We talk at length in our upcoming planning and zoning workshops about the local comprehensive plan, its purposes and its goals. Here is a link to a good article from “Better! Cities and Towns about how to gauge whether your comprehensive plan has become stale, meaningless or, in the worst-case, even harmful to your community.
Month: January 2014
Indianapolis ordinance requiring nightly closure of adult bookstores violates First Amendment
by Gary Taylor
Annex Books, Inc. v. City of Indianapolis
(Federal 7th Circuit Court of Appeals, January 24, 2014)
The city of Indianapolis requires all adult bookstores to close between midnight and 10am daily, and to remain closed all day on Sundays. In previous (2010) litigation before the 7th Circuit on the same ordinance, the Court found the city’s evidence for the need for a statute requiring closure “weak.” The evidence the city offered addressed different types of adult materials, and pertained to cities with different types of ordinances, including ordinances that do not require closure. When the 7th Circuit remanded the case to the district court the city offered one lone justification for the ordinance: that closure resulted in fewer armed robberies near adult bookstores.
The 7th Circuit pointed out that the statistical evidenced offered on this point was not the result of multivariate regression. When regression analysis was utilized the data no longer supported the proposition that robberies were more likely at late-night adult bookstores versus other late-night establishments such as taverns, liquor stores, pharmacies or convenience stores (which the city did not require to be closed as part of the ordinance). Moreover, the robberies that did take place more often happened to the bookstore itself and its patrons, rather than to other businesses or passers-by. “The Supreme Court has not endorsed an approach under which governments can close bookstores in order to reduce crime directed at businesses that knowingly accept the risk of being robbed, or persons who voluntary frequent their premises.” Citing the Supreme Court in Alameda Books, the court affirmed that “a city cannot regulate the secondary effects of speech by suppressing the speech itself….[The benefits of the Indianapolis ordinance] come from closure: the shuttered shops can’t be robbed at gunpoint, and they lack customers who could be mugged. If that sort of benefit were enough to justify closure then a city could forbid adult bookstores altogether.” The case was remanded with an order to issue an injunction preventing the enforcement of the closure ordinance.
First STROADs, now SNECKDOWNs. Two weeks of new traffic terminology
Last week I linked to an article about STROADs – the street/road hybrid that moves traffic at speeds too fast to support adjacent economic investment, but too slow for efficient transportation. This week finds me reading about SNECKDOWNs – piles of plowed snow found at street intersections that act as de facto curb extensions (a.k.a. “neckdowns,” making snow neckdowns into…SNECKDOWNs!). The article is here. In it Clarence Erickson, a documentarian who focuses on pedestrian- and bicycle-friendly streets, says
When that snow piles up at a lot of intersections in neighbourhoods, you see that space where they could put a kerb extension,” says Eckerson. “The cars still can make the turn, including trash trucks and school buses, but you see the slow, more deliberate turn around the corner instead of cutting it….It’s free. You don’t have to do a crazy expensive traffic calming study. It provides a visual cue into how people behave in transportation.
(If the spellings didn’t give it away, the article is from the BBC News Magazine.)
Lincoln Center (KS) noise ordinance unconstitutional as applied, nuisance ordinance was not
by Gary Taylor
City of Lincoln Center v. Farmway Co-Op and Farmway Storage #1
(Kansas Supreme Court, December 20, 2013)
Farmway owns a grain elevator in the city of Lincoln Center, largely surrounded by residences. In 2008 Farmway applied for, and was granted a permit to expand the facility by adding a new 124-feet tall grain bin and four aeration fans for grain drying.
According to the testimony of neighbors, when the new facilities began operating in 2009 the levels of dust and noise increased significantly. The fans made sleeping, conversing and watching TV difficult, and large clouds of grain dust frequently reduced visibility and caused respiratory problems. It was undisputed that Farmway took several steps to reduce noise and dust concerns, and that the facilities complied with all state and federal regulations regarding dust and noise. Nevertheless, the city cited Farmway for violations of both its noise and its nuisance ordinances. Farmway was found guilty of both. Farmway appealed on the grounds that both ordinances were unconstitutionally vague. The district court sided with Farmway and, on appeal, the Court of Appeals affirmed. The city appealed to the Kansas Supreme Court.
To determine if an ordinance is unconstitutionally vague, a Kansas court must make a two-pronged inquiry to (1) determine whether the ordinance gives adequate notice to those tasked with following it; specifically, whether it conveys sufficient definite warning and fair notice as to the prohibited conduct in light of common understanding and practice. (2) the ordinance must be precise enough to adequately protect against arbitrary and discriminatory action by those tasked with enforcing it.
