasons to retain the monument, and that the city commission cited the costs of a legal challenge and the importance of “embracing and tolerating all people” as the basis for its decision.  By adopting the petition, the city did not “necessarily endorse the specific meaning that any particular petitioner sees in the document.”  The Court of Appeals affirmed the district court and dismissed the Freethinker’s petition.

Judge Bye dissented.  After reciting other details of the history of the monument (including the then-mayor’s statement at the 1961 dedication ceremony that the monument “would be a constant reminder to one and all that Fargo shall go forward only as it respects and lives according to the principles of the Ten Commandments”), Justice Bye noted several distinctions between the Fargo monument and the Texas monument, including: (a) unlike the Texas monument, no other monuments share the Civic Plaza in Fargo, (b) the city now has adopted a policy that no other monuments may stand in Civic Plaza, (c) Civic Plaza is flanked on three sides by public buildings, and sidewalks from the entrances to those buildings directly intersect at the monument.  Judge Bye concludes from these facts that the city has rendered the Ten Commandments monument an “active monument” subject to a more stringent test, and that summary judgment in favor of the city was not appropriate.

Federal courts, First Amendment claims ,

8th Circuit finally addresses “in writing” requirement of Federal Telecommunications Act

August 25th, 2014

by Gary Taylor

NE Colorado Cellular v. City of North Platte
(Federal 8th Circuit Court of Appeals, August 22, 2014)

NE Colorado Cellular, dba Viaero Wireless (Viaero) filed an application to construct a cell tower in North Platte, Nebraska (City).  The application first went to the City’s planning commission.  the commission conducted a public hearing and received both live testimony and letters from property owners near the proposed tower site.  After the hearing,the commission issued a summary report recommending denial of the application because the tower would not be in harmony with the character of the area as required by the North Platte zoning code provisions concerning cell towers.  The commission provided this report to the city council.  The city council then conducted its own public hearing, where two people spoke in favor of the tower and twelve spoke in opposition.  The council voted 6-2 to deny the application.  The minutes of the council meeting included the finding that the proposed tower “does not meet the minimum standards stated in the [zoning ordinance]…based on the [finding] that the use is not in harmony with the character of the area and it is not the most appropriate use of the land as it is a historic neighborhood and the tower could decrease property values in the area.”

Viaero filed suit against the City, alleging that the decision was neither “in writing,” nor “supported by substantial evidence” as required by the Federal Telecommunications Act of 1996 (TCA).  The district court upheld the City’s decision, and Viaero appealed to the Federal 8th Circuit Court of Appeals.

In writing.  The interpretation of the TCA’s “in writing” requirement up until this time has been an open question in the 8th Circuit.  The 1st, 2nd and 9th Circuits require that a decision (1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.  The 6th Circuit does not require that the decision and record be separate writings as long as the record permits the reviewing court to “focus with precision on the action that was taken and the reasons supporting such action.”  The 4th and 11th Circuits consider the burden on local governments to be even lighter than that imposed by the other interpretations.  The 4th Circuit has noted that “Congress knows how to demand findings and explanations” and has not done so in the TCA.  Similarly, the 11th Circuit has stated that the decision and the bases thereof can be found in the transcript of the hearing and the minutes of the meeting in which the hearing was held; neither a separate written document, nor specific findings of fact are required.**

The 8th Circuit was persuaded that the 4th and 11th Circuits articulated the better rule.  The Court did not find anywhere in the text of the TCA where the denial and the written record be separate documents.  Likewise, the language of the TCA does not require that the written denial state findings of fact or the reasons for the denial.  “Congress may require an agency or board to state its findings.  Congress did not do so here.”

Supported by substantial evidence.  The Court began by noting that “the TCA’s ‘substantial evidence’ requirement does not impose substantive standards on local governments. Rather, it requires a reviewing court to determine whether the local authority’s decision comports with applicable local law….It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  The city’s ordinance requires that a tower “shall be in harmony with the character of the area and the most appropriate use of the land” in order to be approved.  The Court found that the city council had before it the testimony of a dozen residents that the proposed tower would be an “eyesore,” would be inappropriate for the neighborhood, and would not be harmonious with the neighborhood.  This, the Court concluded, was enough for a reasonable mind to accept as adequate to support a conclusion that the proposed tower would would not be in harmony with the neighborhood.


