Welcome our guest blogger

June 22nd, 2015

So who is this Andrea Vaage who has been posting case briefs for the BLUZ?  Andrea is providing me with much needed help this summer while Hannah is on an internship.  Andrea is a Master’s student in Community and Regional Planning and Sustainable Agriculture here at ISU. She holds a degree in Environmental Science from Central College in Pella, Iowa and a certificate in Entrepreneurial and Diversified Agriculture from Marshalltown Community College. Her masters research focuses on factors influencing ordinance adoption to promote urban agriculture, and comes out of the essential part she is playing in our Leopold Center Local Foods Systems Project.  More information on the project will be appearing here as this phase of the effort wraps up in the coming weeks.

As should be obvious by now, I don’t hire just anyone to blog for the BLUZ.  Both Hannah and Andrea recently have been awarded competitive national scholarships to pursue their academic interests in the intersection of planning and sustainable agriculture.  Congratulations to both of you!

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Hearing before planning commission not a ‘contested case’ under Missouri Administrative Procedures Act

June 22nd, 2015

by Andrea Vaage

450 N. Lindbergh Legal Fund v. City of Creve Coeur, Missouri
Missouri Court of Appeals, Eastern District, June 16, 2015

Biermann Company owned a 1.98 acre tract in Creve Coeur, Missouri. The property was located in a General Commercial zoning district, which allows assisted-living facilities as a conditional use. Biermann Company applied for a conditional-use permit for an assisted-living facility for the elderly. The Planning and Zoning Commission recommended approval of the CUP after a public hearing, and the City council later approved the permit application.

Plaintiffs sought judicial review of City of Creve Coeur’s approval of the conditional-use permit as a contested case under the Missouri Administrative Procedures Act (MAPA). The trial court dismissed the petition on its merits.  The plaintiffs appealed the decision.

The threshold question before the Court was whether the case could be tried as a contested case (versus a noncontested case) under MAPA.  MAPA  defines a contested case as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” In order for a case to qualify as contested, parties must be given an opportunity for a formal hearing with the presentation of evidence, including sworn testimony and cross-examination of witnesses.  Contested cases also require written findings of fact and conclusions of law.  The hearing must be mandated by a statute or ordinance outside the MAPA.

As per rules set out in Creve Coeur City Code 405.170, the Planning and Zoning Commission held a public hearing about the conditional-use permit for the assisted-living facility. The City Code provides no procedural requirements for the hearing. The hearing for the assisted-living facility was held on the record and those who spoke were sworn in; however, no witnesses were examined or cross-examined, no objections to evidence were made, and no formal rules of evidence were followed.  Furthermore, the hearing was held for the Planning and Zoning Commission to make a recommendation to the City Council. The City Council made the final decision for the CUP application; therefore, the hearing held before the Commission did not determine the legal rights, duties, or privileges of specific parties.

The Court found that the recommendation of the Planning and Zoning Commission could not be reviewed as a contested case, and since plaintiffs sought judicial review under the sections governing contested cases it was improper for the trial court to consider the case.  As a result, the Missouri Court of Appeals reversed the case and remanded it to the trial court with instructions to dismiss the petition for review on grounds that plaintiffs failed to state claim upon which relief can be granted.

Missouri Courts, Procedural Issues , ,

US Supreme Court finds local sign ordinance an impermissible content-based restriction on speech

June 18th, 2015

by Gary Taylor

Reed v. Town of Gilbert
United States Supreme Court, June 18, 2015

Gilbert, Arizona adopted a comprehensive sign code governing outdoor signs.  It identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions.  The Sign Code generally prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs from the permitting requirement.   Three of those 23 categories were relevant to the litigation before the Supreme Court:

  • Political signs – defined as signs designed to influence the outcome of an election, may be up to 32 square feet and only displayed during an election season.
  • Ideological signs – defined as signs communicating a message or idea that do not fit in any other sign code category, may be up to 20 square feet and have no time restrictions.
  • Temporary directional signs – defined as signs directing the public to a church or other qualifying event, are limited to 6 square feet, no more than 4 may be on a single property at the same time, and may be displayed no more than 12 hours before, and 1 hour after the event.

