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Posts Tagged ‘Federal 8th Circuit’

Ten Commandments monument in Fargo ND does not violate First Amendment Establishment Clause

August 29th, 2014

by Gary Taylor

Red River Freethinkers v. City of Fargo
(Federal 8th Circuit Court of Appeals, August 25, 2014)

A stone monument depicting the Ten Commandments, which was given to the City of Fargo by the Fraternal Order of Eagles in 1958, has been the subject of over a decade of litigation.  In addition to the Ten Commandments, the monument includes other symbols such as the American flag and the “all-seeing eye” atop a pyramid. In 1961, the monument was installed in its current location on the City Plaza, “a grassy, open area mall” on City property, where it sat without legal challenge for over forty years.  In 2002, the Red River Freethinkers sued the city seeking a declaration that the display of the Ten Commandments violated the Establishment Clause of the First Amendment to the US Constitution.  The federal district court found in favor of the city on the grounds that because of the purpose of the gift and the other secular symbols and messages on the monument “a reasonable observer could not perceive the city as adopting or endorsing the religious message of the display.” The court went further to state that “to exclude the request of a private organization, such as the Fraternal Order of Eagles, to engage in religious speech in a recognized forum on the sole grounds that their speech has religious content could arguably be a violation of their constitutional rights.”

Seizing on this language, the Freethinkers offered their own monument to the city with a request that it be placed near the Ten Commandments monument.  It was to be inscribed:

THE GOVERNMENT OF THE UNITED STATES OF AMERICA IS NOT, IN ANY SENSE FOUNDED ON THE CHRISTIAN RELIGION
From the Treaty of Tripoli, Approved Unanimously by the United States Senate, June 7, 1797. Signed by President John Adams
Presented to the City of Fargo by the Red River Freethinkers in recognition of the First Amendment right of every American to believe, or not believe, in any god

The city commission voted to reject the Freethinkers offer, and in order to avoid litigation further decided to donate the Ten Commandments monument to a private entity, who would then move it to a location off of city property.

This caused a stir. many opposed this decision, and a petition garnering more than 5,000 signatures required the commission to either adopt, or submit to a vote of the people, an ordinance that simply stated:

A marker or monument on City of Fargo property for 40 or more years may not be removed from its location on City of Fargo property.

The city adopted the ordinance and left the monument in place.  A month later, the city adopted a policy of not accepting any additional monuments for display on the City Plaza.  The Freethinkers sued again, claiming that the petition, and the city’s reaction to it, had made the monument impermissible under the Establishment Clause.  After jurisdictional issues were addressed, the district court granted summary judgment for the city.  The Freethinkers appealed to the 8th Circuit Court of Appeals.

The Court of Appeals applied the standard announced by the US Supreme Court (USSC) for evaluating “passive monuments.”  In that USSC case, a Ten Commandments monument stood for over 40 years on the Texas Capitol grounds alongside other (“17 monuments and 21 historical markers”) secular symbols.  The USSC found that the monuments represented the several strands in the State’s political and legal history,” and that “the monument had a dual significance, partaking of both religion and government.” The 8th Circuit found the Fargo monument to be identical to the Texas situation in every legally relevant way.  The Freethinkers argued that the Christian overtones to the petition movement changed public perception of the monument to one with a single religious message; however the Court of Appeals disagreed, noting that petitioners expressed both religious and secular reasons to retain the monument, and that the city commission cited the costs of a legal challenge and the importance of “embracing and tolerating all people” as the basis for its decision.  By adopting the petition, the city did not “necessarily endorse the specific meaning that any particular petitioner sees in the document.”  The Court of Appeals affirmed the district court and dismissed the Freethinker’s petition.

Judge Bye dissented.  After reciting other details of the history of the monument (including the then-mayor’s statement at the 1961 dedication ceremony that the monument “would be a constant reminder to one and all that Fargo shall go forward only as it respects and lives according to the principles of the Ten Commandments”), Justice Bye noted several distinctions between the Fargo monument and the Texas monument, including: (a) unlike the Texas monument, no other monuments share the Civic Plaza in Fargo, (b) the city now has adopted a policy that no other monuments may stand in Civic Plaza, (c) Civic Plaza is flanked on three sides by public buildings, and sidewalks from the entrances to those buildings directly intersect at the monument.  Judge Bye concludes from these facts that the city has rendered the Ten Commandments monument an “active monument” subject to a more stringent test, and that summary judgment in favor of the city was not appropriate.

