Fed 6th Circuit reviews use of miniature horse as service animal under ADA and FHAA (Part II – FHAA claims)

August 27th, 2015

by Gary Taylor

Anderson v. City of Blue Ash
Federal 6th Circuit Court of Appeals, August 14 2015

[Note: This is Part II of a lengthy case.  Yesterday’s post gives the facts of the case and reviews the decision on the Americans with Disabilities Act claims.  Today’s post is on the Fair Housing Act Amendments claims.]

The FHAA makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such a dwelling because of a handicap,” which includes “refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”  The courts have interpreted this to allow three different types of claims: (1) reasonable accommodation, (2) disparate treatment, and (3) disparate impact.  The Anderson made arguments on all three.

Reasonable accommodation. Unlike the ADA, the FHAA does not have minimum regulatory requirements for animals to qualify as a reasonable accommodation.  Under this FHAA claim, a municipality has an affirmative duty…”to afford its disabled citizens reasonable accommodations in its municipal zoning practices if necessary to afford such persons equal opportunity in the use and enjoyment of property.” The city argued that C.A. did not need therapy with a horse at her house but rather could travel to a local farm or stable.  It also argued that accommodation at the house was unnecessary because C.A. can ambulated and otherwise function without the horse.  The Andersons contended that the accommodation was necessary for C.A. to play independently in her backyard as a non-disabled child could, and that therapy at a farm or stable is no substitute for therapy at home.

The 6th Circuit found that summary judgment for the city (as was granted by the district court) was inappropriate because there were sufficient facts to indicate that the Andersons might win at trial.  In so ruling, the 6th Circuit observed that the FHAA requires accommodations “that are necessary to achieve housing equality, not just those accommodations that are absolutely necessary for the disabled individual’s treatment or basic ability to function.”

As to the “reasonableness” of the accommodation, the 6th Circuit found that factual issues “pervade the question of the accommodation’s reasonableness.”  The record needs more development on whether C.A.’s therapy would be diminished by traveling to receive therapy at another location, and whether the city’s zoning scheme would be “fundamentally altered” by allowing the horse.  “Requiring public entities to make exceptions to their rules and zoning policies is exactly what the FHAA does…[it doesn’t mean that] any modification permitting a horse necessarily amounts to a fundamental alteration.”

Disparate treatment.  This claim failed for the same reason that the Anderson’s claim for intentional discrimination under the ADA failed: there was no evidence that the city harbored discriminatory animus against the disabled.

Disparate impact.  This claim also failed.  The Andersons failed to recognize that the ordinance in question specifically exempts any animals protected by federal law, including the FHAA; thus it has less of an impact on disabled individuals than on the general public.

The 6th Circuit reversed the district court’s grant of summary judgment and remanded for further proceedings.

Americans with Disabilities Act, Fair Housing Act, Federal courts , , ,

Fed 6th Circuit reviews use of miniature horse as service animal under ADA and FHAA (Part I – ADA claims)

August 26th, 2015

by Gary Taylor

Anderson v. City of Blue Ash
Federal 6th Circuit Court of Appeals, August 14 2015

[Note: This is a lengthy case, but it is a good review of issues with “unusual” service animals that occasionally arise.  Today’s post is on ADA.  Next post will be on FHAA]

Ingrid Anderson’s minor daughter (initials C.A.) suffers from a number of disabilities that affect her ability to walk and balance independently.  She keeps a miniature horse at her house as a service animal.  The horse enables C.A. to play and get exercise in her backyard without assistance from an adult.

Since acquiring the horse in 2010 the Andersons and the city of Blue Ash, Ohio have had continual disagreements about allowing the horse on the property.  In 2013 the city passed an ordinance banning horses from residential property, then criminally prosecuted Anderson for violating it.  Anderson’s defense was that the Americans with Disabilities Act (ADA) and the Fair Housing Amendments Act (FHAA) both entitle her to keep the horse at her house as a service animal.  The Hamilton County Municipal Court found Anderson guilty of the criminal complaint.  Andersons brought their own action federal district court on ADA and FHAA claims, but the district court granted summary judgment for the city finding that the claims were barred by the determination of the issues (res judicata) in Anderson’s criminal conviction in municipal court.  Andersons appealed.  After reversing the district court’s conclusion on the res judicata claim (for various reasons beyond the interest of most readers of this blog) the 6th Circuit went on to consider the specifics of the Andersons’ ADA and FHAA claims.