Good News Community Church (Church) is a small congregation that meets in various temporary locations in Gilbert on Sunday mornings.  The Church posted signs early each Saturday morning bearing the Church name and the time and location of the next service.  The signs were not removed until around midday Sunday.  Gilbert cited the Church for violation of the Sign Code, for failing to abide by the time restrictions for temporary directional signs and for failing to include an event date on the signs.  The Church appealed the citation and lost, brought suit in federal district court and lost, and lost on appeal to the U.S. 9th Circuit Court of Appeals.  The 9th Circuit ultimately concluded that the Sign Code’s sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech.  The Church appealed to the U.S. Supreme Court.

Unlike the lower courts, the U.S. Supreme Court found the Sign Code to be a content-based regulation of speech.  It defines the categories of temporary, political and ideological signs on the basis of their messages and then subjects each category to different restrictions.  The restrictions thus depend entirely on the sign’s communicative content.  The 9th Circuit’s conclusion that the regulation was not based on a disagreement with the message conveyed “skips the crucial first step in the content-neutrality analysis: determining whether the law is neutral on its face.  A law that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motives, content-neutral justification, or ‘lack of animus toward the ideas contained’ in the regulated speech….In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.”

The 9th Circuit also erred in concluding that the Sign Code was content neutral because it does not mention any idea or viewpoint, let alone single one out for differential treatment.  The Supreme Court noted that while government discrimination among viewpoints, or based on the opinion or perspective of the speaker is a more blatant and egregious form of content discrimination, it is also discriminatory when government prohibits public discussion of an entire topic.  Gilbert’s Sign Code gives ideological messages more favorable treatment than messages concerning a political candidate, which in turn are give more favorable treatment than messages “concerning announcing an assembly of like-minded individuals.”  “That is a paradigmatic example of content-based discrimination.”

The 9th Circuit’s conclusion that the Sign Code made only speaker-based and event-based distinctions was also in error.  The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. “If a local business, for example, sought to put up signs advertising the Church’s meetings, those signs would be subject to the same limitations as such signs placed by the Church.”  Besides, speech restrictions based on the identity of the speaker are all too often simply a means to control content.

Having determined that the Sign Code was content-based and thus subject to strict scrutiny, the Supreme Court went on to conclude that the Sign Code did not pass Constitutional muster.  Gilbert did not demonstrate that the Code’s differentiation between the various types of signs being discussed furthered a compelling governmental interest.  Gilbert cannot claim that placing strict limits on temporary directional signs is necessary to beautify the town when other types of signs create the same problem.  Nor has it shown that temporary directional signs pose a greater threat to public safety than ideological or political signs.

The Supreme Court further observed:

Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an “absolutist” content-neutrality rule would render “virtually all distinctions in sign laws . . . subject to strict scrutiny, but that is not the case. Not “all distinctions” are subject to strict scrutiny, only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny. The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs “take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” At the same time, the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses—well might survive strict scrutiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes.

First Amendment claims, Signs and billboards, United States Supreme Court , ,

Apparently Wisconsin Legislature treats its budget bills like I treat the bottom drawer of my desk

June 17th, 2015

A week or so ago I posted about all the interesting things you can find in the Wisconsin Legislature’s budget bill that have nothing to do with the state budget, from exempting single state buildings from Madison’s zoning ordinance and requiring the state to  consider relocating its agencies to buildings outside of Dane and Milwaukee counties before renewing current leases, to altering Madison’s ability to use its lodging tax to support city services.

There is more!  Republicans also added to the state budget a provision that would bar counties from imposing stiffer zoning requirements along shorelines than those in state law.  The Milwaukee Journal Sentinel published an op-ed today opposing the measure, arguing that “it’s absurd to think that one size fits all, especially considering there are 15,000 lakes in Wisconsin with different levels of development around them. Counties should have the authority to work out improved controls for the lakes in their jurisdictions when warranted and in conjunction with property owners and lake associations.”

 

current news ,

Notice posted in internal hallway of building “reasonably calculated to apprise the public of the information”

June 15th, 2015

by Gary Taylor

City of Postville, et al v. Upper Explorerland Regional Planning Commission
Iowa Court of Appeals, June 10, 2015

This case came back to the Court of Appeals on remand from the Iowa Supreme Court.  In its 2013 decision the Supreme Court determined that there was a genuine issue of material fact on the issue of whether placing notices of Upper Explorerland Regional Planning Commission (Commission) meetings on a bulletin board in the building’s interior hallway outside the meeting room complied with Iowa’s Open Meetings Act.

