Bass Pro Shops creates border war in Georgia

November 24th, 2015

by Hannah Dankbar and Gary Taylor

Kemp v Monroe County
Georgia Supreme Court, November 5, 2015

At issue is the current boundary between Bibb County and Monroe County, Georgia.  Not coincidentally, the final determination of the boundary line will determine which county is entitled to the roughly $1.3 million in tax revenue generated by a Bass Pro Shops retail store and nearby homes. Monroe County supports a survey that puts the line a few hundred feet south of where Bibb thinks it is.

The dispute over the county boundary line began in 2005. The Governor sent a land surveyor to identify the boundary line according to state statute. The survey took place in 2008 and in 2009 the final report was submitted to Georgia’s Secretary of State per state statute. Bibb County filed exceptions to the survey (which would have put Bass Pro Shops in Monroe County) and Monroe County defended the survey. The Secretary of State assigned the hearing to the Special Assistant Administrative Law Judge in 2011, who accepted the survey. The Secretary of State then held oral arguments of his own and visited the site.  The Secretary chose to reject the survey, which left the boundary line undetermined.

Monroe County petitioned for mandamus, which the trial court granted  The trial court directed the Secretary to accept the survey and establish the boundary. The Secretary and Bibb County appealed asking: (1) whether the actions of an official under OCGA §36-3-20 et seq. may be subject to a writ of mandamus; and (2) if the mandamus is permissible, whether the Court erred in granting the mandamus petition and ordering the Secretary to record the survey.  During this time the Secretary informed all parties of his intent to hold a separate hearing and accept new evidence. Monroe County objected and the trial court ordered the Secretary to not hold the hearing, calling it a “gross abuse of discretion.”

The Supreme Court reversed the decision of the trial court. Counties do not have a right to a “particular process by which the Secretary is to receive evidence and reach a decision, as these matters fall within the Secretary’s discretion.” A court cannot “preclude the Secretary from allowing the record to be reopened and new evidence developed.” There is no statute constraining the Secretary of State to a particular process, including re-opening evidence. The trial court’s conclusion that it is unfair to hold an additional hearing presents a question for the legislature, not the court. The court is only allowed to determine if the Secretary’s actions are arbitrary or capricious; no such finding was made.

The trial court’s order was reversed and remanded. If either party wants to challenge the Secretary’s final decision they must show that the Secretary acted arbitrarily and capriciously or grossly abused his discretion.

Georgia courts, Uncategorized ,

Spring 2016 Intro to Planning and Zoning workshop dates and locations

November 23rd, 2015

Here are the dates and locations for the Spring 2016 Introduction to Planning and Zoning workshops:

Monday, March 21 – Okoboji – Arrowwood Resort, 1405 Highway 71

Tuesday, March 22 – Clear Lake – Best Western Holiday Lodge, 2023 7th Ave North

Tuesday, April 5 – Decorah – Hotel Winneshiek, 104 East Water Street

Wednesday, April 6 – Cedar Rapids – Clarion Hotel & Convention Center, 525 33rd Ave. SW

Monday, April 11 – Sioux City – Bev’s on the River, 1110 Larsen Park Road

Tuesday, April 19 – Creston – Supertel Inn & Conference Center, 800 Laurel Street

The link to the on-line registration page will be provided here in January.

Education/Conferences , ,

Value of railroad corridor for just compensation purposes must include remnants of railroad’s use

November 16th, 2015

by Hannah Dankbar and Gary Taylor

Rasmuson, et al v. United States
U.S. Court of Appeals for the Federal Circuit, October 5, 2015

Rasmuson and others own land adjacent to three railway corridors in Central Iowa. Pursuant to the National Trail System Act Amendments of 1982, the Surface Transportation Board issued Notices of Interim Trail Use (NITUs) for the corridors. NITUs “preserve established railroad rights-of-ways for future reactivation of rail service” and permit the railroad operator to cease operation without abandoning any “rights-of-way for railroad purposes.” The trial court found that “but for issuance of the NITUs, under Iowa law the railway easements would have reverted back to plaintiff adjacent landowners upon cessation of railroad operations, and plaintiffs would have enjoyed land unencumbered by any easement.”  The trial court thus found that a taking occurred, then held a bench trial to determine just compensation.  The trial court determined just compensation to be the value of the land as raw land (without any of the railroad’s improvements), and the United States appealed.

A landowner subject to a taking is entitled “to be put in as good a position … as if his property had not been taken.” In the case of an easement, the conventional method of valuation is the difference between the value of the property before and after the government’s easement was imposed.  The issue before the Court was a narrow one: Whether, as the government argued, the “before” condition was the property with the physical remnants of the railway’s use (with tracks, ties, earthen embankments, poor soil conditions) or, as the plaintiffs argued, without such physical remnants (raw land pre-railroad development).

