Category: Federal courts

Planning Board denial not a “final action” under Federal Telecommunications Act when review by Board of Appeals required by ordinance

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by Hannah Dankbar and Gary Taylor

Global Tower Assets, LLC; Northeast Wireless Networks, LLC v. Town of Rome
Federal 1st Circuit Court of Appeals, January 8, 2016

Global Tower Assets and Northeast Wireless Networks obtained a leasehold interest in Rome, Maine. According to Rome’s Ordinance applicants must get permission from Rome Planning Board to build a wireless communication tower.

The Ordinance includes a section that reads, “[a]dministrative appeals and variance applications submitted under this Ordinance shall be subject to the standards and procedures established by the Town of Rome Board of Appeals.”

The companies first asked for permission from the Planning Board to build the tower on April 8, 2013. The Board discussed the proposal on May 20, 2013 and held other meetings over the next few months. On February 10, 2014, the Planning Board voted to deny the application because the application was not complete. On March 10, 2014 the Planning Board published their decision. The decision was sent to the Board of Appeals for Review. The next day, the companies filed suit in the United States District Court for the District of Maine.

Part of their suit included complaints under the Telecommunications Act (TCA) of 1996. The TCA provides relief to those who are denied permission to build telecommunication facilities at the state or local level trough “final action”. However, the TCA does not define “final action”.  In this case, the question is whether the administrative process ended. The companies filed their TCA challenge to the Town of Rome Planning Board’s decision before the decision was reviewed by the local board of appeals. In Maine there is a general requirement that land use and zoning appeals are first heard by a zoning board of appeals before they can be litigated in state court.  Thus under Maine law “Rome necessarily made review by the board of appeals a prerequisite to judicial review.” There was an opportunity for the Planning Board’s decision to be overturned through an administrative (rather than judicial) process, meaning that the decision of the Planning Board was not a “final action” within the meaning of the TCA. The legislative history of the TCA does not reject a two-step administrative process at the local level to determine “final actions.”  Because the administrative process, as defined by Rome’s Ordinance was not complete the District Court was correct to dismiss the complaints.

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City demonstrates negative secondary effects of adult entertainment establishment sufficient to overcome preliminary injunction

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by Hannah Dankbar

BBL, Inc. and Butler v. City of Angola
Federal 7th Circuit Court of Appeals, December 7, 2015

Alva and Sandra Butler own BBL, Inc. which bought a restaurant in Angola, Indiana with plans to convert it to an adult-entertainment venue. Immediately after the purchase the City of Angola amended its zoning ordinance to prohibit this use of the property. BBL, Inc. sued the City claiming a First Amendment violation and requesting a preliminary injunction be issued to prevent enforcement of the ordinance.

As part of the new ordinance Angola requires sexually oriented businesses to locate “at least 750 feet from every residence.” There is no debate that BBL does not meet this requirement.

In regards to the First Amendment claims BBL claimed; (1) the new licensing and zoning amendments violated its right to expressive conduct; and (2) the permit requirement was an impermissible prior restraint on speech.

Angola requested judgment on the applicable legal test (from City of Renton v. Playtime Theatres, Inc.) in two separate motions. The steps in this analysis require Angola to show: (1) the challenged  requirements are aimed at reducing the negative secondary effects of adult-entertainment establishments; (2) the requirements are narrowly tailored to serve to that purpose: and (3) the zoning scheme leaves open reasonable alternative sites for this form of expression.

At the preliminary injunction stage BBL reserved the right to later challenge the factual basis on which Angola adopted its ordinance (whether the city’s evidence of negative secondary effects was sufficient) but presented no such evidence at that time. Tactically this was a mistake because, the city provided an extensive (but boilerplate) catalog of secondary effects research.  By not challenging the city’s evidence at that time BBL “radically reduced its chances of obtaining a preliminary injunction.”  In fact BBL’s preliminary injunction was not granted by the trial court, and the 7th Circuit concurred.

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

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by Hannah Dankbar and Gary Taylor

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

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

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

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

The trial court’s decision was vacated and remanded.

