The Midwest Planning BLUZ

by Kaitlin Heinen

Sierra Club Iowa Chapter, Linda Biederman, and Elwood Garlock v. Iowa Department of Transportation
(Iowa Supreme Court, June 7, 2013)

The Iowa chapter of the Sierra Club has more than 5000 members residing in the state, some of which hike in Rock Island State Preserve and Rock Island County Preserve. The Iowa Department of Transportation (IDOT) is a state administrative agency that has proposed extending Highway 100 west of Cedar Rapids, which would run adjacent to Rock Island State Preserve and through Rock Island County Preserve, thus negatively impacting the ecosystems in the two preserves.

The Sierra Club Iowa Chapter and two of its members filed a petition for judicial review challenging IDOT’s Highway 100 project. The IDOT responded with a motion to dismiss, which was granted by the district court because the Sierra Club “had not exhausted administrative remedies by first seeking a declaratory order from IDOT under section 17A.9(1)(a).” The Sierra Club did not participate in any administrative proceedings with IDOT prior to filing the petition for judicial review.

On appeal, the Iowa Supreme Court addressed the issue “if a party challenging agency action must seek a declaratory order from the agency under section 17A.9(1)(a) before petitioning for judicial review in order to satisfy the exhaustion doctrine.” Important to note, Iowa Code § 17A.19(1) provides: “A person or party who has exhausted all adequate administrative remedies and who is aggrieved or adversely affected by any final agency action is entitled to judicial review thereof . . . .”  There are situations when a party can bypass the exhaustion doctrine; however, “the Sierra Club has not preserved error on an argument for one of these exceptions to apply.”

The Sierra Club filed a complaint in federal court, captioned “Complaint for Declaratory and Injunctive Relief.” The complaint involved the United States Secretary of Transportation and the Administrator of the Federal Highway Administration as defendants. The Sierra Club alleged that “the secretary and administrator did not follow the applicable federal statutes and regulations when they issued and approved the Final Supplemental Impact Statement for the Highway 100 project.” Because of the complaint’s caption, the Iowa Supreme Court held that the Sierra Club requested declaratory and injunctive relief. Because the Sierra Club sought declaratory relief, “the court must [construe] section 17A.9 to determine whether declaratory orders are mandatory or permissive.” Section 17A.9 was adopted in 1974 as part of the Model State Administrative Procedure Act. When enacted, 17A.9 required “any agency with authority to issue declaratory rulings to do so within thirty days after a party files the petition…Failure of the agency to do so results in the administrative remedy being ‘deemed inadequate or exhausted.’”

To construe such a statute, the court must determine legislative intent. If the statute’s language is unambiguous, the court looks no further. One could argue that “the requirement to file a petition for declaratory relief with the agency is permissive because the word ‘may,’ as found in section 17.9(1)(a), is unambiguous.” The Iowa Code’s rules of statutory construction state: “The word ‘shall’ imposes a duty. . . . The word ‘must’ states a requirement. . . . The word ‘may’ confers a power.” Further, “the legislature’s use of the word ‘may’ usually indicates legislative intent for the statute to apply permissively…[so] a person can argue that a party need not exhaust administrative remedies before filing a declaratory judgment action with the court.” But to the contrary, “when a statute provides a person with an administrative remedy and uses the word ‘may,’ but does not explicitly state the administrative remedy is the exclusive remedy, the person is still required to exhaust the administrative remedy before seeking court intervention…[so] a person can also argue that a party must file a declaratory order with the agency before seeking court intervention, because the Code uses the word ‘may.’” As a result of these competing interpretations, the court found the statute ambiguous.

After assessing the statute in its entirety, the court concluded the legislature’s intent when enacting section 17A.9(1)(a) “requires the Sierra Club to first petition IDOT and therein ask the agency to determine whether IDOT complied with sections 314.23(3) and 314.24 in extending Highway 100 adjacent to the Rock Island State Preserve and through the Rock Island County Preserve.” First, by using the term “inadequate or exhausted,” the legislature indicated that a party must first exhaust his or her administrative remedies before seeking court intervention. Second, an article written by the 1973-1974 counsel to the Subcommittee, Arthur Bonfield, “revealed that the legislature created the administrative procedure for agency-issued declaratory orders to replace the court-provided remedy of declaratory judgments for matters within an agency’s jurisdiction,” which means that the legislature clearly “intended section 17A.9 to be the preferred method for obtaining a declaratory order when a person challenges the agency’s administration of a statute.” Third, “in a declaratory order proceeding, the agency must state in its order the facts it relied upon and the basis for its decision…[which] ensures the agency will make a complete record and the parties will know the rationale supporting the agency’s decision.” Fourth, though the Sierra Club argued it would be futile to ask the agency to reverse its own decision, the court did not agree. In the past, “agencies…have decided many issues within their purview…[with] no evidence to suggest agencies will conduct declaratory order proceedings in a biased, unprofessional manner and without regard for the rules promulgated by the legislature.” Finally, “any party to a declaratory order may seek judicial review of that order…[which] protects a party to a declaratory order proceeding if the agency makes the incorrect decision.”

