Defendants ‘good deeds’ not a defense to nuisance action

April 20th, 2015

by Hannah Dankbar and Gary Taylor

Flynn v. Hurley
North Dakota Supreme Court, March 24, 2015

The Flynns have lived on their property in East Fairview since 1999. This is a small-unincorporated village on the border of North Dakota and Montana. In 2007 Hurley Enterprises, which is owned by Vess Hurley, began operating an oil field service company on the property next to the Flynns. Hurley used the property to store large equipment and to dump sewage. The Flynns noticed an increase in truck traffic, dust, noise, diesel, smoke, lights and sewage odor.

The Flynns filed a complaint against the company claiming that the activity constituted a public and private nuisance. After a trial at district court it was determined that there was no private or public nuisance.  The Flynns claimed that the district court erred by allowing evidence about the reputation and good deeds of the company and the owner, and that this evidence was irrelevant to the nuisance question. The district court included in its opinion several quotes of witnesses speaking to the character of the company and of the owner, such as how he funds students to go on trips and plows snow in the town.

Section 828 of the Second Restatement of Torts (1977), states;

“In determining the utility of conduct that causes an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:
(a) the social value that the law attaches to the primary purpose of the conduct;
(b) the suitability of the conduct to the character of the locality; and
(c) the impracticability of preventing or avoiding the invasion.”

The relevant conduct in a nuisance action thus is not the value of the “good deeds” of the defendant in the community, but rather the value to society of the invasive actions that allegedly are a nuisance. The testimony that the Flynns objected to is irrelevant to the nuisance question because it did not “tend to prove or disprove any fact in issue.”

The Flynns also argued that district court erred in instructing the jury on the immunity afforded nuisance defendants.  The court gave the jury the following instruction:

ACTS DONE UNDER STATUTORY AUTHORITY NOT DEEMED NUISANCE
Nothing which is done or maintained under the express authority of a statute, law, or action of a governing body shall be deemed a nuisance. This protection is lost if the authority given is exceeded or is exercised in a negligent or unreasonable manner.”

Hurley Enterprises explained to the jury how they obtained approval from the necessary boards on issues related to zoning and sewage. Hurley Enterprises argued that since they obtained approval, their actions cannot be a nuisance; however, the North Dakota Supreme Court determined that the instruction misstated the law and was not supported with evidence and should not have been included. First, North Dakota zoning statutes do not expressly or by implication authorize the actions of Hurley Enterprises alleged to be a nuisance. Second, the instruction suggested that any action of a governing body could immunize the individual creating the nuisance, whether or not such action is authorized by statute. East Fairview has a three-member sewer board, which is a nonprofit entity that met informally and infrequently. One or more members of the sewer board gave Hurley Enterprises permission to dump sewage into the manhole near the property line with the Flynns. This was beyond the scope of authority of the sewer board, and so cannot be relied upon to immunize Hurley Enterprises from nuisance liability.

The Flynns argued that these mistakes (and others not reviewed in this brief) allow for a new trial. The North Dakota Supreme Court agreed that Flynn’s substantive rights were violated and that there should be a new trial.

North Dakota courts, Nuisance ,

Regulation of charitable donation bins was content-based, likely to be found unconstitutional

April 16th, 2015

by Hannah Dankbar

Planet Aid v. City of St. Johns, Michigan
Federal 6th Circuit Court of Appeals, April 6, 2015

Planet Aid is a non-profit community development organization.  Among its activities, the organization gathers donations of clothing and shoes using unattended, outdoor donation bins. Planet Aid takes these donations and gives them to other organizations around the world.

To establish the donation bins Planet Aid gets consent from property owners of private businesses to put the bin on their property. Planet Aid aims to have donation bins in convenient locations and have a representative of the organization collect the donations on a weekly basis. There is contact information for the representative on the bin to be used on an as-needed basis.