**Note:  The US Supreme Court has accepted the case of T-Mobile South, LLC. v. City of Roswell, 731 F.3d 1213 (11th Cir. 2013), cert. granted, 134 S.Ct. 2136 (2014) to resolve these differing interpretations.

 

cell towers, Federal courts ,

Church did not have standing to appeal rejection of city’s approval of cross display

July 31st, 2014

by Rachel Greifenkamp

Chris Cabral and Nancy Tarsitano v. City of Evansville, Indiana
(Federal 7th Circuit Court of Appeals, June 25, 2014)

In April of 2013 the West Side Christian Church in Evansville, Indiana submitted an application to the City’s Engineer’s Office seeking permission to erect thirty-one six-foot plastic crosses on a 1.5-mile-long public riverfront for two weeks in August of 2013. The city denied the permit originally because the display was intended to be decorated with phrases like “Jesus saves,” which was against the City municipal code regarding “First Amendment signs.” When the permit was resubmitted without the religious phrases, the Board of Public Works approved the display contingent on a disclaimer being placed on either end of the display saying that it was not endorsed by the City of Evansville.

In June 2013 Cabral and Tarsitano (plaintiffs) filed a complaint against Evansville challenging the display as violating the Establishment Clause, and requested a preliminary injunction preventing the installation of the crosses. The church then filed a motion to intervene in July. The district court entered an injunction holding that, “the City’s approval of this display of crosses constitutes an impermissible endorsement of religion that violates the Establishment Clause of the First Amendment.” The city did not appeal the decision.  The church, however, filed a timely appeal arguing that the display did not violate the Establishment Clause and that instead the injunction violates the church’s First Amendment rights.

Rather than address the First Amendment issues, the Seventh Circuit Court of Appeals found that the church lacked standing to pursue its appeal.  There are three requirements that must be met in order for a litigant to have standing: (1) they must have suffered an actual or imminent injury in fact, (2) the injury must be traceable to the challenged action, and (3) it must be likely, not just speculative,  that the injury will be redressed by the court returning a favorable decision. Standing does not exist in this appeal primarily due to the fact that even if the court were to overturn the district court’s decision, it is only speculative as to whether the “injury” suffered by the church would be redressed because the City of Evansville might deny the permit for a number of reasons.  Such speculation as to future events is not enough to support a claim of standing “[S]tanding requires that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

In addition, the only party expressly bound by the injunction – the city of Evansville – did not appeal the lower court decision and was not a party to the church’s appeal.  A judgment will not be altered on appeal in favor of a party who did not appeal, even if the interests of the party not appealing are aligned with those of the appellant.

For these reasons, the church’s appeal was dismissed for lack of standing.

 

Federal courts, First Amendment claims, Standing to sue , ,

News from around Iowa: Pella amends zoning to allow outdoor seating downtown

July 24th, 2014

The Pella city council approved a zoning amendment that will allow outdoor seating for downtown Pella businesses.  The amendment puts in place an application process. Tables and chairs would be permitted in the Pella Central Business District from April 1 –October 31. Furniture would have to be removed during Tulip Time.  All outdoor seating areas would have to leave at least 5 feet of unobstructed pedestrian space on the public sidewalk.

A more detailed summary of the amendment can be found here.

 

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News from around Iowa: Mayor of Davenport vetoes St. Ambrose athletic complex

July 22nd, 2014

An update on the post found here.  Mayor Bill Gluba vetoed the rezoning request by St. Ambrose University for a 2,500-seat stadium and sports complex.  The request won the Davenport Plan and Zoning Commission’s approval on a 7-3 vote, and the approval of the Davenport City Council by a 6-4 vote.  “My decision will be criticized by some,” said the Mayor, “but I believe as Mayor I must put neighborhoods ahead of private corporations.”  Neighbors opposing the sports complex are happy, St. Ambrose is not.  Read the article from KWQC.com here.

On the same night the Mayor vetoed a development agreement for “The Dock,” a three-story restaurant, retail and office complex on the riverfront.  This agreement was approved unanimously – 10 to 0 -by the council, but the Mayor expressed concern that “The agreements hand over too much control to the developer at the expense of the public.”

It takes a two-thirds vote to override a mayoral veto in Davenport.  More news to come.