Federal courts, First Amendment claims ,

8th Circuit finally addresses “in writing” requirement of Federal Telecommunications Act

August 25th, 2014

by Gary Taylor

NE Colorado Cellular v. City of North Platte
(Federal 8th Circuit Court of Appeals, August 22, 2014)

NE Colorado Cellular, dba Viaero Wireless (Viaero) filed an application to construct a cell tower in North Platte, Nebraska (City).  The application first went to the City’s planning commission.  the commission conducted a public hearing and received both live testimony and letters from property owners near the proposed tower site.  After the hearing,the commission issued a summary report recommending denial of the application because the tower would not be in harmony with the character of the area as required by the North Platte zoning code provisions concerning cell towers.  The commission provided this report to the city council.  The city council then conducted its own public hearing, where two people spoke in favor of the tower and twelve spoke in opposition.  The council voted 6-2 to deny the application.  The minutes of the council meeting included the finding that the proposed tower “does not meet the minimum standards stated in the [zoning ordinance]…based on the [finding] that the use is not in harmony with the character of the area and it is not the most appropriate use of the land as it is a historic neighborhood and the tower could decrease property values in the area.”

Viaero filed suit against the City, alleging that the decision was neither “in writing,” nor “supported by substantial evidence” as required by the Federal Telecommunications Act of 1996 (TCA).  The district court upheld the City’s decision, and Viaero appealed to the Federal 8th Circuit Court of Appeals.

In writing.  The interpretation of the TCA’s “in writing” requirement up until this time has been an open question in the 8th Circuit.  The 1st, 2nd and 9th Circuits require that a decision (1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.  The 6th Circuit does not require that the decision and record be separate writings as long as the record permits the reviewing court to “focus with precision on the action that was taken and the reasons supporting such action.”  The 4th and 11th Circuits consider the burden on local governments to be even lighter than that imposed by the other interpretations.  The 4th Circuit has noted that “Congress knows how to demand findings and explanations” and has not done so in the TCA.  Similarly, the 11th Circuit has stated that the decision and the bases thereof can be found in the transcript of the hearing and the minutes of the meeting in which the hearing was held; neither a separate written document, nor specific findings of fact are required.**

The 8th Circuit was persuaded that the 4th and 11th Circuits articulated the better rule.  The Court did not find anywhere in the text of the TCA where the denial and the written record be separate documents.  Likewise, the language of the TCA does not require that the written denial state findings of fact or the reasons for the denial.  “Congress may require an agency or board to state its findings.  Congress did not do so here.”

Supported by substantial evidence.  The Court began by noting that “the TCA’s ‘substantial evidence’ requirement does not impose substantive standards on local governments. Rather, it requires a reviewing court to determine whether the local authority’s decision comports with applicable local law….It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  The city’s ordinance requires that a tower “shall be in harmony with the character of the area and the most appropriate use of the land” in order to be approved.  The Court found that the city council had before it the testimony of a dozen residents that the proposed tower would be an “eyesore,” would be inappropriate for the neighborhood, and would not be harmonious with the neighborhood.  This, the Court concluded, was enough for a reasonable mind to accept as adequate to support a conclusion that the proposed tower would would not be in harmony with the neighborhood.


**Note:  The US Supreme Court has accepted the case of T-Mobile South, LLC. v. City of Roswell, 731 F.3d 1213 (11th Cir. 2013), cert. granted, 134 S.Ct. 2136 (2014) to resolve these differing interpretations.

 

cell towers, Federal courts ,

Attorneys cannot represent city, then property owners, in suit concerning quarry truck traffic

June 9th, 2014

by Gary Taylor

Zerger & Mauer, LLP v. City of Greenwood
(Federal 8th Circuit Court of Appeals, May 30, 2014)

From 2006 to 2010 the city of Greenwood, Missouri and Martin Marietta Minerals were in a dispute over a rock quarry south of the city.  The dispute concerned truck traffic traveling in interstate commerce through Greenwood.  eventually, the parties entered into an agreement in which Martin paid Greenwood $7 million, and Greenwood agreed to designate Second Avenue for the truck traffic.  In the agreement, Greenwood declared that the truck traffic did not constitute a nuisance.  Greenwood had obtained a prior judgement in the case against Martin for $12 million; therefore, Greenwood was essentially making a $5 million concession so that it could designate the truck traffic route it deemed most beneficial.  Zerger and Mauer represented Greenwood throughout the dispute, receiving over $4 million in legal fees.