In December 2012 Planet Aid placed two donation bins in the City of St. Johns, Michigan. At the time, St. Johns had no regulation of charitable donation bins. In January 2013 the City sent Planet Aid a letter that read, “clothing donation containers have been found to create a nuisance as people leave boxes and other refuse around the containers.” Planet Aid was instructed to remove the bins by January 23. If they did not remove the bins, the City would. An attorney for Planet Aid asked the City Attorney if they had to be removed by the 23rd, or if they could wait until the City Council/planning commission enacted an ordinance against the bins. Planet Aid was told to remove the bins, and was also told it did not have standing to appeal the decision because it did not own property where the bins were located. The City moved the bins and moved them to a City facility where they were later picked up by Planet Aid.

In December 2013 City Council addressed the issue of charitable donation bins. The planning commission had made a recommendation of a “total prohibition” of such bins to the Council.  At the Council meeting, the Mayor said other communities “had people dropping off their trash” at donation bins, although the Public Works Director responded that trash drop offs at the two bins had “very seldom” occurred.

Ordinance #618 was put in place.  The substantive prohibition of the ordinance read:

No person, business or other entity shall place, use or allow the installation of a donation box within the City of St. Johns….A donation box that exists on the effective date of this ordinance shall not be subject to the prohibition contained herein.

The purpose statement of the ordinance read:

It is the intent of this section to prohibit donation boxes to protect the health, safety and welfare of the citizens of the city by preventing blight, protecting property values and neighborhood integrity, avoiding the creation and maintenance of nuisances and ensuring the safe and sanitary maintenance of properties. Unattended donation boxes in the city may become an attractive nuisance for minors and/or criminal activity. It is also the intent of this section to preserve the aesthetics and character of the community by prohibiting the placement of donation boxes.

In February 2014 Planet Aid filed a complaint in district court claiming that the ordinance violated their First Amendment right of charitable solicitation and giving. They claimed that the ordinance is a content-based restriction and deserved strict scrutiny. The City claimed that the bins were advertisements, and therefore the ordinance is content-neutral. The District granted Planet Aid’s motion for a preliminary injunction pending trial, and the City appealed.

The US Supreme Court has held that speech regarding charitable giving and solicitation is a protected First Amendment activity, and has applied strict scrutiny to local ordinances that presume to regulate charitable giving activities.  The Supreme Court has not addressed unattended donation bins, but the Fifth Circuit invalidated a Texas law that required such bins to make note of whether the donated items would be sold or not (National Federation of the Blind of Texas, Inc. v. Abbott). The Fifth Circuit stated that “public receptacles are not mere collection points for unwanted items, but are rather “silent solicitors and advocates for particular charitable causes.” The Sixth Circuit agreed with the reasoning of the Fifth, and noted that just because speech related to charitable giving may take the form of a bin does not mean it deserves less than strong constitutional protection.

Still, government regulations of protected speech only receive strict scrutiny if they are content-based.  Government actions that merely regulates the time, place, and manner of protected speech are subject to an intermediate level of scrutiny.  The US Supreme Court has analyzed the content-based versus content-neutral question in a number of ways: (1) whether the “government has adopted a regulation of speech because of a disagreement with the message it contains” (Hill v. Colorado); (2) whether the regulation hinders the “communicative impact of the [the speaker’s] expressive conduct.” (Texas v. Johnson); (3) whether the legislature’s predominant intent regarded the content of speech, rather than its’ secondary effects (Renton v. Playtime Theaters, Inc.); (4) whether the regulation is “based on the content of the speech” and not “applicable to all speech irrespective of content” (Consol. Edison Co., 447 U.S. at 536.). Under the guidance of these factors the Sixth Circuit determined that Ordinance #618 was content-based because it only banned outdoor bins that share a common topic – charitable giving – and not other outdoor bins or receptacles  such as dumpsters.  The concerns about overflowing items, trash dumping, and the risk of children climbing into such receptacles apply with equal force to dumpsters, receptacles at recycling centers, and public and private trash cans.

Because the ordinance was found to be content-based, it must stand up to strict scrutiny. The Sixth Circuit determined that there was sufficient evidence on this question to justify the district court’s determination that Planet Aid was likely to succeed on the merits (thereby justifying the preliminary injunction).  For these reasons the Court affirmed the ruling from district court.