Therefore, the Iowa Supreme Court “concluded [overall] that the Sierra Club must first seek a declaratory order under Iowa Code section 17A.9(1)(a) before asking the court for relief; and thus, the exhaustion doctrine bars its petition.” The Iowa Supreme Court affirmed the district court’s judgment.

Iowa Supreme Court, Procedural Issues, public roads and highways failure to exhaust administrative remedies, Iowa Supreme Court

by Gary Taylor

City of Postville et al., v. Upper Explorerland Regional Planning Commission et al.
(Iowa Supreme Court, June 7, 2013)

The Upper Explorerland Regional Planning Commission is a regional planning commission serving five northeast Iowa counties that is organized under Iowa Code chapters 28E and 28H. There are twenty-four commission members.  None receive compensation for their service on the commission, except that three members have salaries for full-time government positions that require them to serve on the commission.  Others receive reimbursement for mileage.

The commission was examining the feasibility and cost of either expanding the Postville office of the commission, or locating alternative office space in any of the five counties.  Contract negotiations for properties in the five-county area took place, and on September 23, the commission held a meeting to approve a contract to purchase property in either Decorah or Postville. Sixteen members attended. After lengthy discussion, the motion was made to approve a proposed purchase contract for the Decorah property. The attending members unanimously agreed with a proposal to conduct the vote by secret ballot. The members cast their ballots and then publicly counted the votes. The motion to purchase the Decorah property was approved 10-6.

Immediately after the vote concerns were raised about the propriety of the secret ballot vote under the Iowa Open Meetings Act (OMA). After the meeting one of the commission members told another member before leaving that there was a problem with the ballot vote. The same night, this concern was relayed to the commission’s executive director. The following Monday after the vote, all commission members received an email indicating concern about the legality of the secret ballot vote. Several members proposed that if the voting members revealed their vote and recorded their decision in the minutes, then the commission’s action would be legal. The commission also contacted the State Ombudsman’s Office, which recommended sending new written ballots to each voting member. The commission heeded this recommendation and instructed each voting member to reaffirm their vote and include their name on the ballot. Of the sixteen original voting members, one abstained, another returned the ballot unmarked, and a third did not return the ballot at all. Six members changed their votes in the subsequent reaffirmation. Despite this, the outcome remained the same with ten “yes” votes in favor of purchasing the property in Decorah. The commission distributed revised minutes of the meeting, which listed the name and vote of each member who was present for the September 23 meeting.

The City of Postville and a resident taxpayer of Allamakee County filed suit claiming fifty-one violations of the OMA for actions taken associated with the office relocation decision and several others.  Among the remedies requested by the City was an order that commission members be held personally liable for the OMA violations.  The district court found for the Commission on all counts.  The City appealed to the Court of Appeals.

The Court of Appeals boiled the claims down to three primary issues:   (1) whether a volunteer of a governmental body is immune under Iowa Code section 28H.4 for damages due to OMA violations; (2) whether the governmental body’s meeting notices met OMA requirements; and (3) whether a certain publication is a newspaper of general circulation, as required by section 28E.6(3)(a).

Volunteer immunity under OMA.  The commission and its members admitted to violating OMA with respect to the secret ballot and subsequently when the commission reaffirmed the vote by mail; however, they argued they are immune from liability under the state immunity provision in Iowa Code section 28H.4(2), which provides that “a director, officer, employee, member, trustee, or volunteer is not personally liable for a claim based upon an act or omission of the person performed in the discharge of the person’s duties, except for acts or omissions which involve intentional misconduct or knowing violation of the law, or for a transaction for which the person derives an improper personal benefit.”

The Court of Appeals noted that “intentional misconduct” requires more than a reckless disregard for the law, and a “knowing violation” requires a deliberate or conscious act. The court found no evidence that the actions of the members amounted to intentional misconduct or a knowing violation. Instead, the record shows the members did not identify an issue with the secret ballot vote until after its completion. Upon identifying the problem, the members self-policed their actions and took corrective measures.

On appeal the city argued for the first time that the immunity provided in 28H.4 does not apply to violations of OMA; however, because the court does not decide issues not presented in district court the issue was “left for another day.”

Posting of meeting notices.  The City alleged the commission conducted improper closed sessions lacking reasonable meeting notice from October 28, 1999, through August 19, 2010, basing its claim on the fact the commission posted its meeting notice on a bulletin board located in the hallway of the commission’s Postville office. The bulletin board is approximately thirty to forty feet from the main public access door, and is not visible from the entrance door to the office. The office is open to the public Monday through Friday from 8:00 a.m. until 4:30 p.m.

OMA requires notices of meetings to be provided “in a manner reasonably calculated to apprise the public” of the date, time, location and subject of the meetings.  One manner of notice specified in OMA is to “post the notice on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose ….”  The court remanded the case to the district court for further inquiry into whether the meeting notices met this standard.  It noted that the commission secretary posted the notice on the board at least five days in advance of each meeting, but the public generally does not utilize the hallway where the bulletin board is located unless the individual has an appointment or uses the restroom. The question remained how often the public uses the hallway or if the board and its contents are visible from the reception area.

