The title of my March 11 post was “Waterloo nears restrictions on payday lenders, pawn shops.” Perhaps that conclusion was premature. Not all Waterloo council members are sold on the restrictions. The latest article from the Waterloo Cedar-Falls Courier is here.
Month: March 2014
Activities of landowner, not intent, determine whether “land disturbing activity” has taken place
by Rachel Greifenkamp
Town of Raymond v. Mary Jane Vogt and Raymond R. Vogt
(Wisconsin Court of Appeals, January 22, 2014)
The Town of Raymond, WI has an ordinance that prohibits landowners from engaging in land-disturbing construction activities that cause runoff into state waters without first obtaining a permit. Raymond and Mary Jane Vogt testified that they removed weeds and thistles, moved land in order to vertically install a large steel plate five to eight feet from the neighbor’s property line, and filled a ten-by-twenty-foot area of the ditch with gravel and multiple truckloads of dirt to enhance a drainage ditch between their property and their neighbors property. All of this work was performed without a permit. A trial court determined this to be “land-disturbing activity” within the meaning of the term found in the Town ordinance, The trial court ordered the Vogts to allow Town agents to inspect their property and develop a remedial plan, which the court then approved and ordered the plan to be carried out at the expense of the Vogts. In all, the trial court awarded the Town $16,676 for expenditures and $45,131.50 for daily forfeitures and costs, totally nearly $52,000 to be paid by the Vogts. The Vogts appealed.
The Town ordinance defined “land disturbing activity” as “any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or nonvegetative soil cover, that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state.” At the trial court hearing, the town of Raymond’s engineer testified that the changes made by the Vogts restricted water flow and led to an increase in water on their neighbors property and that it reduced the amount of water flowing from the Vogts’ property into the Root River (a state waterway). The Vogts countered by saying that the activities were performed to clean and restore the existing drainage ditch, and were intended to reduce erosion. The trial court concluded – and the Court of Appeals affirmed however – that the activities of a party are what determines whether a permit is necessary to proceed. The trial court found that the Vogts performed clearing, excavating, filling, and grading on the property that changed the topography by more than a foot, and that the runoff from the Vogts’ property drained into the Root River. The Court of Appeals concluded that the evidence sufficiently proved that the Vogts’ work constituted non-exempt land-disturbing construction activities. The holding in favor of the Town of Raymond was held by the Court of Appeals.
Spacing restrictions on digital billboards do not violate First Amendment
by Rachel Greifenkamp
Hucul Advertising, LLC v. Charter Township of Gaines
(Federal 6th Circuit Court of Appeals, February 5, 2014)
Hucul Advertising, LLC applied for permission to construct a billboard in the Charter Township of Gaines, MI. The application was denied by the Township on the ground that the billboard would violate Chapter 17 of the Gaines Township Zoning Ordinance. At the time, the ordinance permitted billboards only on property that was adjacent to the M-6 highway, and Hucul’s property did not satisfy the adjacency requirement. Hucul Advertising then applied to build a digital billboard on the same property. That application was also denied, both because of the adjacency requirement, and because the proposed digital billboard would be located within 4,000 feet of another digital billboard, which would also be a violation of the ordinance. Hucul then applied to the Zoning Board of Appeals (“ZBA”) for relief seeking approval to install the digital billboard, which the ZBA denied. The Township later amended the ordinance to require that any proposed billboard be built within 100 feet of the M-6 and to clarify that, in order for a parcel to be “adjacent” to the M-6, it must “abut and have frontage on the M-6.”
Hucul challenged the ZBA decision claiming that the ordinance violated the First Amendment, claiming that the requirement of 4,000 feet between billboards is an impermissible restriction on commercial speech in violation of the First Amendment, that the Township treated land adjacent to public property differently from land adjacent to private property in violation of Equal Protection, and that Hucul’s civil rights by enforcing the ordinance. The Township removed the case from state court to federal district court. The district court held that the 4,000-foot spacing requirement constituted a valid “time place, and manner” restriction on speech and did not violate the First Amendment, and also dismissed the other claims.