Subsequently in 2011, eighteen individuals who owned property along Second Avenue filed sued against Martin and others, seeking damages for a private nuisance among other claims.  Zerger and Mauer served as counsel for these plaintiffs.  Prior to the trial court’s resolution of the merits of the case, Greenwood – a non-party to the proceedings – moved to disqualify Zerger and Mauer from representing the property owners, arguing that the firm’s current representation constituted a conflict of interest.  In Greenwood’s view, Zerger and Mauer were advancing arguments that directly conflicted with Greenwood’s interests from the prior litigation.  The district court agreed and disqualified the law firm, which appealed to the Eighth Circuit Court of Appeals.  After settling a jurisdictional claim, the Court of Appeals examined the conflict of interest claim.

Missouri Rules of Professional Conduct for the legal profession outline the duties an attorney owes former clients:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

On the question of whether the city’s prior litigation with Martin was “substantially related” to the property owner’s suit, the court looked first to the commentary accompanying the above-cited rule of conduct. The commentary explains that matters are substantially related “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”  The court found it clear that the factual underpinnings of the two representations were nearly identical.  “Similarly, the legal issues central to both are substantially related, largely centering on the reasonableness of Martin’s conduct.  Although a private nuisance claim and a public nuisance claim may protect distinct rights, the legal theories are exceedingly intertwined.”  Given these conditions, the court found a “substantial probability – or at the very least a substantial appearance – that Greenwood disclosed confidential information related to the negotiations that the plaintiffs could use to their advantage.

Zerger and Mauer next asserted that their representation of the property owners was not “materially adverse” to Greenwood’s interests.  The firm argued that the declaration in the first settlement that the truck traffic is reasonable and not a nuisance involved a public nuisance and has no bearing on the property owners’ private nuisance claim.  The court rejected this, being “unpersuaded by Zerger and Mauer’s continued attempt to make public and private nuisances unrelated concepts….”  The court stated that the firm is advocating a position that contradicts a term in Greenwood’s settlement.  It is seeking to collect damages on behalf of the property owners “for Martin’s allegedly tortious use of Second Avenue – a path that Greenwood desires to reserve as the exclusive route for truck traffic.  Not only do [the property owners] have an interest in collecting substantial damages, they also naturally have an interest in otherwise disrupting Martin’s use of Second Avenue.”  The property owners’ overall interests are materially adverse to Greenwood’s interests, and as such Greenwood may demand that its former law firm not advocate for the property owners’ interests.  The Court of Appeals thus affirmed the district court’s disqualification of Zerger and Mauer from the second litigation.

 

Conflict of interests and/or bias, Federal courts ,

Content-neutral zoning ordinance that resulted in total ban on adult entertainment businesses deemed valid; alternative avenues of communication existed in other jurisdictions

August 29th, 2013

by Gary Taylor

David Peterson and The Juice Bar, LLC v. City of Florence (MN)
(Federal 8th Circuit Court of Appeals, August 16, 2013)

Florence, Minnesota – a municipality in Lyon County – has a population of 39, and covers approximately 0.2 square miles.  It is home to sixteen single-family residences, a shop where Florence’s road equipment is stored, an unheated office that serves as the city office, and a park.

In 2008 the city adopted an ordinance prohibiting the operation of a sexually-oriented business within 250 feet of day cares, schools, parks, libraries, and any property zoned for residential use.  At the same time the city adopted a zoning ordinance that established three zoning districts (residential, commercial, and business) and zoned the entire city residential.  Sexually-oriented businesses were only permitted in the commercial district.

Peterson opened The Juice Bar in December 2010, which featured live, nude dancers.  The next day Peterson was charged with three misdemeanor counts for violating the sexually-oriented business ordinance, for operating The Juice Bar within 250-feed of a park.  Peterson filed suit against the city to enjoin the enforcement of the ordinance, for a declaratory ruling that the ordinance violated his First Amendment freedom of speech rights, and sought damages and attorney fees.  Shortly thereafter in 2011, the city repealed its sexually-oriented business ordinance in its entirety, and amended its zoning ordinance to eliminate the business and commercial districts, citing the city’s “limited infrastructure, staff, and resources” which could not support business or commercial uses.  The criminal case against Peterson was dismissed, but Peterson’s First Amendment suit continued; that is, until the district court dismissed the suit.  Peterson appealed the dismissal.