Newspaper of general circulation. Iowa Code 28E.6 requires councils of governments to annually publish the “names and gross salaries of persons regularly employed by the entity” in “one newspaper of general circulation within the geographic area served by the joint board of the entity.” The City contended the Olewein Daily Register was not a newspaper of general circulation because there are no individual subscribers to the paper in three of the five counties, and no business subscribers in four of the five counties.

The court noted that the statute only requires publication in one newspaper – the legislature expressly stated it is not necessary to publish in multiple newspapers within a single geographic area. Moreover, it is not necessary to publish using a newspaper outside the geographic region. The undisputed record established there is no single newspaper available that has subscriptions in all five counties within the commission’s service region. The commission specifically selected the Register because it is the only daily newspaper serving the five-county area. A “newspaper of general circulation” is a publication that “contains news and information of interest to the general public, rather than to a particular segment, and that is available to the public within a certain geographic area….[It is] not determined by the number of its subscribers, but by its diversity….More compelling is the fact the Register serves the same area as the commission.”  The court sided with the commission on this claim.

Iowa Supreme Court, Open Meetings Iowa Code 21, Iowa Code 28E, Iowa Code 28H, Iowa Supreme Court, open meetings act

by Gary Taylor

Moyer v. City of Des Moines Zoning Board of Adjustment
(Iowa Court of Appeals, May 29, 2013)

Don Moyer owns Hawkeye Motors, Inc. By 1997, Hawkeye Motors held title to multiple parcels of property on the corner of East 14th Street and Washington Avenue in Des Moines, including the lot located at 1433 East 14th Street (Lot 1433). Lot 1433 spans 20,500 square feet over two parcels and contains a 1652 square foot building originally built for auto repair.  From the time Hawkeye Motors purchased the property until 2006, the company either sold vehicles from Lot 1433 or leased the property to other tenants to sell or repair used cars. The lot was originally zoned as C-2, 2, which allowed used vehicle display. The city later rezoned Lot 1433 as C-1, a “neighborhood retail commercial district” that prohibits used vehicle display. On August 23, 2001, the city granted the property a legal nonconforming status for used auto sales and issued a certificate of occupancy to Hawkeye Motors to utilize the property as a “used automobile sales lot.”

Moyer held a used car dealer’s license issued to Hawkeye by the Iowa Department of Transportation that included Lot 1433, but allowed the license on the lot to lapse in 2004. In January 2006, Moyer leased Lot 1433 to Diaz Tinting, Inc. The city issued Leonardo Diaz a certificate of zoning compliance, which on January 10, 2006, authorized “building reuse from used cars to detailing and tinting.” The certificate provides: “No change of use may be made at this location unless a new Certificate of Occupancy is granted for such use and no change in this building or land may be made without first consulting the Zoning Enforcement Office.” In March 2007, Hawkeye Motors sold Lot 1433 on contract to Don and Gloria Moyer (his wife) personally, and issued the deed to the couple in 2011. During a property inspection by the city in January 2009, the enforcement officer discovered cars were being sold and repaired on Lot 1433. The city notified the Moyers six days later, and again in May 2009, that this parcel lost its legal nonconforming use status and consequently the auto sales and repair activities were unauthorized. The Moyers did not appeal either determination.  An April 24, 2010 inspection of Lot 1433 found continued illegal auto repair, and the city again notified the Moyers of “illegal business operations….”  When the Diaz Tinting lease ended one year later Moyer asked the city for a letter to the DOT stating that Lot 1433 was properly zoned for displaying and selling used cars. The city denied Moyer’s request. Moyer appealed the city’s denial, but the zoning board of adjustment upheld the city’s refusal.  Moyer appealed.

The Iowa Court of Appeals made the following statements regarding nonconforming uses on its way to upholding the decision of the zoning board of adjustment:

• Sometimes intent to abandon may be inferred from a failure to apply for a license to carry on the nonconforming use.  [The same may be inferred] from amending the licensed use of the property.

• Because [the Des Moines Ordinance] sets a time frame for determining when discontinuation of a property’s former use triggers the loss of its nonconforming designation, the city need not prove the owner’s intent to abandon. But intent to abandon presupposes discontinued use. Therefore, while proof of intent is not necessary to establish abandonment, an inference of the owner’s intent to abandon is relevant to nonuse.

The court concluded that because Moyer was without a dealer’s license to sell vehicles on the property, and his tenants had a certificate permitting the property’s repurpose to detailing and tinting, the board of adjustment could properly infer discontinued use as a used car display lot for at least six months [required under the ordinance] between 2006 and 2009.  Moyer attempted to distinguish between his 2001 “Certificate of Occupancy” and Diaz’s 2006 “Certificate of Zoning Compliance,” arguing that the latter could not revoke the former, and therefore could not be used as evidence of abandonment; however, the Des Moines zoning officer explained that the purpose of the Certificate of Zoning Compliance is “to document the change in use mostly for office use.” Both forms read substantially the same, including the requirement that “this certificate must be posted in a conspicuous place on the premises.” The court found that the board was entitled to rely on the 2006 certificate as circumstantial evidence the property no longer served as a used car lot.

Iowa Court of Appeals, Non-Conforming Uses abandonment of nonconforming use, Iowa Court of Appeals, nonconforming uses

by Gary Taylor

Congress shall make no law respecting an establishment of religion….