Federal courts, First Amendment claims , ,

Flooding in Iowa project receives national and regional awards

April 14th, 2015

The Flooding in Iowa project (accessible here and via the “Flooding in Iowa” tab at the top) received the national Educational Materials Award for 2015 from the National Association of Community Development Extension Professionals (NACDEP), and the regional Educational Materials Award from the NACDEP North Central Region.  These awards are given annually to recognize “outstanding materials that educate through credible, accurate and concise information.”  Both awards will be presented during the NACDEP Annual Conference, May 17-20 in Little Rock, Arkansas.

The Flooding in Iowa project is a series of 21 short, web-based videos and related materials designed to educate the public about floodplains, flood risks and basic floodplain management principles.

Education/Conferences, Flood mitigation or recovery, Floodplains , , , ,

DoT must pay just compensation for property erroneously recorded as “dedication” on plat map

April 13th, 2015

by Hannah Dankbar and Gary Taylor

Somers USA, LLC v. Wisconsin Department of Transportation
Wisconsin Court of Appeals, March 25, 2015

Somers purchased about 47 acres in 2007 to build a truck stop off of I-94. At the time the state was planning on using about 9.5 of those acres for a frontage road, and about 3 acres for an on ramp for a highway project. An engineering company helped create the Certified Survey Map (CSM).  The initial draft of the CSM reserved both the 9.5-acre and the 3-acre parcels as “Future Wisconsin D.O.T. Right-of-Way.”  The Kenosha County Land Use Committee approved the CSM without any conditions or communications regarding land dedication for public use.

In 2008 when Somers recorded their final CSM it dedicated the 9.5 acres as “Road Dedication for Future Highway Purposes,” and the 3 acres as “a road reservation for potential future state highway purposes.” All parties agree that Somers never intended to dedicate land for the highway project and that none of the governmental bodies involved had required or asked for a dedication. Individuals involved with drafting and signing the CSM stated that they do not know how the “dedication” language wound up in the document.  The State thereafter built a frontage road and on-ramp on the two parcels without compensating Somers, relying on the “reservation” and “dedication” language in the CSM to give it a right to the property without any requirement to pay Somers for the land taken. Somers filed a complaint seeking just compensation for their land. The court ordered the state to pay Somers $500,000 plus attorney fees, costs and interest. The state appealed this decision.

The Fifth Amendment of the US Constitution and Article I section 13 of the Wisconsin Constitution prohibit the taking of land without just compensation. The state relied on Wis. Stat. §236.29(1) which states, ““[w]hen any plat is certified, signed, acknowledged and recorded as prescribed in this chapter, every donation or grant to the public … marked or noted as such on said plat shall be deemed a sufficient conveyance to vest the fee simple of all parcels of land so marked or noted.” However, for the state to rely on this statute the land must be dedicated according to proper procedure under Wis. Stat. §236.34(1m)(e), which require a local governing board to approve the dedication in the CSM. No governmental board involved in Somers’ development approved any road dedication or land grant for inclusion in the CSM; therefore, the CSM lacked the force and effect required to convey the property to the State.

The court went on:  “Undeterred by the evidence that no dedication was ever intended or approved, the State proffers the absurd argument that it can still take Somers’ property without compensation as it was entitled to rely on an invalid dedication in a CSM.”

When a court leads by calling an argument “absurd” you can anticipate the results….

The court found no legal dedication, and therefore found that the state owes just compensation to the Somers.

 

 

 

 

 

Condemnation, Highways, Plats, Wisconsin courts , ,

All states in designated non-attainment area must include Reasonably Attainable Control Measures and Technologies in State Implementation Plans (acronyms omitted!)

April 8th, 2015

by Hannah Dankbar

Sierra Club v Environmental Protection Agency
Federal 6th Circuit Court of Appeals, March 18, 2015

In 2011 the EPA reported that the Cincinnati-Hamilton metropolitan area attained national air quality standards for particulate matter. A regional cap-and-trade program helped the area reach this standard. The EPA gave the area “attainment” status, even though the three States that administer its pollution controls never implemented the provisions known as “reasonably available control measures” (RACM) that apply to nonattainment areas. Sierra Club filed a complaint against the EPA for acting illegally.