Peterson first argued that the 2011 zoning ordinance constitutes an invalid total ban on the operation of adult entertainment businesses in the city.  The 8th Circuit agreed that the zoning ordinance resulted in a total ban; however, this was not fatal to the ordinance because the ordinance prohibited an entire class of conduct – all commercial and business uses – not just adult entertainment establishments. “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” A content-neutral time, place, or manner regulation will be upheld if it is narrowly tailored to serve a substantial governmental interest and leaves open ample alternative channels for communicating the speech.  The Court found that the city articulated substantial governmental interests with its zoning ordinance; mainly the preservation of the quality of life of its residents, and its limited ability to accommodate commercial or business establishments.  Further, the Court found that ample alternative channels of communicating the speech existed because over 200 acres of Lyon County were zoned in a manner that would accommodate adult entertainment businesses.  “The Supreme Court has left open the question of whether, at least in the case of small municipalities, opportunities to engage in the restricted speech in neighboring communities may be relevant to determining the existence of adequate alternative channels.”  The 8th Circuit thus walked through that opening to close the door on Peterson’s claim.

 

 

 

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

St. Louis’s definition of ‘sign’ unconstitutionally content-based

January 16th, 2012

by Victoria Heldt and Gary Taylor

Neighborhood Enterprises, Inc.; Sanctuary in the Ordinary; Jim Roos v. City of St. Louis; St. Louis Board of Adjustment
(Federal 8th Circuit Court of Appeals, July 13, 2011)

Neighborhood Enterprises manages the properties of Sanctuary in the Ordinary (SITO), a non-profit organization working with rental properties in St. Louis.  Jim Roos, the founder of both organizations, is involved in the Missouri Eminent Domain Abuse Coalition (MEDAC).  Roos and MEDAC commissioned a sign/mural to be placed on the side of a SITO-owned building.  The sign mural/ was approximately 363 square feet in area and was visible from Interstates 44 and 55.  It read “End Eminent Domain Abuse” inside a red circle with a slash through it.  The sign was similar to the design MEDAC uses in other literature [NOTE: The city of St. Louis had previously condemned 24 buildings owned either by SITO or Neighborhood Enterprises for a private development project] .

In April 2007, the City’s Division of Building and Inspection issued a citation for an “illegal sign” and declared that a permit was required for the sign to be in compliance.  SITO applied and was denied the permit because the sign was painted on a building that was zoned “D” or “Multiple Family Dwelling,” where signs are limited to a maximum 30 square feet, and also because the wall face did not have street frontage and therefore was not allowed to have signage.  SITO appealed to the Board of Adjustment and countered that the sign was, in fact, a “work of art” not required to meet the zoning code’s definition of “sign.” The City justified the requirements in its Zoning Code on concerns for traffic safety and aesthetics.  The Board upheld the zoning administrator’s denial on July 2007.  SITO appealed.

In district court SITO argued, among other things, that the zoning regulations were invalid and unconstitutional pursuant to the First and Fourteenth Amendments to the U.S. Constitution, and as such the Board’s decision should be reversed. The district court granted summary judgment in favor of the City and the Board, finding the zoning regulations were not in violation of the U.S. Constitution and that the Board’s decision was not arbitrary, capricious, unreasonable, unlawful or in excess of the Board’s jurisdiction.  SITO appealed this decision to the 8th Circuit.

On appeal, the 8th Circuit first looked to the issue of standing.  The City and Board argued that SITO only has standing to challenge the provisions within the Zoning Code that were actually applied to the decision to deny the sign permit.  It claimed that SITO could not “show a causal connection between its purported injury and the provisions of the zoning code not applied to it.”  The Court found that SITO had standing to challenge the clauses that were cited in the denial of the permit.  Additionally, it could challenge the sections of the Code that defined a sign and the scope of signs allowed.

SITO’s free speech claim was grounded in the belief that the sign regulations were “riddled with content-based exemptions and restrictions.”  Furthermore, traffic safety and aesthetics were not previously considered “compelling” interests of the government.  The Court found that the Code’s definition of a sign was unconstitutionally content-based because “the message conveyed determines whether the speech is subject to the restriction.”  If a sign/mural of the exact same dimensions and at the same location contained a symbol or crest, or if it were a national, state, religious, fraternal, professional or civic symbol it would not be subject to the city’s regulation.  The Court also found that while the regulations may generally promote aesthetics and traffic safety, the city failed to show how the distinctions between exempt and non-exempt signs found in the code further those goals. The court further held that the code’s exemptions are not narrowly tailored to accomplish goals of traffic safety or aesthetics which, “while significant, have never been held to be ‘compelling’ government interests.