Iowa Code 21.4 provides in part:

…[A] governmental body shall give notice of the time, date, and place of each meeting including a reconvened meeting of the governmental body, and the tentative agenda of the meeting, in a manner reasonably calculated to apprise the public of that information. Reasonable notice shall include advising the news media who have filed a request for notice with the governmental body and posting the notice on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose at the principal office of the body holding the meeting, or if no such office exists, at the building in which the meeting is to be held.

The facts relevant to the issue raised were recited by the Court of Appeals:

“The bulletin board is approximately thirty to forty feet from the main public access door.  The board is not visible from the entrance door to the office.  The office is open to the public Monday through Friday from 8:00am to 4:30pm…. The testimony indicated the bulletin board was visible from the reception area, but the board’s contents were not.  The Commission’s secretary testified that you could not specifically see what was on the bulletin board from the reception area.  The meeting notices have been posted on the same bulletin board in the same hallway outside the room where the Commission has met for at least twenty years.  While the general public did not regularly frequent the hallway, or the Commission’s building itself, the public was not prohibited from entering or viewing the contents of the bulletin board.  The receptionist, who had worked at the Commission for thirty-two years, testified she never turned a member of the public away from the door. However, she could not recall any member of the public ever coming to the office to ask when and where the Commission met.”

Approximately ten years before the lawsuit was filed, the Commission installed a new bulletin board located in the reception area of the building immediately inside the front door, but the meeting notices continued to be posted on the original bulletin board down the hall outside the meeting room.  The Court of Appeals observed, however, that “there is no indication that posting the notice on the new bulletin board would have resulted in more members of the public being apprised of the meetings since the only people to frequent the building were those who had business with the Commission or had an appointment.”  The Court concluded that “the statute does not require the notice of the meeting be viewable twenty-four hours a day, or that it be in the most visible place available.  All that is required is that the Commission substantially comply with the requirement that the notice be posted ‘in a manner reasonable calculated to apprise the public of the information.'”   Substantial evidence was present to support the district court’s conclusion that the Commission had met this standard.

Iowa Court of Appeals, Open Meetings , ,

Short-term rentals not allowed in R-1 residential district in Wisconsin county

June 11th, 2015

by Andrea Vaage

Vilas County v. Accola
Wisconsin Court of Appeals, May 12, 2015

The Accolas own a home on Rosalind Lake in Vilas County, Wisconsin, which is not their primary residence. The property is zoned R-1 Residential, which allows the following permitted uses:

  • Single-family detached dwelling units, including individual mobile homes, which meet the yard requirements of the district.
  • One non-rental guesthouse, which may be occupied on a temporary basis.
  • Parks, playgrounds, golf courses and other recreation facilities.
  • Home occupations.
  • Essential services.
  • Hobby farms.

The Vilas County zoning ordinance also includes an R/L Residential Lodging district. The purpose of the Residential/Lodging District, as stated in the ordinance, is to “provide for areas with primarily low-density residential use, but with some mixing of low-density Transient Lodging.” Transient Lodging is defined as “a commercial lodging establishment, which allows rental of sleeping quarters or dwelling units for periods of less than one month.” The R/L District lists the following permitted uses:

  • All uses permitted in the R-1 District.
  • Bed and breakfast establishments.
  • Resort establishments with no contiguous multiple-family dwelling units.
  • Rental of residential dwelling unit.

Shortly after purchasing the property the Accolas began advertising the property for rent on the internet for stays as short as two days. The County advised the couple that single-family residences in the R-1 district could not be rented for less than one month. In response, the Accolas established a corporation called Better Way to Live. The couple had people staying at the property “donate” to the corporation for cleaning, utility, and other expenses, and allegedly gave the remainder of the donation to charity. The County determined that donating posed no functional difference from renting the property. The circuit court enjoined the Accolas from renting the Rosalind Lake property for durations of less than thirty days, and the Accolas appealed.

The property is located in the R-1 residential district, which allows single family detached dwelling units, but makes no mention of whether renting the unit is allowed. The County asserted that rentals under one month were prohibited in the R-1 district because they are specifically permitted in the R/L district. Thus, if short-term rental was allowed in the R-1 district, then the additional language in the RL district ordinance would be meaningless.

The Court of Appeals agreed with the County.  When the R-1 district regulations are read in context with the R/L regulations, the only reasonable conclusion is that the phrase “rental of residential dwelling unit” in R/L refers to rentals of residential dwelling units for periods of less than one month.  The zoning ordinance unambiguously permits in the R/L district both: (1) the rental of single-family detached dwelling units for periods of less than one month; and (2) all uses permitted in the R-1 district, which includes single-family detached dwelling units. “If the Accolas were correct that the rental of single-family detached dwelling units for periods of less than one month was a permitted use in the R-1 district, then the section of the R/L district regulations permitting the rental of single-family detached dwelling units for periods of less than one month would be superfluous because all uses permitted in the R-1 district are already permitted in the RL district.”

