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

July 31st, 2014

by Rachel Greifenkamp

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

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

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

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

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

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

 

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

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

July 24th, 2014

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

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

 

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

July 22nd, 2014

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

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

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

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

July 21st, 2014

by Rachel Greifenkamp

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

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

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

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

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

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

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

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

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

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

July 17th, 2014

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

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

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

July 14th, 2014

by Rachel Greifenkamp

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

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

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

Plats, public roads and highways, Wisconsin courts , ,

US Supreme Court strikes down buffer zones around MA abortion clinics

July 1st, 2014

by Gary Taylor

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

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

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

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

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

 

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

News from around Minnesota: Brainerd OKs small homes

June 20th, 2014

Following up with the latest news on my May 13 post, the Brainerd city council has given the green light to 500 square foot homes on lots that would otherwise be unbuildable under current zoning regulations.  The original plan recommended by the planning commission called for houses as small as 400 square feet. Bumping the limit up to 500 square feet now gives Brainerd the same minimum house size as Minneapolis, where houses can be as small as 500 square feet and 350-square-foot efficiency apartments are legal.

According to the article: “Tiny home builders would also have to secure a special permit from the city.”  Does this mean that average-sized contractors – probably 5’10″ or so -  can operate as-of-right? Isn’t that discriminatory?

current news , ,

Iowa cities may shift tort liability for unsafe sidewalks to abutting property owners

June 19th, 2014

by Gary Taylor

Madden v. City of Iowa City and State of Iowa
(Iowa Supreme Court, June 13, 2014)

Beth Madden was riding her bike on a sidewalk abutting the University of Iowa when she lost control, crashed, and sustained injuries.  She sued the city claiming that the city owned or had control over the sidewalk, a defect in the sidewalk caused the accident, and the city was negligent in failing to prevent or remedy the defect or failed to exercise reasonable care in maintaining the sidewalk.  The city brought the university (the state of Iowa) in as a third party, citing a city ordinance that requires abutting property owners to maintain sidewalks in safe condition.  The university disputed its liability, which gave rise to this case.

In Iowa, the courts have long followed the common law rule that an abutting property owner is not liable in tort for injuries arising from defects in adjacent sidewalks, and that statutes requiring abutting landowners to engage in maintenance such as snow and ice removal do not give rise to such liability.  Iowa Code 364.12(2) provides:

A city shall keep all …sidewalks…in repair, and free from nuisance, with the following exceptions
b.  The abutting property owner is responsible for the removal of  the natural accumulations of snow and ice from the sidewalks within a reasonable amount of time and may be liable for damages caused by the failure of the abutting property owner to use reasonable care in the removal of the snow or ice….
c.  The abutting property owner may be required by ordinance to maintain all property outside the lot and property lines and inside the curb lines upon the public streets….
The Iowa Supreme Court found that Iowa Code 364.12(2)(c) does not give rise to a private cause of action against an abutting property owner for injuries resulting from a sidewalk defect.  The court pointed out that the statute expressly authorizes a damages action in subsection (b) for failure to remove snow and ice, but that such language is conspicuously absent in subsection (c).
Preemption. This, however, did not end the legal dispute.  The city’s ordinance provides that “the abutting property owner shall maintain the sidewalk in a safe condition, in a state of good repair, and free from defects,” and further that the abutting property owner “may be liable for damages caused by failure to maintain the sidewalk.”  The university asserted that the city did not have the authority under state law to impose liability on an abutting property owner, or enact an ordinance that would result in a waiver of the state’s sovereign immunity in tort claims such as this one.  The city argued that under home rule it has the authority to impose liability on abutting property owners, regardless of the state statute.
The Supreme Court viewed the issue as one of preemption; specifically, whether state law “impliedly preempts” local regulation on the subject.  In order to give rise to implied preemption, the local ordinance must be “irreconcilable” with state law.  Courts will work to “interpret the state law in such a manner as to render it harmonious with the ordinance.”  The court noted that section (c) is silent on the issue of liability, but that “legislative silence [should not be] interpreted as a prohibition of local action in light of our obligation to harmonize and reconcile a statute with an ordinance whenever possible….We therefore conclude that when an ordinance or statute validly imposes a maintenance obligation and also imposes liability on the abutting landowner, the city is entitled to indemnification from the abutting landowner for any damages arising out of its failure to maintain the sidewalk.”  An ordinance that creates such as scheme is not preempted by Iowa Code 364.12.
Illegal tax. For its second line of defense, the university asserted that the attempt to transfer liability to the state amounted to levying a tax not authorized by statute.  The court disagreed.  A “tax” is a general revenue measure without benefits conferred.  In this case, no funds go into the city’s coffers for general purposes, and taxpayers are not being charged for services that have no benefit to them.  the ordinance is a police powers regulation that cannot be “shoehorned into our taxation doctrine.”
Sovereign immunity.  Finally, the university argued that state immunity from liability under the Iowa Tort Claims Act (ITCA) was not waived in this case, either by operation of statute or under common law.  The court also rejected this argument, noting that the ITCA has been interpreted as establishing a “general waiver of sovereign immunity” subject to the exceptions delineated in the act, none of which apply in this case.  The purpose of the waiver of immunity is to allow the state to be sued “under circumstances where the state, if a private person, would be liable to the claimant for such damage, loss, injury, or death.”
For these reasons, the Iowa Supreme Court ruled that the university should remain a party to the lawsuit.
Justices Mansfield and Waterman dissented.  They read Iowa City’s ordinance as an effort to alter the statutory division of responsibility between city and property owner. “Simply stated, the city wants the property owner to do more to maintain city-owned sidewalks, so that the city may do less.”  They believe that the city ordinance clearly conflicts with Iowa Code 364.12, which they read as containing “an express legislative determination that the city should be responsible for sidewalk maintenance subject only to a particularized right to shift costs of repair to the adjoining property owner in certain circumstances.”