The Clean Air Act (CAA) allows the EPA to add different kinds of emissions that can damage public health to the National Ambient Air Quality Standards. When an emission is added to this list each state must submit a State Implementation Plan (SIP) for achieving the standard. After receiving the plan the EPA will designate areas in each state as “attainment areas” (areas that attain the standard), “nonattainment areas” (areas that do not) or “unclassifiable areas”. If a state has “nonattainment areas” the state, or states, must revise their plan to meet additional requirements. One requirement is “RACM”, or “RACT”, which requires that the SIP “provide for the implementation of all reasonable available control measures (RACM) as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, or reasonably available control technology (RACT) and shall provide for attainment of the national primary ambient air quality standards.” Id. 7502(c)(1). There are five conditions that must be met in order for the EPA to switch a “nonattainment area” to an “attainment area.”

To address areas of concern along state lines, the EPA created a cap-and-trade system. A “cap” is set on allowable emissions; anybody who has emissions above this limit can either invest in clean technology or “trade” emission credits with another entity.

Sierra Club argued that the improvement in area quality that could be attributed to the cap-and-trade program was not “permanent and enforceable reductions in emissions” required under the CAA, and that the nonattainment State Implementation Plan (SIP) had never been implemented. The State of Ohio and the local utility company joined the EPA in disagreement. The EPA claims that Sierra Club does not have standing in this matter and they challenge the interpretation of the CAA.  After addressing the standing questions (it was determined that the Sierra Club did have standing) the court addressed the CAA interpretation argument.

Sierra Club first questioned EPA’s interpretation of a provision of the CAA that bars redesignation to attainment unless “the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions[.]” Sierra Club claimed that the cap-and-trade system is not “permanent and enforceable” because a company could simply buy more credits from polluters outside the nonattainment area and increase their emissions. Sierra Club wanted “permanent and enforceable reductions in the nonattainment area”. The EPA acknowledged that the statute does not clarify from which area the reduction comes from. The court decided that the statute is “sufficiently ambiguous” to clear the first part of the test.

In the question of whether the EPA’s interpretation is a permissible construction of the statute, they found that this rested on the acknowledgement of regional problems. The EPA acknowledged that the pollution is a regional problem. The court did not see the word ‘permanent’ as being sufficient enough to close cap-and-trade programs. Neither Congress nor Sierra Club offered a definition of enforceable. From the statute it does not appear that Congress intended cap-and-trade programs to be excluded. This is enough to conclude that their focus is “sufficiently rational” and within the statutory limits and blocks the warrant for deference to their technical expertise.

Sierra Club challenged EPA’s approval of the state’s SIPs without RACM/RACT. Indiana and Ohio did not have these provisions in their plans. A state seeking redesignation “shall provide for the implementation” of RACM/RACT, even if those measures are not strictly necessary to demonstrate attainment. If the State has not done so, EPA cannot “fully approve” the area’s SIP, and redesignation to attainment status is improper.

Because the Ohio and Indiana SIPs for their respective portions of the Cincinnati-Hamilton area did not provide for RACM/RACT, the EPA acted in violation of the CAA when it approved those redesignation requests. The court ordered the EPA to reject the redesignation of Ohio and Indiana’s portions of the Cincinnati-Hamilton area, and leave the Kentucky area as was originally defined.

Clean Air Act, Federal courts, Uncategorized ,

Nonconforming use provision preventing re-leasing of mobile home park lot when tenant leaves found unconstitutional

April 6th, 2015

by Hannah Dankbar

State ex rel. Sunset Estate Properties, LLC v. Village of Lodi
Ohio Supreme Court, March 10, 2015

Sunset Properties, L.L.C. and Meadowview Village, Inc. both own property in the village of Lodi where they operate mobile-home parks. Both of the properties are in R-2 zones, which do not allow for mobile-home parks. The mobile-home parks were established before establishing the zone as an R-2 zone, so they are considered legal nonconforming uses under R.C. 713.15.