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Co op days shy of being able to claim adverse possession

vaagea

by Andrea Vaage and Gary Taylor

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

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

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

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

The decision of the district court was affirmed.

http://media.ca8.uscourts.gov/opndir/15/10/143025P.pdf

 

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Links to law presentations from 2015 APA-Iowa Annual Conference

Gary Taylor

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

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

Iowa APA 2015 Cell Towers
Iowa APA 2015 Signs

Friday morning AICP Law session by Gary Taylor

Iowa APA 2015 Law session

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Weeds are not protected speech or expression

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by Hannah Dankbar

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

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

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

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

The fence ordinance reads:

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

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

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

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

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

The decision was upheld.

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Fear about dangers in the vicinity of property insufficient to constitute nuisance

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by Andrea Vaage

Smith & Wunderlich v Conoco Phillips Pipe Line Company
Federal 8th Circuit Court of Appeals, September 15, 2015

Conoco Phillips owns a pipeline constructed in 1930 that runs through part of West Alton, a small town in Missouri. A leak was discovered near the town in 1963. The source of leak was repaired, but no remediation efforts were made to clean up the spill. Contaminants from the spill were discovered at a residence near the spill in 2002. Phillips purchased that residence and two others. Under supervision of the Missouri DNR, the buildings were demolished; 4,000 cubic yards of soil was removed; and monitoring wells were set up to test for chemicals of concern (COCs) such as benzene, toluene, ethyle benzene, xylenes, and lead.

Plaintiffs, the Smiths and Wunderlichs, property owners within 1.1 mile radius of contamination site, filed a class action suit in district court October 2011. Their complaint identified two separate classes, each including property owners within a 1.1 mile radius of the contamination site. The first class sought injunctive relief and monetary damages for creation of a nuisance and negligence for remediation. The second class sought compensation for ongoing expenses of medical monitoring due to potential exposure to pollutants from the pipeline leak. The district court certified the first class, but not the second. In certifying the first class the court relied on evidence and expert testimony that contaminants were found in the monitoring wells, that pollutants could continually shift, and that MTBE, a gasoline additive, had been found at one residence one quarter mile away from the contamination site. Phillips appealed the court’s decision to certify the first class.

In cases of certification, the district court is granted broad discretion. A higher court will only reverse a certification where there has been an abuse of discretion or an error of law. Four standards must be met to certify a class: numerosity, commonality, typicality, and adequacy of representation.

In order for commonality to be met, the plaintiff’s must show that all class members suffered the same injury. The plaintiff’s demonstrated contamination by citing the MBTE found on the Wunderlichs’ property. However, there was no MBTE found at the contamination site. None of the chemicals found at the contamination site were detected at any of the class members’ property; however, plaintiffs’ claim that physical invasion is not required for the contamination site to be a nuisance, because the fear of contamination depressed their property values. The Court cited recent cases that establish that fear alone is not enough to meet the requirement that a nuisance be visible or capable of physical detection. “Negative publicity resulting in unfounded fear about dangers in the vicinity of the property does not constitute a significant interference with the use and enjoyment of land:  The potential for contamination does not amount to sufficient proof of a nuisance. Since plaintiff’s were unable to establish contamination on the class land, the nuisance claim fails.

The Court determined the fear of contamination without sufficient supporting proof was not enough to establish a claim for common law nuisance. The Court found the district court ruling certifying the class was an abuse of discretion. The case was reversed and remanded.

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Fed 6th Circuit reviews use of miniature horse as service animal under ADA and FHAA (Part II – FHAA claims)

Gary Taylor

by Gary Taylor

Anderson v. City of Blue Ash
Federal 6th Circuit Court of Appeals, August 14 2015

[Note: This is Part II of a lengthy case.  Yesterday’s post gives the facts of the case and reviews the decision on the Americans with Disabilities Act claims.  Today’s post is on the Fair Housing Act Amendments claims.]

The FHAA makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such a dwelling because of a handicap,” which includes “refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”  The courts have interpreted this to allow three different types of claims: (1) reasonable accommodation, (2) disparate treatment, and (3) disparate impact.  The Anderson made arguments on all three.

