Elimination of median cut not a taking

November 26th, 2014

by Gary Taylor

Buck’s, Inc. v. City of Omaha
(Nebraska Court of Appeals, November 25, 2014)

Buck’s, Inc. owns and operates a gas station on the northwest corner of the intersection of 144th Street and Stony Brook Boulevard in Omaha. In August 2009, the City eliminated a cut in the median on Stony Brook Boulevard that gave eastbound traffic access to the gas station. No access points to the gas station were eliminated. The city engineer testified that the decision to eliminate the median cut was made to address safety concerns associated with the anticipated increased traffic generated by a new grocery store in the area. The city’s right-of-way manager testified that the City did not acquire any property or property interest from Buck’s for this project, and affirmed that Buck’s had three entrances to its property prior to the project, and continued to have three entrances after project completion.

Buck’s nevertheless brought an inverse condemnation action against the City. A board of appraisers was appointed, and Buck’s was awarded $30,000. Both parties appealed to the district court, which entered summary judgment for the City. Buck’s appealed.

The Nebraska Court of Appeals noted that the right of an owner of property that abuts a street or highway to have ingress and egress by way of the street is a property right in the nature of an easement, and the owner cannot be deprived of such right without due process of law and compensation for loss. The court also noted, however, that “as to damages claimed by reason of a change in the flow of traffic by placing medians in the center of a street, [the damages] result from the exercise of the police power and are noncompensable as being incidental to the doing of a lawful act.” After the median cut was closed, Buck’s still had access to Stony Brook Boulevard. “The fact that left-hand turns are now restricted is but an inconvenience shared with the general public.” The Court of Appeals affirmed the district court.

Highways, Nebraska courts, Takings , , ,

Junk vehicle ordinance not a traffic regulation; neither overbroad nor vague

November 21st, 2014

by Hannah Dankbar

Village of North Hudson v Randy Krongard
(Wisconsin Court of Appeals, November 18, 2014)

In November 2011 Krongard received two citations from Village of North Hudson for violating article II, chapter 90, § 44 of the Village Code by having two junk vehicles (cars without current registration) in plain view on his property.

Krongard pleaded not guilty in municipal court, but failed to show for his trial. He showed up a few months later with counsel seeking to vacate the municipal court judgment against him by saying that the Village ordinance is void, unlawful and invalid as it is preempted by, contrary and inconsistent with Wisconsin traffic regulations. The municipal court refused to vacate the judgment.  Krongard’s appeal was also dismissed by the circuit court. Krongard then appealed to the court of appeals.

Krongard claimed the Village’s ordinance conflicted with state traffic regulations in chapters 341 to 348 and 350.  Krongard argued that The Village’s ordinance “impermissibly defines unregistered vehicles as junk vehicles and regulates unregistered vehicles on private property.”

The Village argued that its ordinance and the state traffic regulations could not be contradictory because they regulated “two completely different issues.”  While the village ordinance is “concerned with the upkeep of private property,” the state traffic regulations were concerned “with the licensing, regulation of, outfitting and operation of vehicles[.]”

The circuit court decided, “this regulation, because of the way it is written, its location within the Village Ordinances, and the Village’s alternative definition of junk vehicle, falls under the Village’s ‘health, safety, welfare’ power granted in Wis. Stat. § 61.34.”  It also found the ordinance was a constitutionally valid exercise of that ‘health, safety, and welfare’ power.  As a result, the circuit court denied Krongard’s motion to vacate the default judgment. Krongard appealed to the court of appeals.

Krongard argued that because the village ordinance concerns motor vehicles, it must be a traffic regulation. The Village argued that its ordinance only addresses the problem of uncovered junk vehicles and has nothing to do with the operation of motor vehicles on highways or city streets.  Rather, as the circuit court correctly noted it “simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.”

The court rejected Krongard’s argument that the village ordinance is a traffic regulation. It stated that Krongard’s argument “ignores the fact that § 90-44 does not affect—directly or incidentally—motor vehicle operation. Rather, as the circuit court aptly noted on remand, it ‘simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.’”

Regarding the constitutionality of the ordinance, Krongard raises due process concerns that the Village’s provisions in Article II are overbroad and vague.

An ordinance is vague if it is “so obscure that [persons] of ordinary intelligence must necessarily guess as to its meaning and differ as to its applicability.” It is overbroad “when its language, given its normal meaning, is so sweeping that its sanctions may be applied to conduct which the state is not permitted to regulate.” The court found “no indication that Krongard could reasonably have any question as to what constituted a violation of the village ordinance, or the consequences for such a violation.”

The court dismissed all of Krongard’s claims.

Due Process, Nuisance, Wisconsin courts , , ,

News from around Minnesota: Is a septic system a modern day convenience?