The Sixth Circuit Court of Appeals agreed that the “time, place, and manner” test was appropriate in this situation. Hucul argued that the Central Hudson test for the regulation of commercial speech was the appropriate test; however, the Court recognized that the Township’s regulation did not distinguish between commercial and non-commercial billboards. in applying the “time, place and manner” test the Court affirmed that aesthetics and traffic safety are significant interests that warrant government regulation. The Court refused to invalidate the 4,000 foot spacing requirement, stating that just because state law would permit a lesser spacing requirement, evidence presented in district court supported a greater spacing for digital billboards because their increased visibility and changing copy make them greater distractions to motorists. Finally, the regulation leaves open ample alternative avenues of expression because the regulations do not prohibit handing out leaflets or public speech in this or other locations. The Court of Appeals affirmed the district court decision in favor of the Township.
Limiting percentage of rental units allowed per block was valid exercise of police power
by Rachel Greifenkamp and Gary Taylor
(Minnesota Court of Appeals, February 24, 2014)
In the City of Winona, MN, there exists an ordinance that limits, in certain districts of the city, the number of lots on a block that are eligible to obtain certification as a rental property. Based on the findings from the city’s planning commission and a Parking Advisory Task Force that was formed to consider the issues of increased parking demands, the City found that rental-housing units comprised about 39% of the City’s total housing units, but that these rental properties comprised 52% of the complaints received by the Community Development Department. Based on data from 2004, the planning commission found that 95 of the 99 calls for police service based on noise and party-related complaints involved rental properties. They also found that 52% of the zoning violations that resulted in written violations were for rental properties. In 2005, the idea of restricting the number of rental properties per block was suggested. The Parking Advisory Task Force suggested that the number of rental units be restricted to 30% of the total properties on any given block. The task force adopted a motion to forward a “30% rule” to the planning commission for its consideration. The planning commission voted to recommend the 30% rule to city council, and the council subsequently passed the 30% rule. The three appellants challenging the 30% rule in this case were the owners of three houses that were purchased after the 30% rule was adopted. In January of 2013 the district court denied the appellants’ motion that the 30% rule was an invalid exercise of the City’s broad police power, and that it violated their Equal Protection, Substantive Due Process, and Procedural Due Process rights under the Minnesota Constitution, and granted summary judgment to the city. The appellants then took their case to the Minnesota Court of Appeals.
Police Powers. The Court of Appeals determined that the 30% rule was, in fact, an authorized exercise of police power. The term “police power” means simply the power to impose such restrictions upon private rights as are practically necessary for the general welfare of all. “The development of the law relating to the proper exercise of the police power of the state clearly demonstrates that it is very broad and comprehensive, and is exercised to promote the general welfare of the state….[T]he public has a sufficient interest in rental housing to justify a municipality’s use of police power as a means of regulating such housing.”
Equal Protection. In order for an equal protection challenge to be valid the appellant must show that “similarly situated persons have been treated differently.” Similarly situated means that the two groups in question are alike in all relevant respects. The Court concluded that the 30% rule is not invalid on its face:
The ordinance is facially neutral and applies equally to all property owners in the regulated districts. The ordinance sets a 30% cap, but it does not define or predetermine which lots will be certified. That determination is made based on the changing facts and circumstances on each block, and not based on the ordinance or the characteristics of lot owners. The fact that the number of lots that may be certified might be less than the number of property owners who desire certification is not a class-based distinction between two groups of property owners.
The Court also concluded that the 30% rule was not discriminatory in the manner it was being applied by the city. The Appellant did not show that the city “has done anything other than apply the mathematical formula on a first-come, first-served basis. Appellants’ real complaint is about the effect of an otherwise neutral ordinance on their particular circumstances, which does not give rise to an equal protection claim.”
