Montana Legislature passes substantial land use reforms to promote housing and planning

Gary Taylor

The Montana Legislature, not generally known as a bastion of left-leaning principles, has passed several bills designed to promote land use planning and, specifically, the development of missing-middle housing in its cities.

Perhaps the most significant of the bills is SB 382, the Montana Land Use Planning Act. The fifty-two page bill, among other things, will require cities of 5,000 or greater in counties of 70,000 or greater to create land use plans. It sets out processes for public participation in, and the adoption of such plans, and requires plans to address (1) existing conditions and population projections, (2) housing, (3) local services and facilities, (4) economic development, (5) natural resources, environment, and hazards, (6) land use and future land use map, and (7) implementation. It also sets forth a schedule for the review and possible amendment of land use plans, and permits jurisdictions to adopt area plans and issue plans that provide more detailed analyses of any component of the land use plan.

SB 245 will require local zoning in cities over 7,000 in an urban area to allow multi-family housing and mixed-use development in commercial zones that previously only allowed office and retail.

SB 323 will require local zoning in cities of 5,000 or greater to allow duplexes in single-family neighborhoods.

At the same time, the Montana Legislature passed SB 406, preventing cities from adopting building codes more stringent than the state building code.

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Donuts: Art or signage? You decide.

Gary Taylor

A bakery owner in Conway, New Hampshire had local art students cover the wall above his front door with a painting of the sun shining over a mountain range made of sprinkle-covered chocolate and strawberry donuts, a blueberry muffin, a cinnamon roll and other pastries. The town zoning board decided that the pastry painting was not so much art as advertising, and so violated the local code because it was about four times larger than the signage provisions allowed. Rather than modify or remove the painting, the bakery owner sued in federal district court, saying the town is violating his freedom of speech rights. You can read the complaint here.

Art or sign? You decide!

“They said it would be art elsewhere,” the bakery owner told The Associated Press in an interview. “It’s just not art here.”

The Conway code considers a sign to be “any device, fixture, placard, structure or attachment thereto that uses color, form, graphic, illumination, symbol, or writing to advertise, announce the purpose of, or identify the purpose of any person or entity, or to communicate information of any kind to the public, whether commercial or noncommercial.”

What do you think?

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Open Records Act applies to Governor’s office; documents must be provided promptly and timely

Gary Taylor

by Gary Taylor

Laura Belin, Bleeding Heartland, LLC, et al v. Governor Kim Reynolds, et al.

Iowa Supreme Court, April 14, 2023

Three journalists, two news organizations and the Iowa Freedom of Information Council collectively emailed eight different open records requests to the Governor’s office and staffers, with each request covering a different topic. The first request was sent April 2020, and the last was sent April 2021. Each request was followed up, some several times, by the requestors sending follow-up emails to check on the status of their requests. Receiving no documents, the requestors filed suit December 2021 alleging that the Governor’s office had violated the Open Records Act by failing to provide the requested records. They further alleged that even if the documents were to be provided after the filing of their suit, the Governor’s office had already violated the Act by failing to provide the records promptly and timely. The Governor’s office did supply the requested records around January 3, 2022, and quickly moved to dismiss the suit as being moot (because the records had been provided). Alternatively the Governor’s office argued that even if the case was not moot, the claims nonetheless failed “when brought against the Governor” because permitting timeliness claims would “infringe on the Governor’s executive privilege.” Plaintiffs countered that the Governor’s office had not provided all the requested records: some had still not been provided while others that were provided had been redacted under claims of confidentiality. Plaintiffs argued that regardless of these facts, the timeliness issue must be addressed. Plaintiffs also disputed the claim of executive privilege.

The Supreme Court characterized plaintiffs’ claims as raising issues of (1) insufficiency and (1) delay.

Insufficiency. The Court first determined that the issue of production of unredacted documents on January 3, 2022 was in fact moot, because an order to produce already-produced records would have no force or effect in the underlying controversy. Further, the Court saw no important public interest in further litigation about the production of records that have already been produced. Weighing on the Court’s decision was the “great respect” the judicial branch owes to the executive branch.