In 1987 the village of Lodi passed Lodi Zoning Code 1280.05(a), which reads;

Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evidence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further use shall be in conformity with the provisions of this Zoning Code. In the case of nonconforming mobile homes, their absence or removal from the lot shall constitute discontinuance from the time of absence or removal.

This ordinance is specific towards each individual mobile home; meaning that when a tenant leaves a mobile home and the lot stands vacant for more than six months, Lodi will not reconnect water and electrical service for the new tenant. This results in the mobile home park owners not being able to rent these lots and essentially losing their property. The property owners claim that this ordinance is unconstitutional on its face.

The property owners claim that this ordinance violates the 14th Amendment of the United States Constitution and Section 16 Article 1 of the Ohio Constitution. these clauses provide that no person shall be deprived of life, liberty or property without due process of law. In Akron v Chapman the Ohio Supreme Court held, “Zoning ordinances contemplate the gradual elimination of nonconforming uses within a zoned area, and, where an ordinance accomplishes such a result without depriving a property owner of a vested property right, it is generally held to be constitutional.”  The state and local governments have wide reaching powers to regulate land use, but that power is not unlimited.

The last sentence of the ordinance deprives the owner of the ability to use the property that was considered legal before the adoption of this ordinance. Even though the mobile home tenant is the one who makes the decision to leave, the park owner is the one who loses their property right to use their entire property in a way that was legal before the adoption of this ordinance. This deprivation trumps Lodi’s goals of promoting development and protecting property values. All other parts of this ordinance are constitutional, it is only the last part that cannot be applied.

The dissenting opinion argues that there are non-constitutional issues in this case that can be addressed to resolve this case without making constitutional claims. The property owners claimed that the ordinance conflicted with state law. The majority found the ordinance ambiguous as to whether Lodi would classify the individual lots as nonconforming uses. The dissent argued that this issue should have been addressed and decided before the constitutional issue.

 

 

Mobile and manufactured homes, Non-Conforming Uses, Ohio courts , ,

News from Nebraska: Livestock siting bill, significantly amended, moves forward

April 3rd, 2015

The Nebraska Legislature’s attempt to create uniformity in the livestock permitting process, first discussed here, is advancing as a result of compromise language.  Under the bill, a panel of experts appointed by the State Department of Agriculture would develop a matrix that county officials could use to determine whether to approve a livestock operation. LB106 passed its first reading on a 32-3 vote to advance, however, by removing language that made state livestock siting regulations mandatory for elected county officials. It would be up to individual county boards to decide whether to use the state standards.

Most of the senators who opposed the original bill said it substantially reduced local control over where to allow major livestock facilities. Livestock industry groups that support the bill say uniform standards on setbacks, odor control and other requirements would make the state more attractive to livestock producers.

An article from the Omaha World-Herald is here.

Agricultural Uses/Agricultural Exemption, current news, Nebraska legislation ,

Illinois village must produce some evidence of negative secondary effects to adopt adult entertainment regulation

April 2nd, 2015

by Gary Taylor

Foxxxy Ladyz Adult World, Inc., v. Village of Dix
(Federal 7th Circuit Court of Appeals, March 10, 2015)

[I love the spelling of these places.  Apparently Xs and Zs are sexy!]