ADA – Miniature horses as service animals. The ADA prohibits entities from discriminating against individuals with disabilities by, including other actions, “failing to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities….” The regulations governing miniature horses allow them for use as service animals if the horse “has been individually trained to do work or perform tasks for the benefit of the individual with a disability,” provided that the horse and the requested modification also satisfy certain “assessment factors.”  The assessment factors to be considered are:

  1. the type, size, weight of the horse, and whether the facility can accommodate these features;
  2. whether the handler has sufficient control of the horse;
  3. whether the horse is housebroken; and
  4. whether the horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.”

The ADA thus requires a highly fact-specific inquiry, and decisions must be made on a case-by-case basis.  After lengthy discussion of each of these factors, the 6th Circuit concluded that the district court had not sufficiently developed the factual record concerning the Anderson’s situation, and thus summary judgment for the city was inappropriate.

ADA – Intentional discrimination. The Andersons also raised an intentional discrimination claim under the ADA.  For such a claim to succeed the Andersons need to have proven that:

  1. C.A. has a disability;
  2. she is otherwise qualified; and
  3. she was being … subjected to discrimination because of her disability.

Courts have interpreted this to mean that “animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.”  Further, it must be shown that the discrimination was “intentionally directed toward him or her in particular.”

After examining the evidence the 6th Circuit concluded that the intentional discrimination claim failed because the Andersons could not prove factor #3.  The city’s actions were brought about by citizen’s complaints of the unsanitary conditions caused by animal waste in the Andersons’ backyard.  The city council decided not to take action on these complaints until the Andersons acquired a second horse and neighbors made additional health complaints. The sequence of events was consistent with the city responding to legitimate concerns of its citizens, and provided no basis for an inference that the city’s actions were “because of C.A.’s disability.”

 

 

Americans with Disabilities Act, Fair Housing Act, Federal courts, Uncategorized , , ,

Minn Court of Appeals upholds new water quality standards for rivers and streams

August 24th, 2015

by Gary Taylor

Minnesota Environmental Science and Economic Review Board, et al v. Minnesota Pollution Control Agency
Minnesota Court of Appeals, August 10, 2015

[For background, an article on the case can be found here.]

Petitioners in this case included the Minnesota Environmental Science and Economic Review Board (a coalition of cities believed to be most affected by the agency rules in question), The Coalition of Greater Minnesota Cities, the League of Minnesota Cities and the Minnesota Soybean Growers Association.  They brought this suit against the Minnesota Pollution Control Agency (MPCA) to challenge the rulemaking process (not the scientific basis for the rules) for adopting new numeric water quality standards (WQS) for certain pollutants to limit eutrophication** of rivers and streams.  The Court of Appeals addressed two issues raised by the parties: (1) the standing of the petitioners to bring suit, and (2) MPCA’s response to public comments on the proposed rules during the rulemaking process.

Standing.  MPCA argued that the petitioners lacked standing because they failed to specify any specific rights with are currently affected by he rulemaking process, and that their potential harms “were too tenuous and rely on too many indeterminate assumptions to establish standing.”  The Court of Appeals disagreed, finding that “petitioners are challenging a rule that created numeric standards, not merely the inclusion of certain rivers on a list that would eventually lead to numeric standards.  Petitioners are among the class of persons who would be affected by a change in WQS; the petitioning groups represent municipalities, wastewater-treatment facilities, sanitary sewer districts, and farming operations, all of which have a more particularized interest than the general citizenry.”  The Court of Appeals concluded that petitioners indeed did have standing.