The Court looked differently, however, on the claims regarding documents that had not been provided or provided but redacted. Mootness did not apply to those claims, and the issue must be heard by the district court to determine whether the Governor’s office’s claims of confidentiality were valid.

Delay. The Court laid out the following general principles in reviewing Open Records claims: Plaintiff’s burden is to demonstrate three elements: (1) that “the defendant is subject to the requirements of” the Act, (2) “that the records in question are government records,” and (3) “that the defendant refused to make those government records available for examination and copying by the plaintiff.” Then, the burden shifts to the defendant “to demonstrate compliance with the requirements of” the Act. The question here is whether the Open Records Act allows a plaintiff to sue when there is no express refusal but yet the defendant fails to produce the records for an extended period of time.

The Court focused on the term “refused” and, after consulting four different dictionaries for definitions of the word, concluded that a party can “refuse” by “showing that it won’t produce records,” which can be demonstrated through an “unreasonable delay” in producing records.

Relevant inquires [as to whether a delay is unreasonable] may include:

1. how promptly the defendant acknowledged the plaintiff’s requests and follow-up inquiries,

2. whether the defendant assured the plaintiff of the defendant’s intent to provide the requested records,

3. whether the defendant explained why requested records weren’t immediately available (e.g., what searches needed to be performed or what other obstacles needed to be overcome),

4. whether the defendant produced records as they became available (sometimes called rolling production),

5. whether the defendant updated the plaintiff on efforts to obtain and produce records, and

6. whether the defendant provided information about when records could be expected.

The district court was correct in not dismissing plaintiff’s case, as there were relevant questions related to these factors that still needed to be addressed. The Court also disagreed with the Governor’s office’s contention that these questions do not apply to electronic records. Nothing in the Open Records Act suggests that electronic-record requests should be exempted from a timeliness inquiry.

Executive privilege. Finally, the Governor’s office argued that permitting timeliness claims would “infringe on the Governor’s executive privilege”; contending that gauging the reasonableness of her response times would require an inquiry into “how the Governor and her staff – including her senior legal counsel – were spending their time,” and “whether her allocation of resources between responding to open records requests and her other governing responsibilities was reasonable.” The Governor’s office believed that these issues were nonjusticiable political questions.

The Court dismissed this theory. The answer to the question of timeliness in a records request depends on a defendant’s “outward behavior”; i.e., how the defendant responded. “It should not depend on defendants’ thinking. It should not depend on the defendants’ internal conversations. It should not depend on the inner workings of the Governor’s office. It should not depend on political questions, like whether the Governor properly allocated resources when staffing her office. And it should not depend on potentially privileged information, like the details of how the Governor was spending her time, or what she discussed with her lawyers.” [emphasis original]. The Court expressed doubt that a defendant’s attempt to show a good faith, reasonable delay per section 22.8(4) “would require substantial inquiries into a defendant’s resource allocation choices or any other confidential decision-making. They should not require us to wander in constitutional minefields.”

The case was remanded to district court for further proceedings.

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The Bureau of Alcohol, Tobacco and Firearms is Unconstitutional, so says a Missouri county

Gary Taylor

In order to open a gun store an individual must obtain a federal firearms license from the Bureau of Alcohol, Tobacco, Firearms and Explosives, commonly known as the ATF. In processing the applications the ATF will contact the local jurisdiction to inquire about the zoning of the parcel where the sales are to take place. When four people in Camden County, Missouri applied for licenses from the ATF, their county government responded to ATF’s inquiry by refusing to cooperate, stating in a letter that the county has an ordinance “prohibiting any county employee from assisting your unconstitutional agency in violating the rights of our citizens.” The presiding county commissioner stated that “Any and all federal firearms laws, so-called laws, in my opinion, and many others’ opinion, are unconstitutional.”