The Village of Dix is a “dry” municipality (it prohibits the sale of alcohol in village limits) of approximately 500 residents, located in Jefferson County, Illinois. In October 2010, Dirt Cheap, Inc. purchased commercial real estate in Dix and opened a nightclub offering erotic entertainment. Two years later, Foxxxy Ladyz Adult World, Inc. began to rent the property from Dirt Cheap. Now operated by Foxxxy Ladyz, the nightclub features nude dancing and is open to all members of the public age twenty-one and over. Although Foxxxy Ladyz does not sell alcohol, it allows its customers to bring their own alcoholic beverages (“BYOB”) onto the premises. Foxxxy Ladyz is one of the few commercial establishments in Dix, and is located across the interstate from the Village’s other businesses, residences, and grade school.
In December 2010, shortly after Dirt Cheap opened, Dix passed three ordinances: (1) an ordinance prohibiting open containers of alcohol in public, (2) a public nudity ban, an (3) a prohibition against the possession of alcohol in places of public accommodation, such as restaurants and retail establishments.  In adopting these ordinances, Dix conducted no studies of the possible negative secondary effects of erotic nightclubs or other adult entertainment establishments, nor did it reference studies done in other locales.  In 2013, the Village sent Foxxxy Ladyz a notice that it was in violation of all three ordinances.  Foxxxy Ladyz responded by filing suit.  Foxxxy Ladyz concededly operates in violation of all three ordinances; however, Foxxxy Ladyz argued that (1) the public nudity ban violates the Free Speech provisions of the First Amendment, and (2) Dix did not have the authority under Illinois law to pass the alcohol-related restrictions.  The district court sided with the Village, and Foxxxy Ladyz appealed.
Free Speech claim.  Foxxxy Ladyz contended that the Village must point to actual evidence of potential negative secondary effects – whether it be developed by the Village itself or cited from studies of other jurisdictions – for the necessary justification for the public nudity ban. Dix argued that because the language in its public nudity ordinance was intentionally modeled after bans in other jurisdictions  “that have been approved by the courts as being consistent with the Illinois and United States Constitutions” that the findings from those bans provide all the justification needed for its own ban.  The 7th Circuit found guidance in the following statement from the US Supreme Court in City of Los Angeles v. Alameda Books:

In Renton, we…held that a municipality may rely on any evidence that is “reasonably believed to be relevant” for demonstrating a connection between speech and a substantial, independent government interest. This is not to say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.

The 7th Circuit “has been consistent in requiring that a regulating body produce some specific, tangible evidence establishing a ling between the regulated activity and harmful secondary effects” (Citing Annex Books v. City of Indianapolis).  Based on the fact that Dix “has not offered an iota of evidence” on secondary effects, the 7th Circuit reversed he district court and remanded the case to district court.  The 7th Circuit noted that Dix may still have an opportunity to “demonstrate a reasonable belief in a causal relationship between public nudity and secondary effects” in litigation at the district court.

Alcohol restrictions.  The 7th Circuit interpreted Illinois law to confer on municipalities broad discretion to regulate alcohol consumption in order to promote public health and safety, including via the imposition of a prohibition on open containers of alcohol in public. The court also affirmed that the First Amendment “does not entitle a bar, its dancers or its patrons, to have alcohol available during a presentation of nude or semi-nude dancing.” Furthermore, the ordinances apply broadly to all public accommodations and do not, on their face, target establishments where protected expressive conduct is likely to occur. Under a rational basis test the Dix alcohol ordinances passed muster.

Adult Entertainment Regulations, Federal courts, First Amendment claims , , ,

Lawyer must be present at meeting to invoke litigation exception to open meeting requirement

March 31st, 2015

by Gary Taylor

Olinger, et al. v. Harrison County, Iowa, Utman Drainage District et. al.
Iowa Court of Appeals, March 25, 2015

The trustees for the Utman Drainage District went into closed sessions on November 7 and November 14, 2013, allegedly to discuss matters relating to pending litigation.  In court documents the trustees admitted that legal counsel for the district was not present at either meeting.  On November 25, 2013 Olinger and Meyer (plaintiffs) filed a petition alleging that both closed sessions were held in violation of the Iowa Open Meetings Act (OMA).  The parties requested the district court judge to conduct an in camera (private) inspection of the recordings of the meetings for the purposes of determining whether the records should be open to the public.  The district court did so, and filed an order on March 4, 2014 giving plaintiffs access to the November 7 recording (which merely contained a discussion of paying subpoenas from a previous lawsuit) but denying access to the November 14 recordings because the trustees were discussing strategies involving imminent litigation.  The court further ordered each trustee to pay a $100 fine for closing the November 7 meeting unlawfully (which the court later suspended on the condition that the trustees by a handbook on open meetings from the Iowa Freedom of Information Council).  Cross appeals were filed.

One issue presented, but not addressed in detail here, was whether the court could impose the $100 fine – and later suspend that fine – based solely on the court’s in camera inspection of the record.  The Court of Appeals determined it could not impose the fine without taking evidence on the question of whether the trustees knowingly violated the OMA.