The Court determined the regulation’s definition of a sign to be a violation of the First Amendment but could not rule on whether those clauses could be effectively separated from the Code since the district court never addressed the issue.  It reversed the decision and remanded the case in order for the district court to rule on that matter.

Federal courts, First Amendment claims, Signs and billboards , ,

Surface water permit holders not entitled to a predeprivation hearing when DNR issues notices to cease witdrawals

November 10th, 2011

by Gary Taylor

Keating v. Nebraska Public Power District, Nebraska Department of Resources, et al.
(Federal 8th Circuit Court of Appeals, November 8, 2011)

Due to a decrease in water levels in the Niobrara watershed, in 2006 the Nebraska Public Power District (NPPD) requested that the Nebraska Department of Natural Resources (DNR) issue Closing Notices (notices to cease water withdrawals) to hundreds of farmers and ranchers who held surface water appropriation permits that were junior to those permits held by NPPD. In the summer of 2007, the DNR issued such Closing Notices to junior permit holders without providing them notice or a hearing prior to the issuance of the Closing Notices. The appellants filed suit, arguing that the Closing Notices effected a property deprivation, and accordingly they were entitled to the procedural due process protections of a predeprivation hearing. The district court dismissed the suit, holding that the claim was not ripe and that appellants had not exhausted administrative remedies prior to filing the complaint.  After an initial decision, an appeal to the 8th circuit and a remand, district court determined that although the appellants held a property right that entitled them to use the surface waters of the Niobrara River, that right was qualified and subject to the DNR’s administration of the appropriation system. Also, the district court held that the DNR’s administration of the system did not cause the appellants to suffer a deprivation of their property rights. Accordingly, the district court granted summary judgment in favor of the appellees.

In this case the appellants argue they are entitled to a predeprivation hearing prior to the DNR conducting its administration of the Niobrara Watershed and issuing Closing Notices. Specifically, appellants seek a predeprivation hearing to challenge the validity of the NPPD’s permits on the grounds that the NPPD was not beneficially using its appropriation to produce power and to challenge the DNR’s determination of water scarcity.  In addressing the right to a hearing – due process question – a court must first determine whether state action has deprived an individual of a protected property interest, and only after finding such a deprivation does the court consider whether available procedures for challenging the deprivation satisfy the requirements of due process. The US Supreme Court “usually has held that the Constitution requires some kind of hearing before the State deprives a person of liberty or property.”  The 8th Circuit noted that the parties agreed that a water permit entitling the holder to use surface water within the capacity limits of the Niobrara Watershed represents a property right under Nebraska law. That right, however, is not one of ownership of the surface water prior to capture. Instead, the holder of a permit acquires the rights granted by the permit, and is subject to constraints articulated by the permit. Here, the appellants’ permits allows them to use specific amounts of surface water so long as there is sufficient capacity, subject to the rights of senior appropriators and subject to regulation by the State through the DNR.  Appellants argued that when the DNR administers the Niobrara in a manner that requires permit holders to stop taking water, the state should conduct a hearing to give permit holders an opportunity to challenge the DNR’s determination that there is a scarcity.  The 8th Circuit rejected this argument. On the face of the permits, permit holders are warned that there are periods of time when water supply on the Niobrara River is insufficient to meet the demands of all appropriators and that permit holders are “hereby given notice that [they] may be denied the use of water during times of scarcity.” Thus, when the DNR determines that the watershed no longer has the capacity to supply all permit holders, appellants no longer have a legitimate claim of entitlement to use the surface water and thus do not suffer a deprivation of a property right.  The 8th Circuit affirmed the determination of the district court that appellants did not suffer a deprivation of their property rights by the DNR’s actions.

Due Process, Federal courts, Property law, water resources , , ,

Indianola fence ordinance not a taking

September 5th, 2011

by Gary Taylor

Iowa Assurance Corporation v. City of Indianola
(Federal 8th Circuit Court of Appeals, August 16, 2011)

Vinton Watson races figure eight cars, and owns seven to eight cars at any one time. In March 2006 Watson began leasing a shop and adjacent parking lot from Ron Inman to store his cars. Inman’s property is located in Indianola and is zoned for commercial use. The shop that Watson leases consists of half of one building and amounts to “a little over 900 square feet.” The parking lot included in the lease is located immediately adjacent of the building and is twenty-seven by thirty-four-feet. Watson can store up to three cars in the shop, although it is difficult to store more than two cars when repairing vehicles inside the shop. Additionally, Watson stores up to three cars in the parking lot, although cars are not always stored there.