Substantive and Procedural Due Process. The substantive due process and procedural due process claims were also considered invalid. The appellants argued the the 30% rule violated their right to rent their property, but such a right is not a “fundamental right” protected by the Minnesota Constitution. Unless a fundamental right is at stake, substantive due process requires only that the statute not be arbitrary or capricious. The Court concluded that the 30% rule was adopted after a long, deliberate information-gathering process that considered public input, data, and expert review, and was thus not arbitrary or capricious.
As for procedural due process, the appellant’s argued that the 30% rule improperly delegates the power of deciding whether or not they may receive a license to their neighbors, but the Court reasoned otherwise because the “neighbors” (owners of certified rental properties) do not determine which other lots may be certified. “The certified-property owners’ views regarding whether a particular lot should be certified as a rental property are irrelevant; they can neither grant certification by consenting to it nor prevent certification by denying consent.”
The Minnesota Court of Appeals affirmed the district court’s award of summary judgment in favor of the city because the adoption of the ordinance was an authorized exercise of its police power and because the appellants did not met the burden to show that the ordinance is unconstitutional.
News from around Iowa: Dubuque also considers limitations on payday lenders
Dubuque is also considering zoning restrictions on payday lenders. This comes after last week’s story that a Waterloo payday lending ordinance is before the city council. The Dubuque story from KCRG is here.
News from around Iowa: Iowa City neighborhood to be considered for historic preservation district
The Goosetown neighborhood, and the area around Mann Elementary have been proposed by the Iowa City Historic Preservation Commission to be identified as a new conservation district. The Iowa City planning and zoning commission will consider the proposal during a meeting in April, and, if approved, the proposal will move to the City Council for consideration. The article from the Iowa City Press-Citizen is here.
Denial of license to mobile food vendor not a violation of Equal Protection or Dormant Commerce Clauses
by Rachel Greifenkamp
The Dog Pound, LLC v. City of Monroe, Michigan
(Federal 6th Circuit Court of Appeals, March 10, 2014)
In Monroe, Michigan The Dog Pound, an aspiring hot dog vendor, applied for and was denied a license under Monroe’s Hawker, Peddler, and Transient Merchant ordinance. The ordinance, in 2009 when the license was applied for, regulated street-vendors’ operations and required additional permission (not just a license) if the vendor wanted to run their vending business in a specific Restricted Area (an area that covered most of downtown Monroe). It also established a 10 minute limit on any activity by a vendor at any one location within the city. The Dog Pound alleged that the ordinance was unconstitutional because it violated the Equal Protection Clause, the Due Process Clause, and the dormant Commerce clause (all appear in both the United States Constitution as well as the Constitution of Michigan). A district court granted the City of Monroe’s motion for summary judgment and dismissed the case.
The Dog Pound claimed that the ordinance violated the Equal Protection Clauses of both the United States and the Michigan Constitutions because it created an illegal classification, itinerant merchants, and treated them differently from permanent business owners. Originally, The Dog Pound sought a declaratory judgment that the ordinance was invalid or a writ of mandamus. In 2011 the City of Monroe and The Dog Pound began settlement negotiations, meanwhile, the city amended the ordinance, eliminating the restricted area. When the negotiations failed, the court took up the question of preliminary injunction, and ended up denying The Dog Pound’s motion stating that the amendment to the ordinance “essentially moots the plaintiff’s arguments.” The Dog Pound then filed two amended complaints. (1) A violation of the Due Process clauses of the United States and Michigan Constitutions, alleging that the sole purpose of the act was to protect local static businesses against competition, (2) A violation of the dormant Commerce Clause, alleging that the disparate treatment of itinerant merchants discriminates against and burdens out-of-state businesses in favor of local businesses. The federal district court granted the City’s motion for summary judgment.