The Court concluded that the fair market value of the land “before” the taking was the value including the physical remains of the railway.  The “before” condition was the property “before” the issuance of the NITUs.  Without the NITUs the land would have returned to the landowners with the physical remains of the railway since the railroad was under no legal obligation to remove the physical remnants of railroad use, and no evidence was introduced that the railroad would have done so on its own.  An appraisal of the land to determine just compensation must therefore take into account the remnants of the railway.

The trial court’s decision was vacated and remanded.

Federal courts, Takings , ,

Comprehensive plan amendments met Idaho statutory requirement for an “analysis” of power plant and utility locations

November 12th, 2015

by Andrea Vaage and Gary Taylor

Burlile v. Payette Board of County Commissioners
Idaho Supreme Court, September 25, 2015

Alternate Energy Holdings Inc. (AEHI) became interested in constructing a nuclear power plant in Payette County, Idaho in 2009. The property the company was targeting was zoned agricultural. AEHI petitioned the County to revise the comprehensive plan so that the property could be zoned industrial. AEHI also submitted a Rezone and Development Agreement Application to the Payette County Planning and Zoning Commission. The County accepted the petition to amend the comprehensive plan and included additional language relating to energy producers looking to site facilities in the County. After the development agreement was made public in various forms, the County held a public hearing in December 2010 before the Planning and Zoning Commission (PZC), during which the PZC recommended approval of the application for the nuclear power plant.

A neighboring landowner, H-Hook, and others appealed the decision to the Board of Commissioners (Board). A revision to the development agreement was made public and the Board received additional testimony from the public. In August 2011, the Board approved the decision of the PZC to approve the development application. H-Hook and other parties sought judicial review. H-Hook argued that (1) the comprehensive plan was invalid because it is missing components addressing power plant siting and power transmission corridors as required by Idaho Code section 67-6508; (2) the rezone was illegal spot zoning; and (3) the notice and hearing procedures employed by the County were in violation of due process. The district court rejected all arguments. H-Hook appealed.

Invalid Comprehensive Plan.  H-Hook argued the comprehensive plan was not valid because it did not include sufficient language regarding siting of a nuclear power plant. Idaho Code 67-6508(h) requires a comprehensive plan include “an analysis showing general plans for sewage, drainage, power plant sites, utility transmission corridors…”  H-Hook focused on the requirement for an “analysis” and argued that the comprehensive plan should contain a certain measure of detailed consideration of the subject. The Court, however, found that the requirement of a “general” plan diminishes the degree of required “analysis.” Reading the “plain, obvious, and rational meaning” of the terms “general” and “analysis,” the Court concluded that the comprehensive plan, as amended, met Idaho Code 67-6508(h).  It found that more detailed language would be difficult for a county to adopt and implement, due to the complicated and changing nature of energy facilities.

Illegal Spot Zoning.  H-Hook argued that the rezone from agricultural to industrial was an impermissible “type one” spot zoning.  Citing prior caselaw, the Court stated that a claim of “type one” spot zoning “is essentially an argument that the change in zoning is not in accord with the comprehensive plan.”  The Court determined that the claim of “type one” spot zoning failed because the amendment to the comprehensive plan designated the property as Industrial prior to the rezoning to Industrial.

“Type two” spot zoning in Idaho occurs when a parcel is singled out for treatment different from the uses permitted in the rest of the zoning district for the benefit of an individual property owner.  The Court disagreed.  The Board concluded that the industrial use designation “encompasses existing industrial operations, such as CAFOs and the Clay Peak Landfill” within a few hundred feet of the site in question.  The Board’s factual determination is entitled to deference when supported by substantial and competent evidence, and the Court determined that this standard was met.

Due Process Violation.  H-Hook argued that it was not given adequate time to review revisions to the development agreement; however, the County made the application available to the public in physical form and on a website well before the hearing before the PZC in December 2010. The application with revisions was made public eight days before the hearing. When the issue went before the Board, the County provided a color-coded version of the revision to the public eleven days before that meeting. These efforts gave H-Hook adequate time to review the development agreement.  No due process violation occurred.

The decision of the district court was affirmed.

Comprehensive Plan, Due Process, Idaho courts, Spot Zoning , , ,

Co op days shy of being able to claim adverse possession

November 9th, 2015

by Andrea Vaage and Gary Taylor

Quality Ag Service of Iowa Inc. v. Burlington Northern Santa Fe Railway
Federal 8th Circuit Court of Appeals, October 30, 2015

At issue is the ownership of a sidetrack adjacent to two Burlington Northern Santa Fe Railway (BNSF) tracks running through Melrose, Iowa. Quality Ag of Iowa purchased land on August 25, 2000 from Farmers Coop, which purchased land from BNSF in 1994.  The sale did not include the sidetrack adjacent to the purchased parcel; however, Quality Ag has used the sidetrack to receive fertilizer shipments since 2000. On August 3, 2010, one of BNSF’s trains derailed east of the sidetrack. BNSF used the sidetrack to store equipment after the derailment, preventing Quality Ag from using the sidetrack for fertilizer shipments. Instead, Quality Ag was forced to truck fertilizer in at increased expense.  Quality Ag sued BNSF for damages due to the increased cost of delivery, and property damages resulting from the derailment.  The claim was dismissed and an appeal ensued.