Yesterday the U.S. Supreme Court agreed to hear the case of Greece, NY v. Galloway, which focuses on the first ten words of the First Amendment, commonly referred to as the Establishment Clause.  The Second Circuit Court of Appeals ruled last year that the Establishment Clause was violated when the Greece Town Board repeatedly used Christian clergy to conduct prayers at the start of its public meetings. The decision created split with other appeals courts that have upheld prayer at public meetings.  This split among the appeals courts led to the Supreme Court taking the case.  The Court will hear the case in its next term, which begins in October. Its decision should come in the spring of 2014, and could have broad implications for public schools and public events.

Analysis from Scotusblog is here.

First Amendment claims, United States Supreme Court First Amendment Establishment clause, United States Supreme Court

by Gary Taylor

City of Arlington, Texas v. Federal Communications Commission
(U.S. Supreme Court, May 20, 2013)

This case was previously discussed in this blog here.  On Monday, the U.S. Supreme Court issued its opinion, which effectively validates the FCC’s shot clock declaratory ruling.  A summary of the Court’s opinion:

The Federal Telecommunications Act (FTA) requires state or local governments to act on siting applications for wireless facilities “within a reasonable period of time after the request is duly filed.” Relying on its broad authority to implement the FTA, the Federal Communications Commission (FCC) issued a Declaratory Ruling (the shot clock) concluding that the phrase “reasonable period of time” is presumptively (but rebuttably) 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications. The cities of Arlington and San Antonio, Texas, argued that the Commission lacked authority to interpret the language “within a reasonable period of time” because doing so amounted to determining the jurisdictional limits of its own authority – a task exclusively within the province of Congeress. The Fifth Circuit Court of Appeals applied precedent from the case of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to that question. Finding the statute ambiguous, it upheld as a permissible construction of the statute the FCC’s view that the FTA’s broad grant of regulatory authority empowered it to adopt the Declaratory Ruling.

In a 6-3 decision, the U.S. Supreme Court affirmed the Fifth Circuit.  Writing for the majority, Justice Scalia found no distinction between an agency’s “jurisdictional” and “nonjurisdictional” interpretations. When a court reviews an agency’s interpretation of a statute it administers, the question is always, simply, whether the agency has stayed within the bounds of its statutory authority. The “jurisdictional-nonjurisdictional” line is meaningful in the judicial context because Congress has the power to tell the courts what classes of cases they may decide—that is, to define their jurisdiction—but not to prescribe how they decide those cases. For agencies charged with administering congressional statutes, however, both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is beyond their authority and can be struck down by a court.  Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. If, however the statute is silent or ambiguous, the court must defer to the administering agency’s construction of the statute so long as it is permissible. Because the question is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out an arbitrary subset of “jurisdictional” questions from the Chevron framework.

The Court rejected Arlington’s contention that Chevron deference is not appropriate here because the FCC asserted jurisdiction over matters of traditional state and local concern. The case does not implicate any notion of federalism: The statute explicitly supplants state authority, so the question is simply whether a federal agency or federal courts will draw the lines to which the States must hew.

A general conferral of rulemaking authority validates rules for all the matters the agency is charged with administering. In this case, the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency’s interpretation of “reasonable period of time” at issue was promulgated in the exercise of that authority.

cell towers, Telecommunications towers, United States Supreme Court cell tower shot clock, FCC, Federal Telecommunications Act, United States Supreme Court

by Gary Taylor

Curry Investment Co., et al. v. Kansas City Board of Zoning Adjustment
(Missouri Court of Appeals, Western District, May 7, 2013)

On May 20, 2011, MLB Holdings filed an application with the Kansas City Board of Zoning Adjustment (BZA) requesting a special use permit to operate a pawn shop in Kansas City, Missouri. The landowner, Curry Investment Company, agreed to lease its building and parking lot to MLB.  The property where the building and parking lot are located contains two nonconforming outdoor advertising signs, which Curry Investment leases to CBS Outdoor. The BZA held a hearing on July 12, 2011, concerning MLB’s application. The BZA staff submitted a report at the hearing that cited the requisite special use permit criteria, and concluded that “all of these criteria are met with the proposed application.” The report also stated:

In recent years staff has had a general policy that as property is redeveloped,3 any existing billboards that are on the site are removed within five years of the approval of the development. The City Plan Commission has affirmed that position several times, specifically in the last several months . . . . Staff believes as part of the approval process for a pawn shop that this development be held to the same standard as other developments within other areas of the City.

Curry Investment opposed any condition that required removal of the signs. Ultimately, the BZA approved the special use permit subject to  conditions, including removal of the outdoor advertising signs. Curry Investment and MLB requested a rehearing. The BZA held a hearing on the request for rehearing, and the BZA thereafter denied a rehearing.

Curry appealed the BZA decision to circuit court, which found that the BZA’s decision to require removal of the two outdoor advertising signs for special use permit approval for the pawnshop was not supported by substantial and competent evidence, was unrelated to any impact generated by the pawnshop use at the property, and exceeded the BZA’s authority. The BZA then filed a notice of appeal to the Missouri court of appeals.