Neighbors have complained to the Indianola city council on numerous occasions about the appearance and noise of Watson’s cars.  As a result, the city council passed an ordinance in 2007, amended in 2009, requiring figure eight cars and other race cars to be inclosed by a fence in all outdoor areas where two or more vehicles are present.  Watson sued the city, specifically alleging that the ordinance creates an uncompensated regulatory taking by requiring him to install a fence and by reducing the overall value of the property.  The suit was brought in state court but the city had the case removed to federal court.  The Federal District Court for the Southern District of Iowa found in favor of the city and Watson appealed.

The 8th Circuit noted that regulatory takings claims come in four types:

The first type is a regulation which requires an owner to suffer a permanent physical invasion of her property. The second type is a regulation that completely deprive[s] an owner of all economically beneficial use of her property. The third type is a governmental requirement that, without sufficient justification, requires an owner to dedicate a portion of his property in exchange for a building permit. The fourth type is any other regulation which, after considering its economic impact upon the plaintiff and its essential character, is functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.

Watson claimed that the city’s action violated the first and third types: physical invasions and land-use exactions.  The Court rejected both of Watson’s claims.  It rejected the physical invasion claim because the ordinance does not require Watson to permit either the city or any third party to enter his property to install a fence, and consequently does not erode his right to exclude others from his property.  It rejected the land use exaction claim because in those cases the government is demanding that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit, or other type of license.   The Indianola ordinance does not require Watson to dedicate any portion of his property to either the City’s or the public’s use as a condition of anything.

Federal courts, Takings , ,

City fails to demonstrate rational basis for prohibition of billboard extensions

January 24th, 2011

by Melanie Thwing

Clear Channel Outdoor v. City of St. Paul
(Federal 8th Circuit Court of Appeals, August 25, 2010)

Clear Channel Outdoor has owned and operated billboards in the City of St. Paul, MN since 1925. They regularly use billboard extensions when the customer’s needs require them. In St. Paul billboards until November 2000 were regulated with the zoning code, but were allowed. Then St. Paul, Minnesota Code §64.420 was passed which does not allow for any new billboards to be constructed. Effectively, the standing billboards were allowed as nonconforming uses. St. Paul Code §66.301(g) at the time still regulated the size and length of time for all extensions.

Then in March 2005 concerns about billboard extensions were brought to the city’s Planning Commission. The options of banning extensions altogether and allowing extensions through a permiting process were both discussed.  A resolution in support of the permitting scheme was ultimately adopted and transmitted to the city council. 

In August 2005 at a public hearing the City Council discussed the billboard extension issue, but laid the discussion over until November. During this time the Planning commission again took up the issue and again rejected the outright prohibition of billboard extensions.  Dispite this, in March 2006 the City Council adopted Ordinance 06-160, which prohibited all billboard extensions. The minutes did not reflect any discussion of costs or benefits of the ordinance.

Clear Channel filed a complaint in federal district court claiming (1) unconstitutional and unreasonable use of police power and (2) violation of Clear Channel’s due process and equal protection laws. After two years of mediation the parties were not able to reach an agreement. In January 2009 the district court ultimately found the ordinance arbitrary and capricious and therefore void because no rationale for the City Council’s decision was presented.

The City appealed the district court decision to the 8th Circuit Court of Appeals, arguing that the district court applied the wrong standard. Honn v. City of Coon Rapids was the precedent cited by the district court. Honn declares, “…[t]he municipal body need not necessarily prepare formal findings of fact, but it must, at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion…” Clear Channel countered that the city was originally in favor of using the Honn standard, and originally argued it was controlling.

The 8th Circuit agreed with Clear Channel’s argument, citing specific instances where the city said Honn was controlling. Also, the 8th Circuit concurred that Honn was applicable because the procedure it announced should be followed in ‘any zoning matter, whether legislative or quasi-judicial…” Honn has legislative authority fromMinn. Stat. §462.357, subd 1, which gives a municipality the authority to regulate buildings and structures, which is the core of this case. It is concluded that Honn is applicable.