The net effect, of course, is that the ATF will be unable to provide these four citizens with federal firearms licenses to sell guns. The law works in mysterious ways.

https://www.kcur.org/news/2023-04-08/a-missouri-county-wont-work-with-the-atf-claiming-the-federal-agency-is-unconstitutional

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Iowa Supreme Court interprets “satisfaction” to the satisfaction of county

Gary Taylor

by Gary Taylor

McNeal v. Wapello County

Iowa Supreme Court, February 3, 2023

The McNeals were operating a vehicle repair and salvage business on property in Wapello County zoned R-1 Residential. For our purposes it’s not necessary to go too far into the history of the dispute between the McNeals and the county over the condition of the property; it is sufficient to know that in April 2019 the parties entered into a settlement agreement that, in part, included the following provisions:

1. The McNeals have 90 days from April 1, 2019 to clean the Property including the removal of debris and derelict vehicles and begin repairs on the residence . . . .

2. Forty-five days after April 1, 2019, (May 16, 2019) the McNeals grant to the County the right to enter onto the Property and to determine what remaining debris, derelict vehicles, or repairs need to be completed. The County will then notify the McNeals of the additional work which needs to be completed within the 90 day period.

3. If the removal of debris, derelict vehicles, and maintenance of the Property has not been completed to the satisfaction of the County by the end of the 90th day (June 30, 2019), then the McNeals grant unto the County the right for the County and/or its agents to enter onto the Property and to remove all remaining debris, derelict vehicles, and unrepaired structures. The County’s cost in removing such debris, derelict vehicles, or structures will be assessed against the Property ….

4. . . . Other than the procedure set forth in this Settlement Agreement, the McNeals waive and release any other statutory or common law right to challenge the County’s right to enter the Property and to conduct clean up activities, including any rights against the County’s employees, elected officials, or agents….

6. This Agreement is the entire agreement between the Parties and supersedes all prior discussions, understandings or representations. It may not be modified or amended, nor any waiver of its provisions, except by a written instrument executed by the parties.

emphasis added in Paragraph 3

When the county zoning administrator entered the property on May 19 no cleanup work had been done. He sent a letter to the McNeals on May 21 documenting this fact. On August 5, after the ninety-day period referenced in Paragraph 3 of the settlement agreement, plus another thirty-five days, had passed, the county entered the property and removed a large number of items. This included sixteen vehicles, none of which displayed any indication of being licensed. The county sent the McNeals a letter on August 27 advising them that they could retrieve any of the vehicles by providing an indication of title and paying the towing and storage fees, but none could be returned to the same property. The letter also stated that the vehicles would be destroyed if not retrieved within 10 days.

The McNeals filed suit in district court against the county on September 6, claiming that the county’s actions constituted a breach of the settlement agreement. At a hearing on motions filed by bother parties the dispute was determined to be centered on Paragraph 3 of the settlement agreement; specifically on what the term “derelict” meant for purposes of the agreement. The county argued that the language of Paragraph 3 gave the county sole discretion to determine whether the vehicles were “derelict,” while the McNeals disagreed, and countered that there were genuine issues of fact about whether the vehicles were, in fact, derelict. After some actions at the district court and the Court of Appeals that you probably don’t care about, the Iowa Supreme Court took up the case and issued this opinion.

The court stated the issue as primarily an interpretation of Paragraph 3: “What does it mean to say that ‘the removal of debris, derelict vehicles, and maintenance of the Property has not been completed to the satisfaction of the county'”? The county argued, first, that “to the satisfaction of the county” means what it says; that is, it is within the county’s sole discretion to determine whether vehicles were “derelict.” Second, that Paragraph 2 giving the County “the right to enter onto the Property and to determine what remaining debris, derelict vehicles, or repairs need to be completed” affirms this. Third, that to decide otherwise would, in effect, render the “settlement” meaningless as it would give the McNeals the right to essentially relitigate the case over whether the county had the right to remove the items on the property. The McNeals, of course, disagreed with the county’s characterization of the agreement’s provisions.