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ZBA’s denial of variance for billboard did not constitute unlawful prior restraint

July 21st, 2014

by Rachel Greifenkamp

International Outdoor, Inc. v City of Roseville
(Michigan Court of Appeals, May 1, 2014)

In the City of Roseville, Michigan International Outdoor, Inc. (IO) applied to erect a billboard 70 feet high, 672 square feet total, 365 feet from property that was zoned residential. Due to regulations on billboards within city limits, the Building Department denied the application. IO appealed the decision to the Zoning Board of Appeals (ZBA) who also denied the application. IO then appealed to the circuit court, challenging the constitutionality of the ordinances.  After the circuit court also found in favor of the City, IO appealed to the State of Michigan Court of Appeals.

IO argued that the ordinances of the City of Roseville constitute an unconstitutional prior restraint because the city has not applied the stated objective standards for billboards found in the ordinance in a consistent manner. It maintained that the ZBA has ignored or waived those objective standards on an ad hoc basis, and relies solely on subjective criteria such as “in harmony with the general purpose of the sign ordinance,” “injurious to the neighborhood,” and “detrimental to the public welfare” when denying billboard applications.  These criteria, IO argued, have been found in previous court cases to be insufficiently precise and therefore unconstitutional prior restraint. The city countered that the circuit court was correct when it found the regulations on their face to be narrow, objective, and definite,  and that IO’s proposed billboard did not meet the standards of those regulations.

After noting that IO’s challenge was to the application of the ordinances by the ZBA, the court noted the key holdings in previous prior restraint cases:

  • A licensing scheme that gives public officials the power to deny use of a forum in advance of actual expression is a prior restraint on First Amendment liberties.
  • Any system of prior restraints on expression bears a heavy presumption against its constitutional validity.
  • A law subjecting the exercise of First Amendment freedoms to the prior restraint of a license must contain narrow, objective, and definite standards to guide the licensing authority.
  • Moreover, a licensing law that places “unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.

Because IO could not meet the strict application of the narrow, objective, and definite terms of the city’s Sign Ordinance, it was required to present evidence that a variance from the ordinance was necessary; i.e., that a practical difficulty or unnecessary hardship existed. The record reflected that the ZBA applied this test in determining that a variance could not be granted.  the application of the test meant that the ZBA was not operating with unbridled discretion when it denied the variance.

Additionally, IO argued that commercial speech is protected under the First Amendment.  As such, any restriction or regulation must be advance a substantial government interest, and  the ordinance must be narrowly tailored to meet that interest. IO does not believe that it is narrowly tailored because the ZBA has the discretion to grant one request for a billboard otherwise restricted by the ordinance, but deny others. The court rejected this argument, noting that the stated purpose of the ordinance – “to protect the health, safety and welfare of the citizens of the City of Roseville, including but not limited to defining and regulating signs in order to promote aesthetics, to avoid danger from sign collapse and to regulate sign materials, avoid traffic hazards from sign locations and size, avoid visual blight and provide for the reasonable and orderly use of signs” – is a substantial governmental interest.  The court simply stated that IO provided “no relevant legal authority or factual support for its claim.

The circuit court’s decision in favor of the City of Roseville was affirmed.

First Amendment claims, Michigan courts, Signs and billboards, Variances , , ,

LeMond earns yellow jersey in suit against Yellowstone (yes, I thought so too)

July 17th, 2014

If you are a hipster nerd cycling fan you know that we are right in the middle of the Tour de France (and, more importantly, on the eve of RAGBRAI!).  To honor this I bring you cyclist-related litigation.  Three-time TDF winner Greg LeMond just won in a property-related suit against the Yellowstone Club, a (now bankrupt) members only ski and golf resort southwest of Bozeman.  The Montana Supreme Court ruled that LeMond holds a legitimate claim for damages against the club for a promise to deed a five-acre lot at the club to LeMond in exchange for bringing in 10 new members.  The court remanded the case to determine the amount of the award. It will be in the range of $1 million – a whole lot.

Article from the Missoulan is here.  The court’s opinion is here.

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Plat approval results in town acceptance of public road, but does not obligate town to construct it

July 14th, 2014

by Rachel Greifenkamp

Runkle, et al. v. Town of Albany
(Wisconsin Court of Appeals, June 19, 2014)

In the Town of Albany, Wisconsin several individuals purchased land and built homes along a street called Proverbs Pass. The developer of the subdivision entered into a development agreement with the town to build Proverbs Pass; however, neither the developer nor the town has completed construction or maintained the street. The people who built homes on the road filed a complaint asking the court to direct the town to complete the road and accept it as a town road, meaning the town would be responsible for it’s maintenance. The town admitted that the plat for the road had been approved and recorded with the register of deed but denied that it had any obligation to complete or maintain it as the town had not accepted the street as a town road. The circuit court ruled in favor of the town because certain conditions that were set forth in the development agreement were not met by the developer and the court concluded that that meant the town had not accepted the plat. The homeowners appealed the decision.