The Court affirmed decision granting summary judgement to the County.

Wisconsin courts, Zoning ordinance interpretation ,

Third and final installment: Iowa’s impending wireless facilities siting legislation

June 10th, 2015

One of the goals of HF655 was to fill in “gaps” in the FCC rules when it comes to local regulation of the placement of new towers.  The first two posts on this blog essentially addressed those circumstances.  Another goal of the bill was to create a set of rules at the state level (which is then applied locally) that is identical to the FCC rules at the federal level.  Several sections of HF655 are thus simply a state codification of the shot clock rules (2009 FCC ruling), and a state codification of the rules from the Spectrum Act (2014 FCC ruling) that streamline approval of activities that do not constitute a “substantial change.”  The bill therefore

  • Sets forth definitions for “base station,” “collocation,” “eligible facilities request,” existing tower,” “substantial change,” “tower,” “transmission equipment,” “wireless support structure” that mirror those in the prior two FCC rulings.
  • Requires local governments to act on new tower applications within 150 days of receiving a complete application for construction, consistent with the 2009 FCC ruling.
  • Requires local governments to act within 90 days of receiving a complete application for “initial placement or installation of transmission equipment on wireless support structures, a modification of an existing tower or existing base station that constitutes a substantial change, or a request for construction or placement of transmission equipment that does not constitute an eligible facilities request,” consistent with both the 2009 and 2014 FCC rulings.

All records, documents, and electronic data submitted to the local government as part of the application process are treated as information subject to the Open Records Act (Iowa Code Chapter 22).  Presumably this provision was acceptable to the industry because the bill put significant limitations on the types of information that the local government could request from the applicant in the first place.

cell towers, Iowa legislation ,

Part II: Iowa’s impending wireless facilities siting legislation

June 9th, 2015
HF655 contains a section governing the contractual relationship between a local government and wireless facilities provider when the provider leases public land for such facilities.
  • The local government must offer the market rate value for use of that land.
  • The term of the lease shall be for at least twenty years.
  • If the local government and the provider cannot agree on the market rate for the lease, the appraisals of a three-person panel of appraisers shall determine the market rate. Each party will appoint one appraiser and the two appointed appraisers shall select a third appraiser. Each party shall bear the cost of its own appointed appraiser and equally share the cost of the third appraiser.
  • Each appraiser shall then independently appraise the appropriate market rate for lease of the land. The market rate shall then be set at the median value between the highest and lowest market rates determined by the three independent appraisers. However, if the median between the appraisals of the appraisers appointed by each party is greater than or less than ten percent of the appraisal of the appraiser selected by the two appraisers, then the appraisal of the appraiser selected by the two appraisers shall determine the rate for the lease.
  • The local government can then  approve or reject the lease rate as determined by the appraisal process within fifteen days following completion and receipt of the appraisals. Failure to reject the lease rate within fifteen days constitutes approval of the lease rate.
A local government shall not mandate, require, or regulate the installation, location, or use of transmission equipment on a utility pole.
HF655 dos not prohibit an airport or local government from administering and enforcing airport zoning under Iowa Code Chapter 329.
It does not infringe upon the jurisdiction of an historic preservation commission or local government to approve or deny applications for proposed alterations to exterior features within an historic preservation district, or on local historic landmarks.

cell towers, Iowa legislation ,

First installment: Iowa’s impending wireless siting rules

June 8th, 2015

The Iowa Legislature has sent a bill to the Governor that will create a set of uniform rules for local governments as they regulate the placement and alteration of  wireless facilities (cell towers and other types of wireless facilities).  HF655 is meant to work in harmony with previously adopted FCC rules, such as the shot-clock rule (here and here) and the rules implementing the Spectrum Act.   In a nutshell, HF655 presents a list of 13 things that a local government cannot do when presented an application for a wireless facility.  Straight from the bill, the list of 13 things that a local government cannot do:

  1. Require an applicant to submit information about, or evaluate an applicant’s business decisions with respect to, the applicant’s designed service, customer demand for service, or quality of the applicant’s service to or from a particular area or site.
  2. a. Evaluate an application based on the availability of other potential locations for the placement or construction of a tower or transmission equipment. b. Require the applicant to establish other options for collocation instead of the construction of a new tower or modification of an existing tower or existing base station that constitutes a substantial change to an existing tower or existing base station. c. Notwithstanding paragraph “b” , an authority may require an applicant applying for the construction of a new tower to state in its application that it conducted an analysis of available collocation opportunities on existing towers or existing base stations within the same search ring defined by the applicant solely for the purpose of confirming that the applicant undertook such analysis.
  3. Dictate the type of transmission equipment or technology to be used by the applicant or discriminate between different types of infrastructure or technology.
  4. a. Require the removal of existing towers, base stations, or transmission equipment, wherever located, as a condition to approval of an application. b. Notwithstanding paragraph “a” , the authority may adopt reasonable rules regarding removal of abandoned towers or transmission equipment.
  5. Impose environmental testing, sampling, or monitoring requirements, or other compliance measures, for radio frequency emissions from transmission equipment that are categorically excluded under the federal communications commission’s rules for radio frequency emissions pursuant to 47 C.F.R. §1.1307(b)(1). 
  6. Establish or enforce regulations or procedures for radio frequency signal strength or the adequacy of service quality.
  7. Reject an application, in whole or in part, based on perceived or alleged environmental effects of radio frequency emissions, as provided in 47 U.S.C. §332(c)(7)(B)(iv). 
  8. Prohibit the placement of emergency power systems that comply with federal and state environmental requirements. 
  9. Charge an application fee, consulting fee, or other fee associated with the submission, review, processing, or approval of an application that is not required for similar types of commercial development within the authority’s jurisdiction. Fees imposed by an authority or by a third-party entity providing review or technical consultation to the authority shall be based on actual, direct, and reasonable administrative costs incurred for the review, processing, and approval of an application. In no case shall total charges and fees exceed five hundred dollars for an eligible facilities request or three thousand dollars for an application for a new tower, for the initial placement or installation of transmission equipment on a wireless support structure, for a modification of an existing tower or existing base station that constitutes a substantial change to an existing tower or base station, or anyother application to construct or place transmission equipment that does not constitute an eligible facilities request. An authority or any third-party entity shall not include within its charges any travel expenses incurred in the review of an application, and an applicant shall not be required to pay or reimburse an authority for consultant or other third-party fees based on a contingency or result-based arrangement. 
  10. Impose surety requirements, including bonds, escrow deposits, letters of credit, or any other type of financial surety, to ensure that abandoned or unused towers or transmission equipment can be removed unless the authority imposes similar requirements on other applicants for other types of commercial development or land uses. If surety requirements are imposed, the requirements must be competitively neutral, nondiscriminatory, reasonable in amount, and commensurate with the historical record for local facilities and structures that are abandoned. 
  11. Condition the approval of an application on the applicant’s agreement to provide space on or near the tower, base station, or wireless support structure for authority or local governmental or nongovernmental services at less than the market rate for such space or to provide other services via the structure or facilities at less than the market rate for such services. 
  12. Limit the duration of the approval of an application, except that construction of the approved structure or facilities shall be commenced within two years of final approval, including the disposition of any appeals, and diligently pursued to completion. 
  13. Discriminate on the basis of the ownership, including ownership by the authority, of any property, structure, or tower when promulgating rules or procedures for siting wireless facilities or for evaluating applications.

Tomorrow’s post will look at other parts of HF655.

cell towers, Iowa legislation ,

News from Wisconsin: Wisconsin legislature moves to preempt Madison zoning of single state building

June 4th, 2015

Another for the “state involved in local affairs” file.  The Republican-led budget committee of the Wisconsin House insert a provision in the budget bill to exempt the site of the Hill Farms state office building from the City of Madison’s zoning regulations.  The office building is slated for redevelopment, and the city and the state have been working to accommodate the new building in the city’s zoning code.  “It is of concern to us, not just in terms of this building but in terms of the future,” said Madison Mayor Paul Soglin.

The full story from the Wisconsin State Journal is here.
Another interesting story that reflects the tensions between the city of Madison and the state legislature: Another proposal tucked into the budget bill would require the state to  consider relocating its agencies to buildings outside of Dane and Milwaukee counties before renewing current leases.

And even more!  Another proposal in the budget bill would alter the Madison’s ability to use its lodging tax to support city services, the Mayor saying it could cost Madison’s general fund $1 million next year.

current news, Preemption ,