The BZA contended that its authority to require removal of nonconforming signs as a condition for a special use permit comes from its mandate to determine if a proposed special use complies with the standards of the Code, whether it is in the interest of the public convenience and will not have a significant adverse impact on the general welfare of the neighborhood or community, and whether it is compatible with the character of the surrounding area in terms of building scale and project design. The Court of Appeals disagreed.  The record reflected that the BZA staff examined all of the special use criteria set forth in the zoning code and concluded that “all of these criteria are met with the proposed application.” Therefore, the staff found the proposed pawn shop, in its proposed location: 1) to be in compliance with the standards of the Code, 2) to be in the interest of public convenience and to not have a significant adverse impact on the general welfare of the neighborhood or community, 3) to be compatible with the character of the surrounding area in terms of site planning and building scale and project design, 4) to be compatible with the character of the surrounding area in terms of operating characteristics, such as hours of operation, outdoor lighting, noise, and traffic generation, and 5) to not have a significant adverse impact on pedestrian safety or comfort. “While the BZA now contends otherwise on appeal, nothing in the record suggests that removal of the nonconforming outdoor advertising signs was related to any of the special use criteria set forth in the Code. To the contrary, the BZA staff stated that all of the special use criteria were met, but that sign removal was recommended based on a ‘general’ staff policy that as property is redeveloped, the removal of existing billboards is required….Once it was determined that the criteria for the special use permit were met, it was unreasonable to require removal of the nonconforming signs as a special use permit condition. While the BZA may want to foster a general policy that, as property is redeveloped, any existing billboards on a site are removed, where the BZA has proven no relation to sign removal with the special use criteria set forth in the zoning code, this policy is in contradiction to [the protection of] nonconforming signs.”

Missouri Courts, Non-Conforming Uses, Signs and billboards, Zoning board of adjustment billboards, Missouri Court of Appeals, nonconforming uses, Zoning board of adjustment

by Kaitlin Heinen

Rondigo, LLC, Dolores Michaels v. Township of Richmond, Michigan
(Federal 6th Circuit Court of Appeals, March 28, 2013)

Rondigo, LLC is a Michigan limited liability company in Macomb County owned by Dolores Michaels. Rondigo and Michaels (the plaintiffs) have operated a farm in Richmond Township since 2004. In February 2006, the plaintiffs began composting on the farm and started constructing a driveway to assist with the composting. The Supervisor of Richmond Township, Gordon Furstenau, issued a stop-work order. The Township filed suit in state court in regards to the  driveway’s construction, which they claimed violated several zoning ordinances.

The Michigan Department of Agriculture also received complaints from neighbors about the farm’s odor. So the Department inspected the farm in October 2006 and ordered the plaintiffs to submit a compost operations plan by December 2006. The Department inspected the farm again in January 2007 and found that the plaintiffs had been stockpiling leaves. The Department advised them to remove the piles because runoff from the leaves could negatively impact groundwater in the area. The plaintiffs did not remove the piles, allegedly because they could not do so without the driveway. The Department sent a letter in April 2007, saying it would refer the matter to the Michigan Department of Environmental Quality (MDEQ) if the leaves were not removed. So the plaintiffs filed an emergency motion with the state court to remove the bar on the driveway’s construction. The court granted the motion, but the plaintiffs did not remove the leaves. So the matter was referred to the MDEQ.

In January 2008, the plaintiffs filed this suit against Richmond Township, Furstenau, Four Township Citizens’ Coalition, more than 20 Macomb County residents, 2 Department employees, and 3 MDEQ employees. “The plaintiffs asserted five claims: (1) a 42 U.S.C. § 1983 claim that the defendants violated the plaintiffs’ constitutional rights; (2) a 42 U.S.C. § 1985(3) claim that the defendants conspired to deprive the plaintiffs of their constitutional rights; (3) a 42 U.S.C. § 1986 claim that the defendants knowingly failed to prevent the violation of the plaintiffs’ constitutional rights; (4) a civil-conspiracy claim under Michigan state law; and (5) a defamation claim under Michigan state law.” The plaintiffs also asserted that the Township’s zoning ordinances were unconstitutionally vague. The district court dismissed all these claims, so the plaintiffs appealed to the 6th Circuit.

First, the plaintiffs argued that the district court erred in holding that “res judicata” bars their claims against the Township and Furstenau. Under Michigan law, “res judicata” bars an action if it involves the same parties as a prior action and if the matter could have been resolved in that prior action. The plaintiffs could have asserted their claim against the Township and Furstenau in state court. The plaintiffs did not pursue many of the claims they used as defenses against the Township’s complaint. The claims previously brought before the state court and the claims presented in this case arose from the same events. So “res judicata” precludes the plaintiffs from asserting their claims against the Township and Furstenau because these claims could have raised in a prior state action.

Next, the plaintiffs argued that the district court erred in dismissing their § 1983 claims against the Four Township’s Citizens’ Coalition and the Macomb County residents. The plaintiffs cannot maintain these claims against these defendants, however, because they are not state actors. Also, the plaintiffs did not appeal the dismissal of their § 1985(3) or § 1986 claims against these defendants. Therefore they waived these claims. The plaintiffs do appeal the dismissal of their state-law claims, but they failed to develop their argument against the dismissal. So the plaintiffs waived these claims as well.