Quality Ag’s owner testified that he believed the sidetrack was part of the land purchased from Farmers Coop because a Farmers Coop representative told him that it did at the time of the sale. He also testified that BNSF entered into a written agreement with Quality Ag that BNSF could use the sidetrack if BNSF maintained it; however, the owner was unable to produce this agreement for trial. Conversely, BNSF was able to produce a land survey showing they owned the sidetrack. On appeal, Quality Ag raised the claim that it owns the sidetrack due to adverse possession.

In order to prove a claim of adverse possession a party must “establish hostile, actual, open, exclusive and continuous possession, under a claim of right or color of title, for at least a ten year period.” Quality Ag would need to establish that it met those conditions from August 25, 2000 to August 25, 2010. Since BNSF used the track for equipment storage on August 3, 2010 and beyond, after the derailment, Ag Services failed to show continuous sole use for a full ten year period.  The maintenance agreement claim also failed because Quality Ag was unable to produce the maintenance agreement or othershow it owned the sidetrack.

The decision of the district court was affirmed.


Federal courts, Property law , ,

News from around Minnesota: Islamic group alleges RLUIPA violation in denial of conditional use permit for cemetery

November 4th, 2015

Castle Rock Township, in Dakota County Minnesota (a portion of St. Paul, and south) rejected an application submitted by the original property owner, and a subsequent owner, for a proposed Islamic cemetery to be located in the Township. The Minnesota chapter of the Council on American-Islamic Relations (CAIR-MN) has asked the US Department of Justice to investigate whether the township acted with an anti-Muslim bias in rejecting the application; specifically, whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) was violated when the Castle Rock Township Board rejected the application for a conditional use permit after the Planning Commission had recommended that the board approve it. At the time the application was filed cemeteries were allowed as conditional uses in the zoning district where the land is located. After the denial, however, the Castle Rock Township Board changed the zoning ordinance so that cemeteries were no longer a permissible use in that district.  More on the story from the Minneapolis Star Tribune here.

current news, RLUIPA ,

News from around Minnesota: St. Cloud MN rezones land for solar garden

November 3rd, 2015

The St. Cloud City Council recently voted to rezone land to create a place for a solar garden.  Solar gardens are essentially tracts of land on which solar panels are built. The panels are then connected to the power grid. Garden “subscribers” buy into the project and receive a credit on their electric bill.

Minnesota passed a law in 2013 that requires utilities to get at least 1.5 percent of their electricity from solar by 2020.  The law has put Minnesota on the front lines of solar garden development nationwide.

A good article on solar gardens and the zoning issues associated with them is here.

current news, Renewable energy , ,

Links to law presentations from 2015 APA-Iowa Annual Conference

November 2nd, 2015

The powerpoint presentations from the 2015 APA-Iowa Annual Conference held in Sioux City on October 14-16 are now available here.

Thursday afternoon session on Signs and Cell Towers, by Peter McNally, Dustin Miller and Gary Taylor

Iowa APA 2015 Cell Towers
Iowa APA 2015 Signs

Friday morning AICP Law session by Gary Taylor

Iowa APA 2015 Law session

cell towers, Education/Conferences, Federal courts, Federal legislation, Iowa Court of Appeals, Iowa legislation, Iowa Supreme Court, Signs and billboards , , , , , ,

Weeds are not protected speech or expression

October 29th, 2015

by Hannah Dankbar

Discount Inn, Inc. v. City of Chicago
Federal 7th Circuit Court of Appeals, September 28, 2015

(Note that the Court included photos of native Illinois plants in its written opinion; a very unusual practice)

Chicago’s Department of Administrative Hearings decided that Discount Inn, Inc. violated the weed and fence ordinances.  The weed ordinance reads:

Any person who owns or controls property within the city must cut or other‐ wise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200. Each day that such violation continues shall be considered a separate offense to which a separate fine shall apply.