The Court noted that, absent a phrase in the agreement such as “as determined by the County in its sole discretion,” the relevant inquiry should be “whether a reasonable person in the position of the county would be satisfied” that the McNeals had carried out its obligations under the agreement. The Court concluded that it was reasonable for the county to determine on August 5 that all the vehicles in question were derelict and should be removed. None had current licensure, most were decades old, most if not all were unable to be driven, and a few even lacked VINs. The McNeals had done nothing to clean up the property since the agreement was reached, and offered no proof, either to the county or during the court proceedings, that any of the vehicles were in good, running condition. While the McNeals argued that all the cars had “productive value” because they were salvaged for parts and therefore didn’t require removal, the Court said this was immaterial. A party’s “undisclosed, unilateral intent” in signing a settlement agreement doesn’t matter. A reasonable person could still view a vehicle as derelict even if it had salvage value.

In sum, the Court concluded that the terms of the agreement required the county to act reasonably in determining whether the vehicles were derelict, and that it had done so.

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Seventh Circuit follows SCOTUS lead, upholds validity of distinction between on- and off-premises signs

Gary Taylor

by Gary Taylor

Adams Outdoor Advertising v. City of Madison, Wisconsin
Seventh Circuit Court of Appeals, January 4, 2023

Adams Outdoor Advertising (AOA) owns billboards throughout the Midwest, including 90 in Madison, Wisconsin. Like a majority of cities Madison adopted a sign ordinance to promote traffic safety and aesthetics. It comprehensively regulates “advertising signs,” which is defined under the ordinance as any sign advertising or directing attention to a business, service, or product offered offsite; in other words, a sign that advertises something unrelated to the premises on which the sign sits. The construction of new advertising signs has been banned under the Madison ordinance since 1989. Existing advertising signs were allowed to remain but cannot be modified or reconstructed without a permit and are subject to size, height, setback, and other restrictions. In 2009, Madison amended its sign ordinance to prohibit digital displays. In 2017, the definition of “advertising sign” was amended to remove references to noncommercial speech. Several of these amendments spurred lawsuits against Madison by AOA which are not relevant to the present case. As the ordinance now stands, the term “advertising sign” is limited to off-premises signs bearing commercial messages.

AOA initiated the present litigation based on the U.S. Supreme Court’s 2015 decision in Reed v. Town of Gilbert. Although the distinction between on-premises and off-premises signs was not at issue in Reed, AOA argued that, under Reed, any ordinance treating off-premises signs less favorably than other signs is a content-based restriction on speech and thus is unconstitutional unless it passes the high bar of strict scrutiny. The district court disagreed and applied intermediate scrutiny. Relying on the Fifth Circuit case of Reagan National Advertising v. City of Austin AOA appealed the district court ruling. When the U.S. Supreme Court agreed to take up the Austin case the Seventh Circuit delayed ruling on the AOA v. Madison case pending the outcome of Austin. As readers of this blog know, the U.S. Supreme Court used the Austin decision to clarify that nothing in Reed altered its earlier precedents applying intermediate scrutiny to billboard ordinances and upholding on-/off-premises sign distinctions as ordinary content-neutral “time, place, or manner” speech restrictions.

For time, place, and manner restrictions to be valid they need only be narrowly tailored to serve a significant governmental interest.” It has been established through countless cases that traffic safety and visual aesthetics are significant governmental interests. AOA nonetheless argued that the Madison ordinance failed intermediate scrutiny because the city failed to provide empirical evidence linking billboards to aesthetic or safety-related harms. Citing earlier precedent, the Seventh Circuit stated that “billboards, by their very nature…can be perceived as an esthetic harm” and the city “need not try to prove that its aesthetic judgments are right.” Likewise, the connection between billboards and traffic safety is too obvious to require empirical proof. “It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it.”

The Seventh Circuit affirmed the district court’s dismissal of AOA’s claim.

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Declaratory judgment not appropriate avenue to appeal rezoning decision. Landowner gets second bite at appeal anyway.