Iowa Supreme Court, Sidewalks , ,

Clean Air Act, state emissions regulations do not preempt private nuisance or trespass claims

June 17th, 2014

by Gary Taylor

Laurie Freeman, et al v. Grain Processing Corporation
(Iowa Supreme Court, June 13, 2014)

Grain Processing Corporation (GPC) conducts corn wet milling operations at its facility in Muscatine.  Laurie Freeman and seven other named plaintiffs – representing a class identified as “all Muscatine residents who have resided…within 1.5 miles of the perimeter of [GPC's] facility” – allege that GPC’s operations create hazardous by-products and harmful chemicals which are released directly into the atmosphere.  The pollutants include sulfur dioxide, hydrochloric acid, particulate matter, and volatile organic compounds including acetaldehyde.  They assert that particulate matter is visible on nearby properties and that the emissions cause persistent irritations and discomforts and put them at risk for serious health effects.  They brought claims for nuisance, negligence and trespass against GPC.  GPC countered by filing for summary judgment, claiming that (1) the federal Clean Air Act (CAA) preempts the plaintiffs’ state law claims, (2) Iowa Code Chapter 455B – which regulates emissions – preempts the plaintiffs’ claims, and (3) a lawsuit impacting facility emissions lacks judicially discoverable standards for resolving the issues.  The district court sided with GPC and plaintiffs appealed.  The portions of the Iowa Supreme Court decision addressing (1) and (2) will be reviewed here.

Clean Air Act preemption. In a 63-page opinion that included a history lesson on the origins of present day environmental law, the Iowa Supreme Court acknowledged that “the Environmental Protection Agency has created a vast regulatory structure to control the emission of air pollutants, including technological standards, health standards, risk levels, and enforcement provisions, completely transforming what was once the province of state law.” The court also recognized, however, that there are differences between common law remedies such as nuisance and trespass, and regulatory regimes such as the CAA and chapter 455B.  While regulatory regimes focus on the prevention of pollution through emissions standards designed to protect the general public, “the common law focuses on special harms to property owners caused by pollution at a specific location.”  The Iowa Supreme Court noted that the United States Supreme Court is reluctant to find that a federal law preempts state law in areas where states have traditionally exercised their police power.  Congress has the power to preempt local law and can expressly do so, but did not in the CAA.  To suggest that Congress indirectly removed state law claims such as nuisance and trespass “seems…rather unlikely,” and the Iowa Supreme Court declined to interpret the CAA in that way.  “The purpose of state nuisance and common law actions is to protect the use and enjoyment of specific property, not to achieve a general regulatory purpose….We decline to conclude that the increased complexity of the CAA has categorically elbowed out a role for the state nuisance and common law claims presented here.”

Iowa Code Chapter 455B. The court began by noting that “the legislature is presumed to know the existing state of the law when a new statute is enacted.  In the absence of any express repeal, the new provision is presumed to accord with the legislative policy embodied in prior statutes.”  While there are no definitive Iowa cases addressing the question of whether nuisance claims may go forward in light of Chapter 455B, the court did find instructive cases that have found that a lawful business, properly conducted, may still constitute a nuisance, even if in compliance with state regulations.  “We do not see enforcement of nuisance and other common law torts as inconsistent with the regulatory framework of chapter 455B.”  Nuisance claims are based on specific harms to the use and enjoyment of real property, while air pollution regulations are enacted to protect the public interest.

The Iowa Supreme Court reversed the district court’s summary judgment, allowing the case to proceed to trial.

Iowa Supreme Court, Nuisance, Preemption, Trespass , , , ,