Secondly, the city argues that even if Honn is applicable, the district court was in err because it did not allow a trial that would have allowed the City to demonstrate the rational basis for its decision. The 8th Circuit noted, however, that the City had assured the district court that the record was complete and that a decision could be made. Honn does state that a trial may be allowed, but not required.  A trial is not made available simply “…to provide local governments with a routinized opportunity for a second bite at the apple by neglecting to provide and adequate record for review.” As long as the record is complete, as was the case here, no trial is necessary. The City failed to prove a rational basis for the ordinance prohibiting billboard extensions in any documents provided. The court refused to remand the case and affirmed the district court decision.

Due Process, Federal courts, Signs and billboards , , ,

City failed to establish injury in Fair Housing Act claim

November 22nd, 2010

by Gary Taylor

City of Kansas City v. Yarco Company and Churchill Properties
(Federal 8th Circuit Court of Appeals, November 9, 2010)

Yarco runs an apartment complex in Kansas City. Its lease agreement with its tenants reads, “CURFEW time for everyone under the age of 18 will be 8:30 p.m. nightly.” The city filed a complaint with the Department of Housing and Urban Development (HUD) alleging that the curfew discriminated against “families with children under the age of eighteen,” in violation of the Fair Housing Act (FHA).   Yarco opted for judicial proceedings, and the city sued in state court, alleging violation of the FHA. Yarco removed the case to the District Court for the Western District of Missouri on federal question grounds. Finding that the city could not make a plausible showing of discriminatory intent, the district court granted Yarco’s Motion for Judgment on the Pleadings, and the city appealed to the Federal 8th Circuit Court of Appeals.

On appeal, the 8th Circuit found that the federal courts lacked subject matter jurisdiction to hear the case, because the city could not make the requisite showing of standing.  “The constitutional minimum of standing requires an ‘injury in fact,’ a causal connection between the injury and the conduct complained of.”  The city did not allege injury to itself, but rather that “families with children and children under the age of 18 years of age are aggrieved,” and that the city has a sovereign interest in enforcing the FHA.  The 8th Circuit disagreed, noting that the FHA does not assign claims of aggrieved parties to state and local agencies.  “The city is silent about harm to its particular interests.”  The case was remanded to district court, for further remand to state court.

Fair Housing Act, Federal courts, Procedural Issues , ,

St. Paul’s aggressive housing code enforcement may result in Fair Housing Act violation

September 20th, 2010

by Gary Taylor

Thomas J. Gallagher, et. al v. Steve Manger, et. al.
(Federal 8th Circuit Court of Appeals, September 2, 2010)

In 1993, St. Paul, Minnesota (city) enacted a Property Maintenance Code (Code), that established “minimum maintenance standards for all structures and premises for basic equipment and facilities for light, ventilation, heating and sanitation; for safety from fire; for crime prevention; for space, use and location; and for safe and sanitary maintenance of all structures and premises.” In 2002, the City established the Department of Neighborhood Housing and Property Improvement (DNHPI) to administer and enforce the Code.  DNHPI was empowered to inspect all one- and two-family dwellings and administer and enforce laws regulating maintenance of residential property. 

Andy Dawkins was the director of DNHPI from 2002 to 2005. The evidence presented at trial showed that Dawkins favored owner-occupied housing over rental housing “for the sake of the neighborhood.” Toward that end, he increased the level of Code enforcement targeted at rental properties. In addition to responding to citizen complaints about particular properties, DNHPI inspectors conducted proactive “sweeps” to detect Code violations. Furthermore, Dawkins raised inspection standards by directing DNHPI inspectors to “code to the max,” that is, writing up every violation—not just what was called in—and writing up all the nearby properties—not just the reported properties. DNHPI also increased its Code enforcement efforts on “problem properties.”  DNHPI employed a variety of strategies for renter-occupied dwellings, including orders to correct or abate conditions, condemnations, vacant building registration, fees for excessive consumption of municipal services, tenant evictions, seizures, revocations of rental registrations, and if necessary, court actions.  DNHPI coordinated its efforts with the city police and an assistant city attorney. In addition, the city used “Code Compliance Certification” to require rental properties to meet current housing and building standards. Through this certification the city required rental property owners to acquire Code Compliance Certification if a property was remodeled or deemed a dangerous structure, a nuisance building, or vacant. Code Compliance inspections were conducted by the City’s Office of License, Inspections, and Environmental Protection, which would evaluate the building’s structure, plumbing, electrical condition, and mechanical condition. Code Compliance Certification forced property owners to undertake often-expensive renovations, especially with regard to older properties that were exempt from current building codes under Minnesota law.