Finally, the plaintiffs argued that the district court erred in dismissing their defamation and civil-conspiracy claims against the Department and MDEQ employees. In regards to the defamation claim, “the plaintiff must allege that the defendant made a false and defamatory statement about the plaintiff. But a qualified privilege protects the defendant from the defamation claim if the defendant had an interest or duty to make the statement to someone having a corresponding interest or duty.”  The plaintiffs alleged that the defendants made defamatory statements to state employees and to the plaintiffs’ neighbors. But these statements were made while investigating complaints about the farm. The defendants had an interest in communicating with their co-workers and the plaintiffs’ neighbors to facilitate the investigation. And the employees and neighbors had a shared interest in the investigation. So the plaintiffs did not overcome the qualified privilege, which protects the defendants from the plaintiffs’ defamation claims. Additionally, a civil-conspiracy claim cannot “exist in the air.” So the plaintiffs cannot maintain civil-conspiracy claims because there were no other claims left in this case.

The 6th Circuit Court affirmed the dismissal of the plaintiffs’ claims by the district court.

Federal courts, Procedural Issues defamation, Federal 6th Circuit, res judicata

by Kaitlin Heinen and Gary Taylor

Gregory Frandsen, et al. v. City of North Oaks
(Minnesota Court of Appeals, February 19, 2013)

The City of North Oaks enacted an ordinance (§§ 150.055-.062) in 1989 that requires permits to build swimming pools and that swimming pools be enclosed by safety fences. Michael Johnson, James Rechtiene, and Gregory Frandsen (the appellants) own swimming pools not enclosed by fences, despite their permits being contingent upon compliance with the fencing requirement.  Instead all three have automatic locking pool covers. In April 2010, the City notified the appellants that they were in violation of the fencing requirement. The appellants asked the City to consider amending the ordinance so that it would allow automatic locking covers to serve as an alternative. The City agreed to suspend enforcement and research the alternative.

After forming subcommittees to research several alternatives, reviewing information from insurance companies, and hearing from citizens at public hearings the planning commission agreed to recommend to the city council that fences be required to enclose all pools built after 1989, that the back of a home could be used as one side of the enclosure, and that locking covers not be allowed as a substitute for the fencing requirement. At a December 2010 meeting, the city council voted in favor of the planning commission’s recommendation. The amended ordinance became effective in July 2011. So in April 2011, the City notified the appellants that they had until July 1 to comply with the amended ordinance. Appellants responded by bringing this suit against the City, alleging that the amended ordinance violates their equal protection rights and that the amended ordinance is arbitrary and capricious. The district court denied their appeal, so the appellants appealed to the Minnesota Court of Appeals.

The Minnesota Court of Appeals’ duty is to determine “whether the district court properly applied the law and whether there are genuine issues of material fact that preclude summary judgment.” The district court referred to the ordinance as one that “promote[s] the health, safety and general welfare of [the city’s] residents.” The Minnesota Court of Appeals agreed that the ordinance is a general safety ordinance.

By exempting pre-1989 pools from the ordinance, the appellants argued that their equal protection rights were violated. They argued that there is no rational reason for this exclusion when the purpose of the ordinance is to keep children from harm: “[W]hatever danger to children exists with respect to pools built after the effective date of the ordinance also exists with respect to pools built before the effective date of the ordinance.” Since the City’s pool safety-fence ordinance became effective in May 1989, building permits of pools prior to May 1989 were not conditioned to comply with this ordinance. But the appellants’ building permits were conditioned to comply with this ordinance because their pools were built after 1989. Therefore the appellants are not similarly situated to homeowners who built pools prior to 1989. In addition, “the practice of grandfathering non-conforming properties has been upheld in the face of equal-protection challenges since at least 1914.” The appellants failed to explain why grand-fathering is rational with respect to zoning ordinances, but irrational with respect to a general welfare ordinance, so the Minnesota Court of Appeals ruled that it was not a violation of equal protection for the City to treat its residents differently with respect to the law effective when their pools were built.

The appellants also argued, without explanation, that the amended ordinance was arbitrary and capricious because it allowed a wall of a building to serve as one side of the enclosure, which they argued increased the risk of harm to children. The appellants cited a unidentified report from “US Public Safety Commission” that supported the conclusion that a house should never be considered part of the fence. But the court could not verify the existence of a “US Public Safety Commission.” To the contrary, the U.S. Consumer Product Safety Commission report considered by the planning commission stated that “when a door opens directly onto the pool area, ‘the wall of the house is an important part of the pool barrier.’” Amending an ordinance is a legislative power in which the municipality has discretion as long as there is a rational basis for its decision. The court held that the City’s decision is rational because it is directly related to promoting prevention of trespassing children gaining access to pools. The City’s decision is not arbitrary as long as one valid reason exists.