The Sixth Circuit Court of Appeals heard the case on appeal and tackled each of the three claims separately. (1) Equal Protection. The Dog Pound applied for a license under the amended ordinance, in 2001, but the application was incomplete. The city pointed out the deficiencies in the application and how each could be fixed, but The Dog Pound failed to complete the application. Therefore, The Dog Pound couldn’t possibly prove that it had been treated differently from other businesses that had applied for the license. The court stated that “There is therefore no issue of material fact and the district court was correct to grant summary judgment.” (2) Dormant Commerce Clause. The Dormant Commerce Clause is designed to ensure that a state cannot place oppressive and unnecessary burdens on out-of-state businesses. Both in-state and out-of-state businesses had to apply for a license as well as were subject to the 10-minute rule. Because the ordinance did not treat out-of-state businesses any different from in-state businesses, this claim was considered irrelevant. (3) Due Process and Equal Protection, Michigan Constitution. Finally, The Dog Pound argued that the district court did not properly address its claims for relief arising under the Due Process and Equal Protection clauses of the Michigan Constitution. However, because The Dog Pound raised no argument for this on appeal, the issue was waived. The Court of Appeals for the Sixth Circuit ultimately affirmed the district court’s grant of summary judgment in favor of the City of Monroe.
ND Attorney General: Junk ordinance not “zoning” to allow for use in extraterritorial zoning area
by Gary Taylor
North Dakota Attorney General Letter Opinion 2014-L-6 (March 13, 2014)
N.D.C.C. § 40-06-01(2) provides that the governing body of a municipality has general police power jurisdiction “[i]n and over all places within one-half mile . . . of the municipal limits for the purpose of enforcing health ordinances and regulations, and police regulations and ordinances adopted to promote the peace, order, safety, and general welfare of the municipality.” A city is also authorized to apply its zoning and subdivision regulations up to four miles beyond the city limits, depending upon the population of the city.
The city of Grand Forks’ extraterritorial zoning jurisdiction extends to four miles beyond the city limits. In 1978, the North Dakota Supreme Court determined that a city has complete zoning control in this extraterritorial zoning area; however, since state law changes in 2009, the city and the county now exercise joint jurisdiction within the two to four mile area. The city of Grand Forks and Grand Forks County have signed a zoning and subdivision agreement which provides that the “[c]ity shall be responsible for all zoning and subdivision administration, activities and regulation for areas within the 2 mile area beyond the city limits.” Grand Forks County has argued that the city’s nuisance ordinances regulating the accumulation of junk may be treated as zoning ordinances pursuant to the city’s general authority to regulate land and thus be enforced in the city’s extraterritorial zoning area. The North Dakota Attorney General (AG), however, disagrees.
The AG looked to the North Dakota Supreme Court case of Jamestown v. Tahran, involving ordinances of the city of Jamestown that prohibited the storage or accumulation of trash, rubbish, junk, junk automobiles, or abandoned vehicles on any private property. The court rejected the argument that the ordinance constituted a zoning ordinance, stating, “[t]he plain language of the ordinance . . . indicates it is a criminal ordinance generally applicable throughout the City . . . and not a zoning ordinance.” Similarly, the AG considers the plain language of the city of Grand Fork’s ordinances regarding the accumulation of junk to indicate they are criminal ordinances and not zoning ordinances.
The AG also noted that because the city’s junk ordinances are not zoning ordinances, there is no limitation on the county’s ability to enforce its own junk ordinances within the extraterritorial area in question.
News from around Iowa: Waterloo nears restrictions on payday lenders, pawn shops
According to this article from the Waterloo-Cedar Falls Courier, the Waterloo Planning and Zoning Commission voted unanimously to adopt zoning revisions that would severely restrict the establishment of new payday lenders and pawn shops. The amendments will go to the city council in April.