Gary Taylor 1 Comment

By Gary Taylor

Dyersville Ready Mix, Inc., dba BARD Materials v. Iowa County (WI) Board of Supervisors and Iowa County Planning and Zoning Committee

Wisconsin Court of Appeals, October 20, 2022

In October 2019, BARD submitted an application to the Iowa County Planning and Zoning Committee, seeking to rezone its property from A-1 Agricultural to AB-1 Agri-Business to allow BARD to apply for a conditional use permit to convert its property from preserved agricultural land to a quarry.  The Town Board voted to oppose BARD’s rezoning application because it was inconsistent with its comprehensive plan. The Iowa County Planning and Zoning Committee then voted to recommend denial of the application for the same reason. The Iowa County Board ultimately voted to deny BARD’s application. [Note: this sequence of events doesn’t make sense to me, but I’m just repeating what I read].  BARD then commenced this action challenging the denial of its application. BARD labelled its action, and specifically sought, a declaratory judgment, arguing that, as a matter of law, it was entitled to the rezoning because it satisfied all of the criteria for rezoning its property. The Town moved for judgment on the pleadings, and the County moved to dismiss for failure to state a claim, arguing that declaratory judgment was not the appropriate remedy. They argued, among other things, that BARD’s exclusive remedy to challenge the denial of its rezoning application was by certiorari. The circuit court denied both motions. The parties then filed competing motions for summary judgment.  The circuit court granted summary judgment to BARD and issued a declaratory judgment that Bard is entitled to rezoning of its property as a matter of law. The Town and the County appealed.

The Town and County contended that certiorari is the exclusive remedy for review of a rezoning decision because rezoning is a legislative act and, according to the 2018 Wisconsin Supreme Court case of Voters with Facts v. City of Eau Claire, declaratory judgment is not a proper method for reviewing municipal legislative decisions.  BARD countered that “[t]ime and again, courts have entertained challenges to rezon[ing] decisions pleaded as claims for declaratory judgment” and provided a list of cases that it asserted adjudicated a rezoning decision through an action for declaratory judgment.  BARD also asserted that “general principles concerning review of legislative actions apply with ‘considerably lesser force’ to rezoning denials.” 

The Court of Appeals, however, was not persuaded.  “[BARD] does not explain why any of [the cases listed by BARD] control over the specific holding in Voters with Facts that certiorari review, rather than declaratory judgment, is the proper means to seek review of a municipal legislative determination. That is, BARD does not contend that any of the cases it cites addressed the legal question which was squarely addressed and answered in Voters with Facts.”  The Court noted with approval the observation in Voters with Facts that “declaratory relief is disfavored if there is a speedy, effective and adequate alternative remedy.” In this case, certiorari is available and therefore, is the exclusive method of review.

BARD argued alternatively that its complaint did, in fact, state a claim for certiorari review because it raised the questions, appropriate for such review, of whether the county’s actions were arbitrary or unreasonable.  The Court of Appeals did bite on this theory, concluding that BARD’s claims fit within the scope of, and therefore could be construed as a request for certiorari review.  The Court of Appeals remanded the case to circuit court because it was tried as a declaratory judgment action, and the record was therefore insufficient to enable certiorari review. 

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Appeal filed in Michigan drone case

Gary Taylor

An update: The Maxons have filed an appeal in the Michigan Supreme Court seeking to overturn this decision. The Institute for Justice is backing the Maxons. The IJ attorney states that “Americans have a right to be secure in their homes and backyards without being watched by a government drone.” The Michigan Court of Appeals decided that even if the drone flights violated the Maxons’ Fourth Amendment rights, the government should still be allowed to use the evidence obtained from the unconstitutional search in court because the Fourth Amendment’s protection applies to criminal prosecutions and does not apply to civil code enforcement proceedings.

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Solar debate heats up in Linn County

Gary Taylor

The Linn County Board of Supervisors voted in a moratorium on accepting rezoning applications for the county’s Renewable Energy Overlay District to allow planning staff to study the ordinance in light of recent applications. The moratorium is in place initially for three months, but can be extended to a maximum of twelve months.

On a related note, residents near two utility-scale solar projects are suing the Linn County supervisors, challenging the supervisors’ zoning decision that will allow construction of the facilities. The residents argue that the rezonings under the Renewable Energy Overlay District constitute spot zoning.

What is spot zoning? Well, since you asked you can click on the drop down “Categories” menu to the right and find cases from Iowa and beyond that address spot zoning.

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