The City’s Noise Ordinance:
Section 1. DISTURBING THE PEACE. It is unlawful for any person to make, continue, maintain or cause to be made or continue any excessive, unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City.
The City’s Nuisance Ordinance:MAINTAINING PUBLIC NUISANCE. Maintaining a public nuisance is by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare. (K.S.A. 21-4106). Maintaining a public nuisance is a Class C violation.PERMITTING PUBLIC NUISANCE. Permitting a public nuisance is knowingly permitting property under the control of the offender to be used to maintain a public nuisance, as defined in Section 9.5 of this article. (K.S.A. 21-4107).
Another North Dakota mineral rights case brought on by fracking
by Gary Taylor
Reep v. State
(North Dakota Supreme Court, December 26, 1014)
Several owners of land next to navigable waters in North Dakota (the “Reep owners”) sued the State, the North Dakota Board of University and School Lands, and the North Dakota Trust Lands Commissioner (“State”), seeking a declaration that the Reep upland owners own the mineral interests under the shore zone of the navigable waters. The State responded that its title to the beds of navigable waters continues to extend, as it did at the moment of statehood, from high watermark to high watermark under the equal footing doctrine.
N.D.C.C. § 47-01-15 provides: “Except when the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on a navigable lake or stream, takes to the edge of the lake or stream at low watermark. All navigable rivers shall remain and be deemed public highways. In all cases when the opposite banks of any stream not navigable belong to different persons, the stream and the bed thereof shall become common to both.”
The State argues N.D.C.C. § 47-01-15 does not convey or grant public resources; rather, the statute is a rule of construction for conveyances of riparian land and clarifies the extent of a grantor’s conveyance to the grantee except when the grant under which the land is held indicates a different intent. The State argues the equal footing doctrine and the anti-gift clause prohibit construing N.D.C.C. § 47-01-15 as a State grant of the mineral interests under the shore zone to private entities. The upland owners countered that the State’s public trust and equal footing obligations relate to the public’s use of waters for “navigating, boating, fishing, fowling and like public uses” and do not relate to the proprietary privileges of ownership of subsurface mineral interests under the shore zone.
The Court looked first to history.
Before North Dakota was admitted to the Union, the United States held the beds of navigable waters in the Dakota Territory from high watermark to high watermark in trust for the future state. Upon admission to the Union, North Dakota was entitled to sovereign ownership of the beds of navigable waters from high watermark to high watermark under the equal footing doctrine. Upon entering the Union on equal footing with the established States, the “rights of riparian or littoral proprietors in the soil below high water mark of navigable waters [were] governed by the local laws.” North Dakota could “resign to the riparian proprietor rights which properly belong to [it] in [its] sovereign capacity,” and was free to allocate property interests in the beds of navigable waters below the ordinary high watermark. However, North Dakota could not totally abdicate its interest to private parties because it held that interest, by virtue of its sovereignty, in trust for the public.
In a prior case the Court said N.D.C.C. § 47-01-15 did not grant an upland owner or the State absolute ownership of the shore zone and emphasized neither party’s interest in the shore zone was absolute. The word “takes” in that statute was ambiguous and the Court construed the statutory language as a rule of construction for determining the boundary for grants of land next to navigable waters. The Court agreed with the State’s position that the State owned the mineral interests under the shore zone to the ordinary high watermark under the equal footing doctrine at the moment of statehood in 1889 and its ownership was thereafter governed by State law, including the anti-gift clause of N.D. Const. art. X, § 18, which precluded the state from allocating or gifting its mineral interests under the shore zone to an upland owner . N.D. Const. art. X, § 18, currently provides:
The state, any county or city may make internal improvements and may engage in any industry, enterprise or business, not prohibited by article XX of the constitution, but neither the state nor any political subdivision thereof shall otherwise loan or give its credit or make donations to or in aid of any individual, association or corporation except for reasonable support of the poor, nor subscribe to or become the owner of capital stock in any association or corporation.
The court concluded N.D.C.C. § 47-01-15 does not convey or allocate the State’s equal footing interest in minerals under the shore zone, which the State owned at the moment of statehood in 1889, to upland landowners on navigable waters in North Dakota. Under the rule of construction for determining boundaries in N.D.C.C. § 47-01-15, however, if the State contractually grants or conveys parts of its equal footing interests to upland owners by deed, subject to the restrictions of the public trust doctrine, and except when the deed provides otherwise, the grantee takes the State’s full interest to the low watermark.