Response to public comments. Petitioners alleged that MPCA did not comply with statutory rulemaking procedures because it failed to adequately respond to petitioners’ comments during the rulemaking process.  They argued that MPCA relied on outdated studies and failed to make the studies it relied on part of the public record.  Petitioners relied on federal caselaw for the proposition that agency responses to comments must be “meaningful”; that is, the agency must respond in a manner that states the main reasons for its decision and explains why the agency reached the decision it did.

The Court of Appeals refused to second-guess the agency’s use of, or reliance on its chosen scientific or technical sources.  Agency decisions enjoy “a presumption of correctness.” Agencies must at times

make judgments and draw conclusions from suspected, but not completely substantiated relationships between facts, from trends among facts, from theoretical projections from imperfect data, from probative preliminary data not yet certifiable as fact, and the like.

The MPCA responded to all of the written comments received after each public hearing, including a summary of the comment and a response with citations to the documents or sources that provided the basis for the response.  Although petitioners did not agree with the rules adopted, the Court concluded that the MPCA sufficiently explained the reasons for their adoption and provided sufficient supporting documentation.  This met the test for “meaningful” response.

The Court declared the new water quality rules to be valid.

 

**Eutrophication is a syndrome of ecosystem responses to nitrogen and phosphorus, often leading to changes in animal and plant populations such as algae blooms and the proliferation of rooted plants.

Agency rulemaking, Minnesota courts, water resources , ,

Federal district court should not decide state law claims associated with nude dancing establishment suit

August 20th, 2015

by Andrea Vaage

Green Valley Investments v Winnebago County
Federal 7th Circuit Court of Appeals, July 27, 2015

Stars Cabaret, a nude dancing establishment owned by Green Valley Investments, opened in Winnebago County, Wisconsin in 2006. At that time, Winnebago County regulated adult entertainment establishments under Ordinance 17.13, which required the establishment of an “adult entertainment overlay [AEO] district.” The AEO district was to be located within an at-the-time undefined “B-3 Highway Business District.” A conditional-use permit issued by the county to the operator of the business was also needed, which, among other things, required that no alcoholic beverages be sold in the AEO district.

The cabaret offered nude dancing and also served alcoholic beverages. The cabaret never sought a permit to operate the business under Ordinance 17.13; instead, Green Valley sued for declaratory and injunctive relief, arguing the ordinance was an unconstitutional First Amendment restriction on expression. The case was dismissed without prejudice when the County amended the ordinance during the suit. Another series of suits and subsequent modifications to the ordinance ensued. Finally, in 2012, Green Valley requested that Stars Cabaret be allowed to operate as a nonconforming use. The County did not agree to this request, leading to this suit.

Green Valley asserted that since the initial ordinance was unconstitutional, and Stars Cabaret was established and in operation before the invalid ordinance was amended, it was legal from the outset, “reasoning that anything is legal that is not forbidden.”  As a part of this position Green Valley filed a supplemental claim under state law seeking a declaration that the use was lawful in 2006 and should now be considered a nonconforming use. The district court found that parts of the 2006 ordinance were unconstitutional, but these could be severed from the rest of the ordinance, leaving the setback and alcohol provisions intact. The federal district court found that Stars Cabaret would not have been legal if these provisions were kept in place. Green Valley appealed.

Thus the 7th Circuit Court of Appeals was faced with two questions: the federal question of the constitutionality of the original ordinance, and the state law questions of nonconforming uses and severability. On the first issue, the Court found the 2006 ordinance was an impermissible prior restraint on speech because it left it up to the discretion of a local body, using ambiguous standards, to allow or deny the the speech.

The state law questions were more complex.  The district court had to determine if the remainder of the ordinance could be modified under the power of severance or if this remainder could function as a standalone law if additions or modifications were necessary to make it a valid freestanding zoning provision. These questions are considered by a federal court under supplemental jurisdiction since such claims are a matter of state law. The Court found no precedent set by Wisconsin which would answer either question. Although the district court had the ability to exercise supplemental jurisdiction, it need not have done so. In this case, the state law claims “substantially predominate over the claim or claims over which the [federal] district court has original jurisdiction.” The federal district court was not properly equipped to answer the state law questions brought up in this case, and should not have exercised supplement jurisdiction.