Gallagher and others (Appellants) own or formerly owned rental properties in the city. They rented primarily to low-income households, and a majority of their tenants received federal rent assistance. The parties agree that African-Americans generally made up a disproportionate percentage of low-income tenants in private housing in the city, and specifically, Appellants claim that they rented to a higher-than-usual percentage of African-Americans. Appellants’ properties were subject to the City’s Housing Code enforcement from 2002 to 2005. They received code enforcement orders that, in many cases, cited between ten and twenty-five violations per property for conditions including rodent infestation, missing dead-bolt locks, inadequate sanitation facilities, inadequate heat, inoperable smoke detectors, broken or missing doors and screens, and broken or missing guardrails or handrails. Several of Appellants’ properties were designated as problem properties, subject to Code Compliance Certification, or, in a few cases, both. As a result of the City’s Housing Code enforcement, Appellants suffered increased maintenance costs, fees, condemnations, and were forced to sell properties in some
instances. 

Appellants filed several suits against the city in 2004 and 2005 that were consolidated into the present case.  Included were three claims under the Fair Housing Act (FHA) for disparate treatment, disparate impact, and retaliation. 

Disparate treatment.  For a disparate treatment claim to survive summary judgment, Appellants are required to show that the city treated Appellants less favorably than others based on race, color, religion, sex or national origin.  This is done through proving (1) direct evidence of discriminatory intent or (2) indirect evidence creating an inference of discriminatory intent.  The record showed that Dawkins made statements that demonstrate his desire and intent to reduce the amount of low-income tenants in the city; however, all of Dawkins’ statements were facially race neutral.  “Facially race-neutral statements, without more, do not demonstrate racial animus on the part of the speaker.” Merely calling these statements evidence of racial animus is not enough to create a genuine dispute of fact.  Therefore, the Court affirmed summary judgment in favor of the city.

Disparate impact.  For a disparate impact claim to survive summary judgment, Appellants must establish “that the objected-to action[s] result[ed] in . . . a disparate impact upon protected classes compared to a relevant population. Stated differently, Appellants “must show a facially neutral policy ha[d] a significant adverse impact on members of a protected minority group. Appellants are not required to show that the policy or practice was formulated with discriminatory intent.  The Court found evidence that supported the following assertions: (1) the city experienced a shortage of affordable housing; (2) racial minorities, especially African-Americans, made up a disproportionate percentage of lower-income households in the city that rely on low-income housing; (3) the city’s aggressive Code enforcement practices increased costs for property owners that rent to low-income tenants; and (4) the increased burden on rental-property owners from aggressive code enforcement resulted in less affordable housing in the city.

According to caselaw, the city must counter the showing by demonstrating that its policy or practice had “‘manifest relationship’” to a legitimate, nondiscriminatory policy objective and was necessary to the attainment of that objective.  Appellants concede that enforcement of the Code has a manifest relationship to legitimate, non-discriminatory objectives, which is providing minimum property maintenance standards to , keep housing habitable; however, caselaw also allows Appellants to show that alternative policies are available that accomplish the same objectives, yet lessen the discriminatory impact.  The Court found that Appellants met this showing by highlighting the success of the city’s previous Code enforcement program, known as PP2000.  PP2000 was based on a set of strategies that included identification of properties with a history of unresolved or repeat Code violations, meeting with the owners individually, encouraging the owners to take a more business-like approach to managing their properties, keeping closer tabs on changes of ownership, and using consistent inspectors at each property. These strategies resulted in “owners working hard to be pro active in maintaining their properties.  The Court concluded that sufficient evidence existed to warrant remand of the disparate impact claim to the District Court.

Retaliation.  The FHA prohibits retaliation against any person on account of his having exercised or enjoyed a right granted or protected by the FHA. The Court found that Appellants “vaguely asserted” that the city’s code enforcement actions were retaliatory; however, the Court refused to allow the retaliation claim to go forward because the Appellants had not identified how they exercised or encouraged others to exercise rights under the FHA or how the city retaliated.

Appellants raised nine other claims unrelated to the FHA claims, that were all dismissed by the Court.  As a result, the only claim remanded to the District Court was the disparate impact claim.

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