The Wisconsin Court of Appeals found that the only issue was whether the town accepted Proverbs Pass as a town road when the town approved and recorded the plat. If the approval does not equal acceptance, then the Town would be correct in assuming no responsibility for the road. If the approval does equal acceptance, the the Town would be required to assume the same responsibility it does for all other town roads. The town argued that acceptance of Proverbs Pass as a town road hinged on the developer meeting conditions in the development agreement, and that those conditions were not met. Based on Wisconsin court precedent, a town accepts a plat when it is approved and recorded in the register of deed, therefore the Court of Appeals reversed the Circuit Court’s ruling and found that the the Town of Albany did in fact accept Proverbs Pass as a town road.  This, however, did not determine whether the town had an obligation to construct and maintain the street.  “The acceptance of a plat by the city does not require that it shall open all the streets and alleys for immediate use.”  This issue was handed back to the circuit court to determine whether any other events or agreements obligated the town to complete construction of Proverbs Pass.

Plats, public roads and highways, Wisconsin courts , ,

US Supreme Court strikes down buffer zones around MA abortion clinics

July 1st, 2014

by Gary Taylor

McCullen v. Coakley
(US Supreme Court, June 26, 2014)

In 2007, Massachusetts amended its Reproductive Health Care Facilities Act to make it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” the Act exempted four classes of individuals, including “employees or agents of such facility acting within the scope of their employment.”  Another provision of the Act makes it a crime for the knowing obstruction of access to a reproductive health care facility. McCullen and others who attempt to engage women approaching Massachusetts abortion clinics in “sidewalk counseling” – offering information about alternatives to abortion and help in pursuing those options – raised First Amendment claims, arguing that the buffer zone displaced them from their positions outside clinics which considerably hampered their counseling efforts.  Their attempts to communicate with patients are further hampered by clinic escorts who accompany arriving patients through the buffer zones to the clinic entrances.

The US Supreme Court held that the Act violates the First Amendment.  First the Court noted that “public ways” and “sidewalks” are traditional public fora which have traditionally been open for speech activities.  The government’s ability to regulated speech in traditional public fora is very limited, where traditional time, place and manner restrictions on speech are allowed only if the restrictions (1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant governmental interest, and  leave open ample alternative channels for communication of the information.

Content based.  The Court determined that the restrictions were neither content nor viewpoint based.  Just because the buffer zones were drawn specifically around abortion clinics does not mean the restriction was directed, on its face, at a specific message.  It was adopted in response to a record of crowding, obstruction and even violence outside abortion clinics that was not present in other locations.  Violation of the Act does not depend on what individuals say, but rather where they say it.  The Act’s purposes include protecting public health, safety and welfare, and unobstructed public use of streets and sidewalks.  Furthermore, the exemption for clinic employees was not an attempt to favor one viewpoint over another, but rather was necessary to allow them to enter and exit the clinics in the performance of their duties.

Narrowly tailored.  The Court determined that the buffer zone restriction was not narrowly tailored, in that it burdened substantially more speech than is necessary to further the government’s legitimate interests.  While it served the interest in public safety on sidewalks, it deprived the petitioners of their two primary methods of communicating their message: close personal conversations with arriving patients and distribution of literature.  Those forms of expression have historically been closely associated with the transmission of ideas.  Petitioners are not merely protesters; they seek not only to express their opposition to abortion but also to engage in personal conversations with women about various alternatives to abortion.  “It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones.  If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.  The Court suggested that Massachusetts could adopt legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, which prohibits obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services.  The Court also noted that the problems the legislation sought to address were principally limited to one Boston clinic on Saturday mornings.  The police are capable of singling out those who harass or intimidate patients, and so the restrictions in the Act burden substantially more speech than necessary to achieve the government’s public safety interests.  The government must demonstrate that such alternative measures that would burden substantially less speech would fail, not simply that the chosen route (buffer zones) is easier to enforce.

 

Federal courts, First Amendment claims, United States Supreme Court , ,