The STROAD…. futon of transportation alternatives!
This article from Atlantic cities caught my eye; because I had never heard the term “STROAD,” and because the relationship between STROADs and land use have been hiding in plain view from me. From the article:
The STROAD design — a street/road hybrid — is the futon of transportation alternatives. Where a futon is a piece of furniture that serves both as an uncomfortable couch and an uncomfortable bed, a STROAD moves cars at speeds too slow to get around efficiently but too fast to support productive private sector investment. The result is an expensive highway and a declining tax base….Anytime you are traveling between 30 and 50 miles per hour, you are basically in an area that is too slow to be efficient yet too fast to provide a framework for capturing a productive rate of return.
What are the STROADs in your community doing to your tax base? Think about the types of development you find along the 45 mph limit STROADs in your community. How much of it that is 20 years old or older looks like it is ready for the wrecking ball already? How many of the businesses along your old STROADS have relocated to your new STROADS, leaving underutilized buildings?
Supreme Court update
We’ve had a bit of action on the four land use related cases pending before the US Supreme Court, discussed here and here. Oral arguments are being held today in the case of Marvin M. Brandt Revocable Trust v. United States. The issue in the case:
Whether the United States retained an implied reversionary interest in rights-of-way created by the General Railroad Right of Way Act of 1875 after the underlying lands were patented into private ownership.
Tomorrow, oral arguments will be held in McCullen v. Coakley, the issues of the case being:
(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.
The case of Mount Holly v. Mount Holly Gardens Citizens in Action was settled prior to oral arguments. A copy of a press briefing about the terms of the settlement is here. The issue of the case was whether disparate impact claims are cognizable under the Fair Housing Act. An interesting audio article about the case is here (approximately 6 minutes).
Appellant in rezoning denial cannot turn appeal into inverse condemnation action
by Gary Taylor
Dahm v. Stark County Board of County Commissioners
(North Dakota Supreme Court, December 19, 2013)
Richard Dahm submitted an application to the County Board for a rezoning to change his property designation from agricultural to residential. Dahm also sought approval of a preliminary plat called Duck Creek Estates, a 99 lot residential subdivision to “provide a rural living environment in a quasi-urban setting . . . .” The land is two miles west of the Dickinson city limits, and located in between Interstate-94 to the north and Highway 10 to the south. The property is adjacent to a previously platted subdivision called Maryville Subdivision. Two public hearings were held before the Planning and Zoning Commission. At the first hearing, the city/county planner recommended denial based on several alleged deficiencies, including: Dahm did not specify which residential district he wanted to rezone his property to; there was no contract with adjacent land owners ensuring access to Highway 10; the application did not indicate whether road and access widths would meet or exceed Stark County regulations; the application did not indicate what type of bridge would overpass Duck Creek; the application did not delineate the location of wetlands or flood plains or include a flood plain analysis and environmental study; development could result in “pinching” the water flow of Duck Creek; and no potable water was available at the site. The planner also found the application was inconsistent with the Stark County Comprehensive Plan.
Rather than making a formal recommendation to the County Board, the Zoning Commission continued the hearing to allow Dahm to revise his application. Dahm submitted additional information, including a letter responding to the deficiencies, a development narrative, an application package addendum, and proposed zoning maps. The Southwestern District Health Unit also submitted a letter stating that Dahm’s plans for a sewer system were satisfactory. Prior to the second public hearing, the city/county planner again recommended denying Dahm’s application based on several deficiencies, including: the lack of a traffic impact analysis; road access did not meet Stark County standards; the application did not include the location of wetlands and flood plains; the absence of a flood plain elevation study to ascertain whether the project met the requirements of the National Flood Insurance Program and state law; the absence of a field wetland delineation for use during U.S. Army Corps of Engineers 404 Permit Process; no potable water; and that the application was inconsistent with the Stark County Comprehensive Plan.
At the second public hearing, Dahm’s attorney stated that an adjacent landowner agreed to provide highway access, on the condition that the adjacent owner’s property could also be re-zoned. Dahm’s attorney also claimed traffic density would be about 925 vehicles per day. Members of the neighboring Maryville subdivision voiced their opposition to the application based on concern over traffic and dust control. The planner also spoke in opposition to the application. Members of the Planning and Zoning Commission reiterated their trepidation about traffic access points, increased traffic density, and the lack of a study concerning the wetlands and flood plains. Based on these concerns, the Zoning Commission voted 8-0 to recommend a denial of the zoning amendment request. The County Board adopted the recommendation of the Zoning Commission and denied Dahm’s request by a vote of 5-0. In voting to deny the application the County Board also included a provision that Dahm could not appear before the County Board for six months.