Reasonable accommodation. Unlike the ADA, the FHAA does not have minimum regulatory requirements for animals to qualify as a reasonable accommodation.  Under this FHAA claim, a municipality has an affirmative duty…”to afford its disabled citizens reasonable accommodations in its municipal zoning practices if necessary to afford such persons equal opportunity in the use and enjoyment of property.” The city argued that C.A. did not need therapy with a horse at her house but rather could travel to a local farm or stable.  It also argued that accommodation at the house was unnecessary because C.A. can ambulated and otherwise function without the horse.  The Andersons contended that the accommodation was necessary for C.A. to play independently in her backyard as a non-disabled child could, and that therapy at a farm or stable is no substitute for therapy at home.

The 6th Circuit found that summary judgment for the city (as was granted by the district court) was inappropriate because there were sufficient facts to indicate that the Andersons might win at trial.  In so ruling, the 6th Circuit observed that the FHAA requires accommodations “that are necessary to achieve housing equality, not just those accommodations that are absolutely necessary for the disabled individual’s treatment or basic ability to function.”

As to the “reasonableness” of the accommodation, the 6th Circuit found that factual issues “pervade the question of the accommodation’s reasonableness.”  The record needs more development on whether C.A.’s therapy would be diminished by traveling to receive therapy at another location, and whether the city’s zoning scheme would be “fundamentally altered” by allowing the horse.  “Requiring public entities to make exceptions to their rules and zoning policies is exactly what the FHAA does…[it doesn’t mean that] any modification permitting a horse necessarily amounts to a fundamental alteration.”

Disparate treatment.  This claim failed for the same reason that the Anderson’s claim for intentional discrimination under the ADA failed: there was no evidence that the city harbored discriminatory animus against the disabled.

Disparate impact.  This claim also failed.  The Andersons failed to recognize that the ordinance in question specifically exempts any animals protected by federal law, including the FHAA; thus it has less of an impact on disabled individuals than on the general public.

The 6th Circuit reversed the district court’s grant of summary judgment and remanded for further proceedings.

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Fed 6th Circuit reviews use of miniature horse as service animal under ADA and FHAA (Part I – ADA claims)

Gary Taylor

by Gary Taylor

Anderson v. City of Blue Ash
Federal 6th Circuit Court of Appeals, August 14 2015

[Note: This is a lengthy case, but it is a good review of issues with “unusual” service animals that occasionally arise.  Today’s post is on ADA.  Next post will be on FHAA]

Ingrid Anderson’s minor daughter (initials C.A.) suffers from a number of disabilities that affect her ability to walk and balance independently.  She keeps a miniature horse at her house as a service animal.  The horse enables C.A. to play and get exercise in her backyard without assistance from an adult.

Since acquiring the horse in 2010 the Andersons and the city of Blue Ash, Ohio have had continual disagreements about allowing the horse on the property.  In 2013 the city passed an ordinance banning horses from residential property, then criminally prosecuted Anderson for violating it.  Anderson’s defense was that the Americans with Disabilities Act (ADA) and the Fair Housing Amendments Act (FHAA) both entitle her to keep the horse at her house as a service animal.  The Hamilton County Municipal Court found Anderson guilty of the criminal complaint.  Andersons brought their own action federal district court on ADA and FHAA claims, but the district court granted summary judgment for the city finding that the claims were barred by the determination of the issues (res judicata) in Anderson’s criminal conviction in municipal court.  Andersons appealed.  After reversing the district court’s conclusion on the res judicata claim (for various reasons beyond the interest of most readers of this blog) the 6th Circuit went on to consider the specifics of the Andersons’ ADA and FHAA claims.

ADA – Miniature horses as service animals. The ADA prohibits entities from discriminating against individuals with disabilities by, including other actions, “failing to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities….” The regulations governing miniature horses allow them for use as service animals if the horse “has been individually trained to do work or perform tasks for the benefit of the individual with a disability,” provided that the horse and the requested modification also satisfy certain “assessment factors.”  The assessment factors to be considered are:

  1. the type, size, weight of the horse, and whether the facility can accommodate these features;
  2. whether the handler has sufficient control of the horse;
  3. whether the horse is housebroken; and
  4. whether the horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.”