The other issue was whether the trustees could invoke the “litigation” exception to the open meetings requirement without the drainage district’s attorney being present at the meeting.  Iowa Code Section 21.5 provides in part:

1.  A governmental body may hold a closed session only by affirmative public vote of either two-thirds of the members of the body or all of the members present at the meeting. A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons:
….
c.  To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.

The Court of Appeals found no ambiguity in that section.  Although the trustees argued that the placement of “or” in section 21.5(1)(c) (“matters that are presently in litigation or where litigation is imminent”) makes the presence of counsel optional, the court considered it clear that the phrase “discuss strategy with counsel” at the beginning of the sentence was meant to modify both “presently in litigation” and “where litigation is imminent.”  The court reviewed the legislative history of that subsection and found it supported its conclusion that in order to invoke the litigation exception the governing body’s lawyer must be present at the closed session, regardless of whether the governing body was in litigation or whether litigation was imminent.

Iowa Court of Appeals, Open Meetings ,

Requiring conditional use permit for residential substance abuse service facilities does not violate ADA

March 30th, 2015

by Gary Taylor

Get Back Up, Inc. v. City of Detroit
Federal 6th Circuit Court of Appeals, March 13, 2015

Get Back Up operates a 160-bed all male residential facility in downtown Detroit, providing substance abuse treatment and counseling, education, and job training opportunities.  In August 2007 it purchases an unused school building from Detroit Public Schools for approximately $500,000.  The building is located in B4-H, General Business/Residential Historic zoning district.  The B4-H District allows boarding schools, child care institutions, nursing homes, religious residential facilities, adult day care centers, hospitals, libraries and religious institutions (among other uses) by right.  It lists “residential substance abuse service facilities” as one of several conditional uses requiring the satisfaction of 15 stated criteria before being allowed.  Get Back Up originally received approval of its conditional use application for the building in the B4-H District from the Building Safety and Engineering Department, but the Russell Woods-Sullivan Area Homeowners Association appealed the approval to the Board of Zoning Appeals (BZA).  The BZA voted to reverse the decision.  Get Back Up appealed the BZA decision to Wayne County Circuit Court, and after bouncing around between circuit court and the BZA several times the circuit court affirmed the BZA’s denial.  Appeals to the Michigan Court of Appeals and Supreme Court were unsuccessful.  After this, Get Back Up filed a complaint in federal court, claiming that the denial violated the American’s with Disabilities Act, the Rehabilitation Act, and the Fair Housing Act.  The federal district court also ruled in favor of the city, and Get Back Up appealed.

Get Back Up argued that requiring residential substance abuse service facilities to obtain a conditional use permit when other similar uses are allowed by right is discriminatory.  The 6th Circuit disagreed, finding that the ordinance does not allow any materially similar use to operate by right in any B4 zoning district.  Residential substance abuse service facilities are treated the same as many other residential uses such as multi-family dwellings, emergency shelters, rooming houses, and fraternities and sororities.  Furthermore, the court found that the other uses cited by Get Back Up in support of their case (nursing homes and hospitals) are not materially similar to residential substance abuse service facilities.  Hospitals are not residential uses, and they tend to have substantial impact on their immediate surroundings and are particularly well suited for busy commercial districts like B4 districts.  While nursing homes are residential uses, their residents are “often physically disabled and they rarely leave the premises….[They are a] uniquely sedate and unburdensome use, having relatively little impact on traditional zoning concerns like noise and traffic.”

The court also found no merit in Get Back Up’s argument that the 15 criteria for approving a conditional use permit are unconstitutionally vague.  The phrases “detrimental to or endanger the social, physical, environmental or economic well being of surrounding neighborhoods,” “use and enjoyment of other property in the immediate vicinity,” and “compatible with adjacent land uses” are terms with “common-sense meanings” and are not so vague as to fail to provide fair notice to applicants of what is prohibited.”

The 6th Circuit Court of Appeals affirmed the ruling in favor of the City of Detroit.

Americans with Disabilities Act, Conditional Uses/Special Uses, Due Process, Fair Housing Act, Federal courts , , ,