Waterloo’s proposed zoning ordinance governing “deferred deposit services” would not allow additional payday lenders or pawn shops to locate in the downtown C-3 zoning district or S-1 shopping center districts. They would only be allowed in the C-2 commercial district or manufacturing zones. In addition, new payday lenders or pawn shops could not open within 600 feet of each other, liquor stores or bars, adult uses or any of a long list of “protected uses” in the city.
US Supreme Court deals blow to rails-to-trails efforts
by Gary Taylor
The US Supreme Court has issued its opinion in the rails-to-trails case discussed previously in this blog. In an 8-1 decision, the Court sided with the landowner that claimed the railroad corridor reverted to the landowners when it was abandoned by the railroad. This decision has the potential to block plans for the completion of several currently planned rail trails, and would also threaten existing rail trails and public highways across America that utilize federally granted rights-of-way. According to the Rails-to-Trails Conservancy, there are hundreds of abandoned railroad corridors across the country that have been converted into publicly accessible trails. Some of the better-known rail-trails that occupy federally-granted rights-of-way include the George S. Mickelson Trail in South Dakota, the Foothills Trail and the John Wayne Pioneer trails in Washington, the Weiser River Trail in Idaho and the Rio Grande Trail in Colorado.
Marvin M. Brandt Revocable Trust v. United States
(United States Supreme Court, March 10, 2014)
(Adapted from the syllabus of the Court)
Congress passed the General Railroad Right-of-Way Act of 1875 to provide railroad companies “right[s] of way through the public lands of the United States.” One such right of way, obtained by a railroad in 1908, crosses land that the United States conveyed to the Brandt family in a 1976 land patent. That patent stated, as relevant here, that the land was granted subject to the railroad’s rights in the 1875 Act right of way, but it did not specify what would occur if the railroad later relinquished those rights. Years later, a successor railroad abandoned the right of way with federal approval. The Government then sought a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right of way, including the stretch that crossed the land conveyed in the Brandt patent. Petitioners contested the claim, asserting that the right of way was a mere easement that was extinguished when the railroad abandoned it, so that Brandt now enjoys full title to his land without the burden of the easement. The Government countered that the 1875 Act granted the railroad something more than a mere easement, and that the United States retained a reversionary interest in that land once the railroad abandoned it. The District Court granted summary judgment to the Government and quieted title in the United States to the right of way. The Tenth Circuit affirmed.
The United States Supreme Court held that the right of way was an easement that was terminated by the railroad’s abandonment, leaving Brandt’s land unburdened. According to the Court, the Government loses this case in large part because it won when it argued the opposite in Great Northern R. Co. v. United States. There, the Government contended that the 1875 Act (unlike pre-1871 statutes granting rights of way) granted nothing more than an easement, and that the railroad in that case therefore had no interest in the resources beneath the surface of its right of way. This Court adopted the Government’s position in full. It found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest, agreed with the Government that cases describing the nature of rights of way granted prior to 1871 were “not controlling” because of a major shift in congressional policy concerning land grants to railroads after that year, and held that the 1875 Act “clearly grants only an easement.” Under well-established common law property principles, an easement disappears when abandoned by its beneficiary, leaving the owner of the underlying land to resume a full and unencumbered interest in the land.
The Government asked the Court to limit Great Northern’s characterization of 1875 Act rights of way as easements to the question of who owns the oil and minerals beneath a right of way. But nothing in the 1875 Act’s text supports that reading, and the Government’s reliance on the similarity of the language in the 1875 Act and pre-1871 statutes directly contravenes the very premise of Great Northern: that the 1875 Act granted a fundamentally different interest than did its predecessor statutes.
Finally, later enacted statutes, do not define or shed light on the nature of the interest Congress granted to railroads in their rights of way in 1875. They instead purport only to dispose of interests (if any) the United States already possesses.
Writing in a lone dissent, Justice Sotomayor argued that the majority opinion placed on the Great Northern precedent “more weight than that case will bear.” The Court has long considered railway rights apart from the usual common-law regime, she said. “By changing course today, the Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”