Finally, the appellants contested the City’s decision to not allow pool covers as an alternative to the fence requirement. They pointed to evidence that showed that a pool cover is a safe and viable alternative to a fence. This evidence does not mandate that the City to allow pool covers as an alternative, however. The City researched the issue for more than six months and considered numerous resources before reaching a decision. The City expressed concern for pool covers’ susceptibility to mechanical failures, human errors, and enforcement issues. The decision to require fences and not allow locking covers as substitutes is a rational decision.

The Minnesota Court of Appeals affirmed the district court’s decision to deny the appellants’ claims.

Equal Protection claims, Minnesota courts, Non-Conforming Uses Equal Protection, Minnesota Court of Appeals, nonconforming uses, pools, rational basis

by Gary Taylor

This article originally appeared in the Legal Briefs section of the May “The Iowa County” magazine.

Iowa Code 335.2 states that county zoning cannot be enforced against “land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.” This agricultural exemption has been the subject of court cases throughout the years focusing on what constitutes a “use for agricultural purposes.”  Despite the lessons provided by these cases, county officials still wrestle with many unanswered questions about the interpretation of section 335.2. One of the most vexing issues has been rural acreages and large-lot rural subdivisions.  Is the owner of a five-acre residence who has a job in the nearby city qualified for the exemption if he raises an acre or two of crops or a few head of livestock?

On March 29 the Iowa Supreme Court decided Lang v. Linn County Board of Adjustment, in which the Court reviewed two separate decisions by the county to deny exemptions for two separate parcels: a 6.52-acre parcel that included the Langs’ residence, and a 43.3-acre parcel with 2 houses.  While the case does not definitively answer the exemption question for every rural acreage, it does provide several helpful guidelines for county officials going forward.

The Court began by pointing out the differences between the language of section 335.2 as it appears today, and as it was prior to amendments made in 1963.  The differences were critical to the Court’s reasoning.  Prior to 1963 the statute was concerned with land, farm houses and buildings “which are adapted, by reason of nature and area, for use for agricultural purposes as a primary means of livelihood, while so used.” Thus, prior to 1963 the statute did not contain the word “primarily,” (“primarily adapted”) but did tie the exemption to use for agricultural purposes “as a primary means of livelihood” for the landowner.

In the Court’s view, the addition of the word “primarily” allows county zoning authorities to consider “the relative size, value, and construction date of the house compared to the scope, value, and duration of the claimed agricultural activities,” and deny the exemption when the agricultural activities “are basically a sideline designed to obtain an agricultural zoning exemption for the owners’ residence.”  For the Langs’ residence on 6.52-acres, the Court determined that it was a “a residential tail wagging a farmland dog and that the property as a whole was not primarily dedicated to agriculture.” Although the Langs claimed in their exemption filing to be producing trees, raspberries, blackberries, asparagus, apples, grapes, and tomatoes, they provided no records of production or sales. Photographs indicated that the asparagus, grape vines and raspberry bushes, at least, were wild and in a wooded thicket. The Court did not believe that “the legislature intended to allow a homeowner to avoid county zoning requirements simply by having a tomato patch in his or her backyard.”

The Langs also claimed that the county improperly applied a minimum acreage test and flunked the Langs’ 6.52-acre parcel simply because it was too small.  Previous cases have held that a county cannot use parcel size as the sole measure for determining whether a parcel is primarily adapted for agriculture; however, in Lang the Court affirmed that parcel size can be one of the factors considered when making the determination, stating that “if size were not relevant, then nothing could prevent a developer from obtaining a zoning exemption for an entire development subdivided into half-acre lots so long as some agricultural product were planted in the development and tended by the homeowners.”

Because the Linn County Zoning Ordinance prohibits more than one dwelling on a single undivided parcel of land, the Langs sought an exemption for a second house built on a 43.3-acre tract, claiming that the occupant (the Langs’ son) would be performing farming tasks on the property.  The county did not dispute that the 43.3 acres should be considered agricultural, but disagreed that the second house was “primarily adapted” for agriculture since the son had a regular day job, and that he would be spending only 2 1/2-hours per day at most on farming activities.  The Court sided with the county, stating that “it is appropriate for the county to ask how much time the tenants of the house spend on farming activities. Otherwise, a farmer could erect multiple homes and avoid county zoning simply by assigning nominal farm tasks to an occupant of each home.” Implicit in the Court’s reasoning is that although a landowner no longer must show that the property is his “primary means of livelihood,” the landowner must be able to closely tie the activities of the person occupying the house to the agricultural production taking place on the property.

The Court concluded with a common-sense observation of how misapplying the exemption to rural acreages has the potential to cause problems in the future: “When a house has been erected by taking advantage of an agricultural exemption, but then is later sold to a person who is not engaged in agriculture, the house becomes a nonconforming use, which limits the new owner’s ability to modify or, if necessary, to rebuild the house.”