The Court found that, once the district court determined part of the 2006 ordinance was unconstitutional, they should have relinquished jurisdiction over the supplemental state claims and dismissed them without prejudice. The federal district court’s decision was reversed and remanded.

Adult Entertainment Regulations, Federal courts, Jurisdiction , ,

Winona, MN rental ordinance case dismissed as moot by Minnesota Supreme Court

August 17th, 2015

by Andrea Vaage and Gary Taylor

Dean v City of Winona
Minnesota Supreme Court, August 5, 2015

This is an update on the Winona, MN case from last year, which can be found here. To recap, homeowners wishing to obtain a rental license in Winona cannot do so if 30% of the properties on their block are already rental properties. The question before the court was whether the 30% rental rule was a valid exercise of the city’s police power, and whether the ordinance was a violation of their equal protection rights under the Minnesota Constitution. The district court granted summary judgment to the City of Winona and the court of appeals affirmed. The applicants then filed a petition for review, which was granted in May 2014.

The City moved to dismiss the appeal for lack of jurisdiction, arguing that the case was moot. Minnesota courts have established “an appeal should be dismissed as moot when a decision on the merits is no longer necessary or an award of effective relief is no longer possible.”  Of the three original plaintiffs in the lawsuit, two no longer owned their properties, and the third received a rental license from the city.  While acknowledging that their claims were technically moot, they nevertheless argued that they fell within either or both of two narrow exceptions to the mootness doctrine: (1) that the issue being litigated is capable of repetition, yet likely to evade review, and/or that the case is “functionally justiciable” and of “statewide significance.”

The first argument was quickly dispatched by the court since the ordinance, which is continuing to be enforced by the city, is open to challenge at another time.  The claims against the ordinance, therefore, are still capable of being reviewed by the courts.

As for the second argument, the Court concluded that the case is not of statewide significance.  Although other cities do have rental ordinances they do not all operate in the same manner as the Winona ordinance. While the right to rent is an important property interest, the only population affected in this case was the homeowner’s pursuing a rental license in this one municipality, hardly an urgent or impactful case calling for the application of a narrow exception to the mootness rule.

The appellants’ claims were considered moot and the case was dismissed.

Jurisdiction, Minnesota courts, Rental ordinances , , ,

Notice of intent to demolish building “reasonably calculated” to inform owners of pending action

August 12th, 2015

by Andrea Vaage

Yang v. City of Wyoming
Federal 6th Circuit Court of Appeals, July 13, 2015

Ming Kuo Yang and Julie Yang owned a commercial property in Wyoming, Michigan. The Yangs previously rented the property to a series of restaurants; eventually, the property was listed for sale in late 2010. The lease on the last restaurant ended in February 2011. The property was never sold and was then neglected. The owners continued to pay property taxes. In October 2011, city officials posted an abandonment notice on the building. The notice was also mailed to the address of the abandoned building, but listed the former owner as the recipient, not the Yangs. In July 2012, the city sent a “Notice and Order to Repair or Demolish” by signature-required certified mailing to the building address. This notice also listed the former owner as the recipient. Two months later, the post office returned the mail to the city as unclaimed. The City did a title search of the building and identified the Yangs as the correct owner. The City then sent both previous notices to the Yangs’ correct address by certified mail in September 2012.

The City did not receive a response from the Yangs. It then scheduled a hearing about demolishing the property for November 1, 2012. The City sent the Yangs a hearing notice by regular mail and also sent a notice to the Yangs’ realtor. Soon thereafter, the post office returned the original certified mailing to the Yangs as unclaimed. This information was not present. The Yangs did not appear to the hearing on November 1 where the board decided to demolish the property. The property was demolished in January 2013, and a $22,500 bill was sent to the Yangs’ address for the work.