Dahm appealed the County Board’s decision to the district court and also sought to introduce evidence of similar zoning requests that had been previously approved by the County Board. The court denied Dahm’s motion to submit additional evidence and affirmed the County Board’s decision to deny the application for zoning change. Dahm appealed to the North Dakota Supreme Court.
The Court first noted that in framing its zoning decisions, the Zoning Committee and County Board looked to the Stark County Comprehensive Plan, a growth management policy amended in 2010 based on the county’s rapid growth in the agricultural and energy sectors. In its official recommendation, the Zoning Commission stated “there continues to be concerns with density, traffic, and sewer and water issues for residential development of the property.” Additionally, the Zoning Commission determined the application was inconsistent with at least four goals of the Comprehensive Plan related to compatibility of environmental characteristics of the site, adequacy of sewer and water services, the preservation of open spaces and natural resources, and the prohibition against locating development away from paved roads. The Court concluded that the procedure followed by the county “characterizes an exercise of discretion” that is “the product of a rational mental process by which the facts and the law relied upon are considered together . . . .”
Dahm also argued that when a subdivision plat addresses all issues listed in a county’s subdivision regulations it becomes the “mandatory duty” of the zoning authority to approve a subdivision plat. The Court disagreed, stating that “The board shall consider all other relevant facts and determine whether the public interest will be served by the subdivision. . . . If it finds that the proposed plat does not make appropriate provisions, or that the public use and interest will not be served . . . then the board of county commissioners shall disapprove the proposed plat.” The Zoning Commission and the County Board did take into account such factors as open spaces, drainage, streets, water supplies, and waste disposal, in addition to other considerations, in denying the application. Because it found Dahm’s application was at odds with the Comprehensive Plan, it was under no duty to approve the request.
Finally, Dahm argued the six-month restriction from appearing before the County Board was not only arbitrary, capricious, and unreasonable, it was also unconstitutional because a new ordinance (increasing minimum lot sizes from 7,000 square feet to 5 acres) was passed during the six-month prohibition period. Because Dahm purchased the property in reliance on the original ordinance and subdivision regulations, the County Board’s denial deprived Dahm of all reasonable use of the property. The Court stated that the moving party in a denial of a change in zoning request cannot turn his appeal into an inverse condemnation action, and declined to address Dahm’s claim of an unconstitutional taking of his property. It found that the decision to implement a six-month appearance restriction was also not arbitrary, capricious, or unreasonable. The Board noted that Dahm had presented the Duck Creek Estates project three months in a row without adequately resolving the issues of roads, sewage, water, and population density. As the district court reasoned, “the time and effort expended by the Stark County Zoning Board, the City and County Planner, and by the Stark County Commission persuades the Court that there was no violation of Stark County’s authority and obligation to regulate land use . . . by their decision to impose the six month prohibition.” Given the repeated attempts to re-zone and the failure to make the requisite adjustments, it was not unreasonable for the County Board to implement a six-month wait period.
Announcing Spring 2014 Intro to Planning and Zoning workshops
The dates and locations for the Spring 2014 Planning and Zoning for Local Officials workshops have been set:
March 31, 2014 (Monday) Okoboji, Arrowwood Resort
April 1, 2014 (Tuesday) Carroll, Carrollton Inn
April 7, 2014 (Monday) Decorah, Hotel Winneshiek
April 8, 2014 (Tuesday) Clear Lake, Best Western Holiday Lodge
April 14, 2014 (Monday) Cedar Rapids, Clarion Hotel and Conference Center
April 21, 2014 (Monday) Sioux City, Bev’s on the River
April 22, 2014 (Tuesday) Creston, Supertel Inn and Conference Center
All workshops begin with registration and a light supper at 5:30 p.m. The program begins at 6:00 p.m. and concludes by 8:45 p.m. The registration fee is $65 per individual. This fee is reduced to $50 per individual if a city or county registers 5 or more officials to attend. The fee covers the workshop instruction, workshop materials, and supper.
For more information, and the online registration link, click on the “Intro to Planning and Zoning Workshops” tab at the top of this page. Note that we are moving exclusively to an online registration system for the workshops this year. When you register you will have the option to pay by credit card, or to be invoiced via email.