November 20th, 2014

A southeast Minnesota Amish couple faces a third misdemeanor charge for allegedly building a home without a permit.  They say a county ordinance that requires the installation of a septic system violates their religious beliefs.  But earlier this year, Fillmore County zoning officials cited the couple for building a house without a permit. They entered a not guilty plea a few months ago.

The legal issue involves county regulations as of December 2013 requiring a septic system for new homes. According to the couple, such a system is considered a modern day convenience that goes against Amish beliefs and lifestyle.  A second Amish couple was also in court  facing similar charges for building without a permit.

The full story from Minnesota Public Radio is here.

current news, First Amendment claims ,

Rental market tight, will be getting tighter

November 19th, 2014

The Urban Institute recently sponsored its second annual Data, Demographics and Demand symposium.  The subject was the future of multifamily housing.  More than half the new households formed in the next six years will be renters rather than homeowners, yet renter incomes are on average only 70 percent of homeowner incomes.  Five experts in rental housing offered their observations, summarized in the most recent MetroTrends blogpost (put out by the Urban Institute).  It is a very interesting read, especially for me, living in a college town that is experiencing a boom in multifamily construction.  Three quick points:

  1. Rental supply is tight and getting tighter. Just to keep up with normal rental demand, including the yearly loss of about 100,000 units, the country needs 400,000 new rental units a year.
  2. Much of the rental housing currently under construction will be affordable only to the top 4 to 5 percent of renters.  Other renters will need to rely on an already-constrained supply of existing housing, much of which will be single-family rentals.
  3. With high rents, stagnant incomes, and constrained supply, one panelist said “it would not shock” him if the 25 percent of renters who pay more than 50 percent of their income for rent and utilities goes up to 35 percent in a few years time.

The post also suggested the roles local, state and national government can play to help solve these challenges.  I urge you to read the original MetroTrends post.

current news, Housing , ,

In the end, the Cleveland Clinic got its helipad

November 18th, 2014

by Hannah Dankbar

Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals
(
Ohio Supreme Court, November 5, 2014)

The Board of Zoning Appeals of the City of Cleveland denied a permit to Cleveland Clinic Foundation and Fairview Hospital to build a helipad on the roof of a two-story addition to the hospital.

The land that the hospital sits on is zoned as a Local Retail Business District, meaning “a business district in which such uses are permitted as are normally required for the daily local retail business needs of the residents of the locality only.” (Cleveland Code of Ordinances (C.C.O.) 343.01(a)). The hospital has been granted many variances since this zoning was put in place.

In October 2010, the Clinic filed an application with the City’s Department of Building and Housing seeking approval of three construction projects, including the construction of the helipad. The City cited C.C.O. 343.01(b)(8), which says “accessory uses” are allowed “only to the extent necessary [and] normally accessory to the limited types of neighborhood service use permitted under this division,” and rejected all three projects.

The Clinic appealed to the Board of Zoning Appeals (BZA).  Opponents testified about potential noise and traffic problems.  The hospital representatives testified that almost all of the hospitals in the Cleveland metropolitan area have helipads, and that the use of helicopters in the transport of patients reduces travel time and, therefore, saves lives.   The BZA approved the other two projects, but denied the permit to construct the helipad citing C.C.O. 343.01(b)(8) by saying, “those uses that the Zoning Code characterizes as retail businesses for local or neighborhood needs would not involve a helipad as normally required for the daily local retail business needs of the residents of the locality.”

From here the Clinic appealed the denial to the Cuyahoga county Court of Common Pleas, who reversed the decision. This court used C.C.O. 343.01(b)(1) that provides that with limited exceptions, all uses permitted in the Multi-Family District are also permitted in the Local Retail Business District. Hospitals are expressly permitted in the Multi-Family district, and so the Court of Common Pleas concluded that a helipad is “customarily incident to” a hospital and therefore qualifies as an “accessory use.”

The BZA appealed to Eighth District Court of Appeals, who reversed again. The court found that ambiguity exists in C.C.O., and ultimately decided to give deference to the BZA and its original decision, saying “When the BZA reasonably relies on a code provision, its determination should hold so long as its decision is not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record,” This is to be true regardless of the fact that the law requires any ambiguity in a zoning ordinance to be construed in favor of the property owner.

The Supreme Court of Ohio determined that the wrong standard of review was used by the Eighth District Court of Appeals. Rather than review the BZA’s decision for clear error, the Court of Appeals should have been reviewing the Court of Common Pleas decision, and only overruling the Court of Common Pleas if the decision is not supported by a preponderance of reliable, probative and substantial evidence. Reversal is only appropriate when there is an error in the application or interpretation of law.

The Supreme Court of Ohio refers to C.C.O. 325.02 and 325.721 (to define “accessory use”), 337.08 (types of buildings permissible in a Multi-Family District), and 343.01(b) (permitted buildings in a Local Retail Business District). “Given the record before us, we have little trouble concluding that the preponderance of substantial, reliable, and probative evidence supports the [Court of Common Pleas'] conclusion that helipads are customarily incident to hospitals, at least in Cleveland.”