Agricultural Uses/Agricultural Exemption, Commentary, Iowa Supreme Court

by Gary Taylor

City of Okoboji v. Leo Parks and Okoboji Barz, Inc.
(Iowa Supreme Court, April 26, 2013)

If you have attended one of my workshops you know that this ongoing dispute is one of my favorite discussion topics.  This is another case in the the efforts of the City of Okoboji to enforce zoning restrictions on properties owned by Okoboji Barz (Okoboji Boat Works, The Fish House Lounge, and Clucker’s Broasted Chicken), all located on the shore of West Lake Okoboji. The lakefront property is zoned residential, but has been historically operated as a marina pursuant to special-use permits allowing the preexisting nonconforming uses. In a series of previous cases (City of Okoboji v. Okoboji Barz, Inc., 717 N.W.2d 310, 315–16 (Iowa 2006);  City of Okoboji v. Iowa District Court, 744 N.W.2d 327, 332 (Iowa 2008)) the Iowa Supreme Court has held that while the use of the property as a marina is lawful under the special-use permits, the permits do not allow an expansion of the use to include on-premises consumption of alcohol with live entertainment, karaoke, hog roasts, and full-moon parties.

“Undeterred” (in the words of the Supreme Court), “the owner of the property sought to operate a bar on a structure called the Fish House Lounge, which, while generally moored to the marina’s ‘seawall,’ is capable of getting underway on the lake.” The Fish House Lounge has a class “D” liquor license obtained from the state, and not the City, based upon the state’s control of the lake bed. The City objected to the operation of the Fish House Lounge as contrary to the holdings of the Supreme in the previously-cited cases and sought declaratory and injunctive relief. The district court found that the Fish House Lounge cannot cruise the lake during winter months, has no regular cruise schedule, and is rarely seen cruising the lake. Patrons are asked to use the restroom facilities on the marina property. It offers live and recorded entertainment, hosts theme parties, karaoke, and other activities as late as midnight.  The district court concluded that the activities at the Fish House Lounge were the very activities prohibited by the Supreme Court in the previous cases, and entered an injunction prohibiting use of the marina property to “provide parking, access to or from, and supporting services, including bathroom facilities, to patrons of a boat, vessel, or structure on which alcohol is served or upon which entertainment, music, karaoke, abandon-ship parties, or howl-at-the-moon parties are provided.’ The injunction further prohibited the selling or serving of alcohol, wine, and beer on any boat or structure moored to or attached to the marina and on or from any boat or structure attached to a dock extending from the premises.  The property owner appealed.

The broad question before the Supreme Court was “whether our prior rulings can be avoided by moving the locus of prohibited activity onto a floating pontoon structure that is located above the state-owned lake bed and outside the geographic boundaries of the City, but which utilizes the upland marina property for ingress, egress, parking, and restroom facilities.” The property owner argued several points.  First, that the City cannot exercise its zoning authority over the Fish House Lounge because the Lounge is floating over the lake bed when it is moored to the marina’s seawall, and that this could only lead to one of two results: (1) The state owns the lake bed in its sovereign capacity, and under various statutes other state agencies – and not the City – are responsible for lake bed activities, or (2) the boundary line of the City is the mean high water mark of the lake, which the Fish House Lounge sits below when moored to the marina. Second, that the Fish House Lounge activities were merely accessory to the permitted use of operating a marina.

The Supreme Court dispensed with all of these arguments.  Contrary to the owner’s arguments, the City did not claim the authority to zone over the lake bed; rather, it was asserting jurisdiction only over the upland real property, and the use of the real property for ingress and egress to the Fish House Lounge, to provide parking for patrons of the Fish House Lounge, and to provide restroom facilities for patrons of the Fish House Lounge is inconsistent with the preexisting nonconforming use of the property for marina operations.  In the 2006 case the Court held that activities similar to those conducted at the Fish House Lounge could not be considered “merely an accessory use to the operation of the marina.”

Prior to 1972 [when zoning was enacted], the property was used for operating marinas. The marinas were open between 8:00 a.m. and 5:00 p.m., with the gas dock occasionally staffed until 8:00 p.m. As the district court noted, there was no evidence that, prior to 1972 when the City enacted its zoning ordinance, the property was used to provide nearly permanent mooring for a liquor establishment, to provide restroom facilities for patrons of such an establishment, or to provide parking for such use. Since 2008, however, the marina property has been providing access to a floating bar that stays open at night…. While it is true that the main platform upon which liquor is sold and loud activities occur is above the lake bed, it is obvious the activities of the Fish House Lounge are inextricably intertwined with the use of the real property subject to the City’s zoning restrictions. The use of the property for ingress and egress, for restroom facilities, and for parking to a floating bar moored at the marina are not accessory uses to the valid, nonconforming use of the marina. These uses of the upland real estate are also in violation of section 2(B)(2) of article VII of the City’s zoning ordinance, which prohibits such lakeshore lots from being used for access to commercial activities.

The Supreme Court agreed that an injunction was appropriate to prevent the use of the marina to support the activities of the Fish House Lounge.  Providing access, parking, and restroom facilities has had an adverse impact on the residential character of the waterfront.  The Supreme Court refused to enjoin the the provision of or sale of liquor on boats when moored at the docks (versus those moored directly to the shoreline); noting, however, that “this distinction makes little difference as the City has shown entitlement to an injunction that prohibits using the upland to provide ingress, egress, parking, or restroom facilities to patrons of boats or similar vessels selling alcohol or engaging in bar-type activities while docked at the marina.”

Iowa Supreme Court, Non-Conforming Uses Iowa Supreme Court, nonconforming uses, Okoboji Barz