The ADA thus requires a highly fact-specific inquiry, and decisions must be made on a case-by-case basis.  After lengthy discussion of each of these factors, the 6th Circuit concluded that the district court had not sufficiently developed the factual record concerning the Anderson’s situation, and thus summary judgment for the city was inappropriate.

ADA – Intentional discrimination. The Andersons also raised an intentional discrimination claim under the ADA.  For such a claim to succeed the Andersons need to have proven that:

  1. C.A. has a disability;
  2. she is otherwise qualified; and
  3. she was being … subjected to discrimination because of her disability.

Courts have interpreted this to mean that “animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.”  Further, it must be shown that the discrimination was “intentionally directed toward him or her in particular.”

After examining the evidence the 6th Circuit concluded that the intentional discrimination claim failed because the Andersons could not prove factor #3.  The city’s actions were brought about by citizen’s complaints of the unsanitary conditions caused by animal waste in the Andersons’ backyard.  The city council decided not to take action on these complaints until the Andersons acquired a second horse and neighbors made additional health complaints. The sequence of events was consistent with the city responding to legitimate concerns of its citizens, and provided no basis for an inference that the city’s actions were “because of C.A.’s disability.”

 

 

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Federal district court should not decide state law claims associated with nude dancing establishment suit

Gary Taylor

by Andrea Vaage

Green Valley Investments v Winnebago County
Federal 7th Circuit Court of Appeals, July 27, 2015

Stars Cabaret, a nude dancing establishment owned by Green Valley Investments, opened in Winnebago County, Wisconsin in 2006. At that time, Winnebago County regulated adult entertainment establishments under Ordinance 17.13, which required the establishment of an “adult entertainment overlay [AEO] district.” The AEO district was to be located within an at-the-time undefined “B-3 Highway Business District.” A conditional-use permit issued by the county to the operator of the business was also needed, which, among other things, required that no alcoholic beverages be sold in the AEO district.

The cabaret offered nude dancing and also served alcoholic beverages. The cabaret never sought a permit to operate the business under Ordinance 17.13; instead, Green Valley sued for declaratory and injunctive relief, arguing the ordinance was an unconstitutional First Amendment restriction on expression. The case was dismissed without prejudice when the County amended the ordinance during the suit. Another series of suits and subsequent modifications to the ordinance ensued. Finally, in 2012, Green Valley requested that Stars Cabaret be allowed to operate as a nonconforming use. The County did not agree to this request, leading to this suit.

Green Valley asserted that since the initial ordinance was unconstitutional, and Stars Cabaret was established and in operation before the invalid ordinance was amended, it was legal from the outset, “reasoning that anything is legal that is not forbidden.”  As a part of this position Green Valley filed a supplemental claim under state law seeking a declaration that the use was lawful in 2006 and should now be considered a nonconforming use. The district court found that parts of the 2006 ordinance were unconstitutional, but these could be severed from the rest of the ordinance, leaving the setback and alcohol provisions intact. The federal district court found that Stars Cabaret would not have been legal if these provisions were kept in place. Green Valley appealed.

Thus the 7th Circuit Court of Appeals was faced with two questions: the federal question of the constitutionality of the original ordinance, and the state law questions of nonconforming uses and severability. On the first issue, the Court found the 2006 ordinance was an impermissible prior restraint on speech because it left it up to the discretion of a local body, using ambiguous standards, to allow or deny the the speech.

The state law questions were more complex.  The district court had to determine if the remainder of the ordinance could be modified under the power of severance or if this remainder could function as a standalone law if additions or modifications were necessary to make it a valid freestanding zoning provision. These questions are considered by a federal court under supplemental jurisdiction since such claims are a matter of state law. The Court found no precedent set by Wisconsin which would answer either question. Although the district court had the ability to exercise supplemental jurisdiction, it need not have done so. In this case, the state law claims “substantially predominate over the claim or claims over which the [federal] district court has original jurisdiction.” The federal district court was not properly equipped to answer the state law questions brought up in this case, and should not have exercised supplement jurisdiction.

The Court found that, once the district court determined part of the 2006 ordinance was unconstitutional, they should have relinquished jurisdiction over the supplemental state claims and dismissed them without prejudice. The federal district court’s decision was reversed and remanded.

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