Accessory uses, Ohio courts, Zoning board of adjustment , ,

Improper ex parte contact only invalidated vote of commissioner making the contact

November 13th, 2014

by Hannah Dankbar

Doug and Louise Hanson v Minnehaha County Commission
(South Dakota Supreme Court, October 29, 2014)

Eastern Farmers Cooperative (EFC) applied for a conditional use permit to build an agronomy facility. The facility would store, distribute and sell a variety of farm products, including anhydrous ammonia. The land the facility would sit on, and the surrounding area is zoned as A-1 Agricultural. The Minnehaha Planning Commission recommended approving the permit with ten conditions, even though local residents, including the Hansons, voiced their objections at the Planning Commission hearing because of safety and aesthetic concerns. The Hansons appealed to Minnehaha County Commission. In anticipation of the appeal one of the county commissioners (Kelly) toured an agronomy facility near Worthing, South Dakota. The facility was owned by EFC, but it is unclear if the commissioner knew this when he set up the tour. The County Commission held its hearing and approved the permit by a unanimous vote.  Commissioner Kelly disclosed at the hearing that he had touring the Worthing facility, and that he was impressed by its safety measures. The Hansons appealed to the circuit court. The court held that the Commissioner Kelly’s vote did not count due to the improper ex parte communication, but the other votes were not affected and so the approval of the permit stood. The Hansons appealed the decision.

The Hansons claim that they were denied due process in two ways: (1) that the Minnehaha County Zoning Ordinance (MCZO) does not provide adequate criteria upon which to base a decision to grant a conditional use permit, and (2) that Commissioner Kelly’s participation in the appeal to the County Commission denied them a fair and impartial hearing,

In giving counties ability to control their own zoning, counties must put in place criteria for determining when conditional use permits may be granted.  The Minnehaha County Zoning ordinance delineates three general criteria applicable to every conditional use permit application, and an additional six applicable to the types of agricultural uses at issue in this case.  The South Dakota Supreme Court noted that zoning ordinances are presumed to be constitutional, and that to overcome this presumption the challenging party must show the ordinance is arbitrary, capricious and unconstitutional. Abstract considerations are not sufficient. The South Dakota Supreme Court rejected the Hanson’s argument because they failed to show any way in which the standards in the ordinance did not pass muster.

2. The Hansons argue that the EFC should be required to “begin anew” with the permitting process because the votes of the other commissioners were influenced by the statements of Commissioner Kelly  To meet their burden, however, The Supreme Court stated that the Hanson’s must actually show that either Commissioner Kelly’s actions were sufficient to taint the entire preoceeding or that one or more of the other commissioners should be disqualified individually.  The Hanson’s failed to produce any evidence of any influence Kelly’s actions may have had on the other commissioners.  The court concluded that invalidating Kelly’s vote alone was a sufficient remedy.  With that vote invalidated, the Commission still approved the conditional use permit 3-0.

 

Conditional Uses/Special Uses, Due Process, South Dakota courts , , ,

T-Mobile South case argued before US Supreme Court

November 12th, 2014

Monday the US Supreme Court heard arguments in the case of T-Mobile South v. City of Roswell, a case interpreting the “in writing” requirement of the Federal Telecommunications Act.

T-Mobile South submitted an application to build a 108-foot cell tower on a vacant lot in a residential neighborhood in the city of Roswell, Georgia (the respondent). The company proposed a tower designed to look like a pine tree, branches and all, though this one would have stood at least twenty feet taller than surrounding trees. The city’s zoning department found that the application met the requirements in relevant city ordinances, and recommended approval of the application subject to several conditions. The city then held a public hearing at which a T-Mobile South representative and members of the public spoke. Five of the six members of the city council then made statements, with four expressing concerns and one of those four formally moving to deny the application. That motion passed unanimously. Two days later, the city sent T-Mobile South a letter stating that its application had been denied. The letter did not provide reasons for the denial, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later.

47 U.S.C. § 332(c)(7)(B)(iii) – a provision of the Federal Telecommunications Act – requires that state or local government decisions denying wireless infrastructure requests “shall be in writing and supported by substantial evidence contained in a written record.” The question in front of the Supreme Court is  “Whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s ‘in writing’ requirement.”

A recap of Monday’s arguments by Miriam Seifter with SCOTUSblog can be found here.  From this summary the reader is left with the impression that the city of Roswell was not particularly interested in standing up for the interests of other local governments in how it focused its argument.

Telecommunications towers, United States Supreme Court ,

News from around Kansas: Garden City sued under RLUIPA

November 11th, 2014

It’s the classic love story: Church fills vacant space downtown; church and city (appear to be) happy for 10 years; city gets restless, wants to start seeing other businesses, and tells church it doesn’t comply with zoning; church feels spurned and sues city in federal court under RLUIPA.