The fence ordinance reads:

It shall be the duty of the owner of any open lot located within the City of Chicago to cause the lot to be surrounded with a noncombustible screen fence …. Provided, however, that this section shall not apply to … sideyards. The owner shall maintain any such fence in a safe condition without tears, breaks, rust, splinters or dangerous protuberances and in a manner that does not endanger or threaten to endanger vehicular traffic by obstructing the view of drivers. Any fence which is not maintained in accordance with these provisions is hereby declared to be a public nuisance and shall be removed … . It shall be the duty of the owner of any lot whose fence has been so removed to replace such fence with a noncombustible screen fence meeting the requirements of this section and of this Code.” Municipal Code of Chicago § 7‐28‐750(a). Violators “shall be fined not less than $300 nor more than $600 for each offense,” and “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.

Discount Inn made two claims: (1) the ordinances violate the prohibition against “excessive fines” in the Eight Amendment; and (2) the weed ordinance is vague and forbids expressive activity protected by the First Amendment.

In regards to the first claim, the Supreme Court has not decided whether this clause applies to state action. This court assumes that it does apply, but found that the fines are not excessive. The fines for both ordinances enforce a legitimate government interest. Fencing vacant lots are important for identifying abandoned lots. The City has an interest in controlling weeds because uncontrolled weeds lead to problems such as obscuring debris, providing habitat to rodents and mosquitos, and contributing to breathing problems.

Regarding the second claim, Discount Inn argued that native plants are mistaken for weeds and their use is unnecessarily limited because of the ordinance. There is no clear definition of a weed in the city code. Discount Inn does not argue that they have native or other decorative plants, but simply rather that the ten-inch rule violates the free-speech clause of the First Amendment. It is true that the First Amendment protects some non-spoken work, such as paintings; however, the Court concluded that these weeds have no expressive value. The owner did nothing to cultivate or design the weeds.

Discount Inn also argues that the ordinances are unconstitutional because they do not specify a statute of limitations. There is no rule that there must be a statute of limitations. Prescribing a statute of limitations for a weed ordinance would require an insane use of city resources.

The decision was upheld.

Federal courts, First Amendment claims, Nuisance , , , ,

Minnesota Environmental Protection Act requires EIS prior to issuance of certificate of need for oil pipeline

October 15th, 2015

In the Matter of the Application of North Dakota Pipeline Company LLC for a Certificate and Permit for the Sandpiper Pipeline Project in Minnesota
Minnesota Court of Appeals, September 14, 2015

Friends of the Headwaters (FOH) challenged a decision by the Minnesota Public Utilities Commission (MPUC) to move forward on a final decision on a certificate of need for an oil pipeline by arguing that this violates Minnesota’s Environmental Protection Act (MEPA).

In 2013 North Dakota Pipeline Company LLAC (NDPC) applied for a certificate of need and a pipeline routing permit to connect oil pipelines in North Dakota to other pipelines in Minnesota and Wisconsin. In early 2014 MPUC approved the permits and allowed hearings and environmental review to move forward.

The Energy Environmental Review and Analysis unit (EERA) gathered 53 route alternatives and one system alternative through public outreach that were accepted by MPUC. Route alternatives are defined as, “a deviation from the [NDPC’s] proposed project with no apparent major engineering or environmental issues.” System alternatives are defined as, “a pipeline route that is generally separate or independent of the pipeline route proposed by [NDPC], and that does not connect to the specified Project endpoints.” MPUC decided to bifurcate the certificate of need and pipeline routing permit proceedings. MPUC told EERA to do an environmental evaluation of all of the systems alternatives to be used during the certificate of need proceedings, but that this would be used to develop a record and “not be equivalent in terms of the specificity and level of detail to a comparative environmental analysis undertaken in the route permit proceeding.”

The issue at stake is whether MEPA requires an environmental impact statement before MPUC can make a final decision on a certificate of need for an oil pipeline.

All parties acknowledge that MEPA environmental review must happen at some point during the approval process, but the question is when this must happen. When certificate of need and routing permit proceeding are conducted together Chapter 7852 of Minnesota administrative rules requires applicants to do a comprehensive environmental assessment for the pipeline routing permit. The Environmental Quality Board has allowed this assessment to take the place of a formal environment impact statement. FOH argues that making a decision on the certificate of need without a formal environmental review violates MEPA.

Minn. Stat. § 116D.04, subd. 2a (2014), requires the responsible governmental unit to prepare a detailed EIS before engaging in any “major governmental action” that creates the “potential for significant environmental effects.” Subdivision 2b says that “a project may not be started and a final governmental decision may not be made to grant a permit, approve a project, or begin a project…” FOH argues that issuance a certificate of need qualifies as making a final governmental decision. The court agreed. The language of those statues is unambiguous and as applied to this situation means that when the MEPA complaint environmental review will not happen until after the certificate of need is issued, an environmental impact statement must be competed as part of the proceedings.

The Court of Appeals reversed the grant of a certificate of need and remands to the MPUC to complete an EIS before holding certificate of need proceedings.

Environmental law, Minnesota courts , ,