The Yangs then discovered their building was demolished and claimed the city violated their procedural due process rights by demolishing the property without adequate notice. The standard of review is whether the City’s efforts were “reasonably calculated” to inform the Yangs of the action taken on their property. The City of Wyoming attempted to contact the Yangs through posted notices, mailed notices to the Yangs, mailed notice to the realtor, and the post-hearing notice. Michigan caselaw has established that a posted notice is, by itself, an appropriate way to inform a person of the proceedings against him. Another precedent notes that notice mailed to a person’s home address generally satisfies due process requirements. The Yangs argue, however, that notice by itself is not adequate, since the hearing notice did not provide the reasons for demolishing the property and the post-hearing notice would have come too late for the Yangs to prepare to defend themselves.

The Court found that all of the information contained in all of the notices, taken in the aggregate, were sufficient to meet due process requirements. Even though the Yangs did not actually receive notice, as the certified mailing was returned unclaimed, the additional efforts made by the City were reasonable attempts to contact the Yangs. The Court found the city’s attempts at contacting the Yangs were “reasonably calculated” to give the Yangs adequate notice.

Dissent

The dissent argued that the majority misconstrued the facts of the case and the contents of the notices provided by the City. The final four attempts at contacting the Yangs were not adequate because they did not provide the reasons for the potential demolition of the building, providing “less information than the average parking ticket.” The issue wasn’t whether the forms of notice were adequate, but whether the notices actually informed the owner of the issue. In the case, the dissent argues the City failed to provide the reasons for demolition in the follow-up notices and thus violated procedural due process.

Abandoned/unsafe buildings, Due Process, Federal courts, Notice , , , ,

7th Circuit interprets Reed v. Gilbert to strike down local panhandling ordinance

August 10th, 2015

by Gary Taylor

Don Norton, et al v. City of Springfield
Federal 7th Circuit Court of Appeals, August 7, 2015

Springfield, Illinois adopted an ordinance that prohibits panhandling in its downtown historic district, which encompasses less that two percent of the City’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state government buildings.  The ordinance defines panhandling as an oral request for an immediate donation of money.  Signs requesting money are allowed, as are oral pleas to send money later. The City views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some people may find threatening.

The Plaintiffs contended that barring oral requests for money now but not regulating requests for money later is a form of content discrimination.  The 7th Circuit initially sided with the City in 2014.  It observed that “the [Supreme] Court has classified two kinds of regulations as content-based: One is regulation that restricts speech because of the ideas it conveys, the other is regulation that restricts speech because the government disapproves of its message.”  The 7th Circuit concluded that the ordinance did not meet either test for content-based speech.  It observed that the ordinance did not interfere with the marketplace for ideas, that it did not practice viewpoint discrimination, and that the distinctions that plaintiffs called “content discrimination” appeared to be an effort to make the ordinance less restrictive.

Plaintiffs requested reconsideration. The 7th Circuit agreed to reconsider, and deferred its decision until the Supreme Court’s decision in Reed v. Gilbert.  In light of the Supreme Court’s interpretation of content-based regulation, the 7th Circuit reversed its previous decision.  “The majority opinion [in Reed] effectively abolishes any distinction between content regulation and subject-matter regulation.  Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification….[T]he parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination.  Reed requires a positive answer.”

Justice Manion authored a concurring opinion to underscore the significance of Reed, and its interplay with the Supreme Court’s opinion in Ward v. Rock Against Racism.  “Under [interpretations of Ward], if an ordinance was not viewpoint-based, then it was content-neutral.  For example, a local government’s decision to eliminate religious speech or abortion-related speech was considered content-neutral because it was not viewpoint-based – as, for instance a regulation prohibiting ‘Christian speech’ or ‘pro-life speech’ was and remains….Reed saw what Ward missed – that topical censorship is still censorship….Few regulations will survive this rigorous standard”

Federal courts, First Amendment claims ,

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 ,