The KSN.COM article is here.  I can’t wait to read how it ends.

current news, Federal courts, RLUIPA ,

Welcome our newest contributor

November 10th, 2014

Please welcome another contributor to the BLUZ.  Hannah Dankbar, from Johnston, Iowa, is a graduate student pursuing a double Master’s degree in Community and Regional Planning and Sustainable Agriculture. She is interested in researching how to incorporate biodiversity and urban agriculture in land use planning.

 

Uncategorized

MI Court of Appeals interprets MZEA provisions regarding appeal of site plan approval

November 10th, 2014

by Hannah Dankbar

Julie Visser Trust v. City of Wyoming
(Michigan Court of Appeals, October 30, 2014)

In July 2012 the City of Wyoming rezoned a parcel of land from R-1, single family residential, to R-4, multifamily residential so John Lee Koetje, Koetje Investors Limited Partnership, and Koetje Investors-Chateau Limited Partnership could construct Phase 4 of Chateau Village Apartments.  Phases 1-3 of the project border the rezoned property. Visser Trust owns property zoned R-1 in Chateau Estates, due South of the property in question. In December 2012 after the rezoning, the Wyoming City Planning Commission approved Koetje’s revised site plan for construction. Visser Trust challenged (1) the site plan approval, and (2) the rezoning approval, and further raised issues concerning (3) an alleged Freedom of Information Act violation, (4) an illegal contract rezoning, and (%) a violation of negative restrictive covenants.  In July 2013 the trail court dismissed all counts, and Visser Trust appealed to the Michigan Court of Appeals.

Site plan. The trial court cited MCR 7.112(B) and said that because the plaintiff filed a complaint, and not an appeal of the planning commission’s site plan approval, the time for Visser Trust to object had passed. The Court of Appeals disagreed. The Michigan Zoning Enabling Act (MZEA) does not specifically address whether and how an interested party may challenge the approval or denial of a site plan. There is no statutory provision that requires the plaintiff to challenge the Planning Commission’s approval of the site plan in a specific manner, as opposed to a general civil complaint. The trial court therefore erred in dismissing this part of Visser Trust’s lawsuit.

Rezoning. The plaintiff argues that the rezoning was invalid, contending that after Koetje added nine conditions to its voluntary offer of conditions , the entire application should have gone back through the Planning Commission for an additional public hearing and recommendation.  The Court of Appeals rejected this argument.  The MZEA says the legislative body may refer any proposed amendments to the zoning commission for consideration and comment.  The word “may” indicates that the city council was not required to send the revisions back to the Planning Commission.

Contract zoning.  The plaintiff also argues that the rezoning was illegal “contract zoning”. MCL 125.3405 permits local governments to “approve rezoning subject to voluntary conditions offered by a landowner,” and lists several criteria for distinguishing between a legal voluntary offer and illegal contract zoning. Plaintiff submitted a letter from Koetje’s engineer regarding the rezoning, wherein Stalsonburg wrote that Wyoming “desires to accomplish this as ‘contract rezoning.’” Plaintiff argues that the letter supports the inference that Wyoming engaged in illegal contract zoning. Apart from the use of the phrase “contract rezoning” in the letter, however, plaintiff did not produce any any evidence that Wyoming required Koetje to agree to certain conditions.  The Court of Appeals affirmed the trial court’s dismissal of this count.

FOIA. Plaintiff argues that the trial court erred in dismissing its FOIA claim. Donald Visser submitted a FOIA request, but did not identify for whom the documents were being requested. The plaintiff referenced Donald Visser’s request in the complaint, but the trial court noted that plaintiff neither submitted the FOIA request, nor was the request submitted on plaintiff’s behalf. The plaintiff therefore did not have standing to bring a FOIA complaint.

Negative restrictive covenants. Plaintiff alleged that the subject property was at one time part of a larger parcel that contained the same restrictions as lots in the Chateau Estates—i.e. restricted to single-family development. The trial court found this accusation vague and unclear, and that plaintiff failed to produce any documentary evidence to prove this allegation.

“The essential elements of a reciprocal negative easement are: (1) a common grantor; (2) a general plan; and (3) restrictive covenants running with the land in accordance with the plan and within the plan area in deeds granted by the common grantor.”  The Court of Appeals affirmed the trial court’s findings that the questioned property was not part of the same development as the plaintiff’s property, and that the court was not able to find any documentation to support a contrary conclusion.

The trial court erred in determining that it did not have jurisdiction to hear plaintiff’s challenge to the site plan approval, but was affirmed in all other respects.

 

 

 

Contracts/Conditional Zoning, Covenants and deed restrictions, Open Records, Rezoning, Site plans , , ,