Year: 2009

Corps of Engineers potentially liable for billions in damages from Katrina flooding

Gary Taylor

by Gary Taylor

The Federal District Court for the Eastern District of Louisiana ruled that that the failure of the Corps of Engineers to properly maintain and operate the Mississippi River-Gulf Outlet – a shipping channel dug in the 1960s as a short-cut between the Gulf of Mexico and New Orleans – was a substantial cause for the failure of the Reach 2 Levee that resulted in the flooding of the Lower 9th Ward and St. Barnard’s Parish during Hurricane Katrina. 

The Court also found that the Corps was not negligent with respect to its failure to construct a surge protection barrier at the “funnel” where Reach 2 merges into Reach 1 and the Gulf Intracoastal Waterway, and thus was not liable for the flooding of New Orleans East. It also found that the Corps was not entitled to immunity under § 702c of the Flood Control Act of 1928 and is not entitled to the protection of the due care, discretionary function, or misrepresentation exceptions under the Federal Torts Claim Act.  The court found that plaintiffs in the present case were entitled to $720,000 in damages, but the significance of the case is in the potential billions in damages that the federal government could be liable for if the ruling survives appeals, and the other 100,000 homeowners and business owners follow with lawsuits of their own.

The Court’s decision can be accessed here.
An Associated Press news article can be accessed here.

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Montana state agency determines Bozeman rental ordinance discriminatory

Gary Taylor

by Gary Taylor

The Montana Human Rights Bureau (MHRB) has found reasonable cause to believe that a city of Bozeman housing ordinance illegally discriminates against people with disabilities, and on the basis of age.  The ordinance prohibits more than four unrelated people from living together unless they meet certain criteria.  The ordinance is similar, but not identical to ordinances that have been adopted in several Iowa cities, including the Ames ordinance that the Iowa Supreme Court found to be constitutional in a 2007 decision.  Bozeman is home to Montana State University, which has an enrollment of roughly 13,000 students.

An article from the Bozeman Daily Chronicle that includes an embedded PDF of the MHRB investigative report can be found here.

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Raze order must be served on wife as well as husband

Gary Taylor

by Gary Taylor

State of Wisconsin ex rel Borst v. City of New Richmond
(Wisconsin Court of Appeals, November 14, 2009)

Service of raze order on husband does not constitute service on wife under Wisconsin statute.

A warranty deed lists both Vernon and Carolyn Borst as owners of a commercial building in the City of New Richmond, Wisconsin.  Vernon was personally served with what the parties have construed as a “raze order” from the New Richmond Building Inspector.  The order informed Vernon that his building was being condemned and, because the repairs would be excessive and “not a reasonable option,” Vernon was directed to raze the building and clean up the premises within 120 days. Vernon appealed to the New Richmond Board of Appeals and was given two weeks to remove excess items from his property, and sixty days to return to the Board with an “engineered plan” for repairs to bring the property into compliance.  When Vernon failed to reappear before the Board, his appeal was denied. 

The Borsts argued Carolyn’s due process rights were violated by the City’s failure to serve her with the raze order as required under Wis. Stat. 66.0413(1)(d), which requires service “on the owner of record of the building that is subject to the order or on the owner’s agent.” The trial court found in favor of the city, citing Wis. Stat. 66.0413(1)(e), which provides:  “If a raze order … is recorded with the register of deeds …, the order is considered to have been served, as of the date the raze order is recorded, on any person claiming an interest in the building or the real estate as a result of a conveyance from the owner of record unless the conveyance was recorded before the recording of the raze order.”

The Wisconsin Court of Appeals interpreted this subsection differently, so as to only apply in situations where a conveyance is made from the owner of record during condemnation proceedings.  Since that was not the case here the city could not rely on the notice filed recorded with the register of deeds.  Furthermore, the Court of Appeals found that personal service on Vernon could not be construed as service on Carolyn.  Constructive notice will not suffice, and the Wisconsin Supreme Court has previously held that a marital relationship did not make the husband an agent authorized to accept service of summons on behalf of his wife.  The Court of Appeals reversed the lower court and remand the matter with directions to vacate the raze order.

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FHA claims held to apply to post-sale actions of condo association

Gary Taylor

by Gary Taylor

Bloch v. Frischholz and Shoreline Towers Condominium Association
(Federal 7th Circuit Court of Appeals, November 13, 2009)
(For a map of the geographic boundaries of the federal courts of appeals click here)

7th Circuit Court of Appeals remands to district court claim for post-sale discrimination under Fair Housing Act.

The Blochs are long-time residents of the Shoreline Towers condominiums, subject to the rules and regulations of the Shoreline Towers Condominium Association (STCA).  For roughly 30 years the Blochs displayed a mezuzah (a small rectangular box that houses scriptures from the Torah) on the exterior doorpost of their home (Many Jews believe they are commanded by God to affix a mezuzah on the right doorpost when facing into the home.  They touch the mezuzah and pray when entering the home).  In 2001 the STCA rules committee enacted a set of rules to govern activities taking place in the common hallways.  Lynne Bloch chaired that committee and voted in favor of the rules, one of which was that “mats, boots, shoes, carts or objects of any sort are prohibited outside unit entrance doors.”  Until mid-2004 the STCA did not remove mezuzot (plural of mezuzah) or any other object affixed to the outside unit doors or doorposts; however, in 2004 after the building hallways were remodeled the STCA began removing and confiscating the mezuzot, using the above-referenced rule for support.  The STCA also began confiscating crucifixes, wreaths, Christmas ornaments, political posters “and Chicago Bears pennants.” 

The Blochs voiced their concerns to the STCA and its president, Edward Frischholz; however, their concerns were not heeded.   Instead Frischholz “accused Lynne Bloch of being a racist, called her a liar, encouraged other tenants to vote against her re-election to the Association’s Board of Managers, and told her that if she did not like the way the rules were enforced she should ‘get out.'”  He also admitted that he purposefully held Board events on Friday nights, knowing that she could not attend due to her religious obligations.  The Board rejects any rules change, and went on to warn the Blochs that they would be fined if they continued to display a mezuzah.  For over a year, each time the Blochs put their mezuzot back up, the STCA took them down, even on the occasion when Lynne Bloch and her family were out of the building at the cemetery for the funeral of Lynne’s husband.  On the occasion of the funeral, the STCA even left tables and chairs near the door in the hallway in place – tearing down only the mezuzah.

In September 2005 the Blochs filed suit, seeking an injunction to prevent the STCA from removing the mezuzot, and damages for emotional distress.  The Blochs asserted three theories based on the Fair Housing Act (FHA).  First, section 3604(a) makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex familial status, or national origin.”  The Blochs asserted that the “otherwise make unavailable” language allows claims for actions that take place after the sale, and that the actions of the STCA in this case constituted “constructive eviction,” by rendering Shoreline Towers unavailable to them and other observant Jews because their religion does not permit them to live in a dwelling where a mezuzah is not permitted to be affixed to the doorway.  The 7th Circuit ruled against the Blochs on this theory based on the fact that they never vacated the condominium, nor ever attempted to sell it to an observant Jew or any other individual.

The Bloch’s second claim was based on section 3604(b), which 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 therewith, because of race, color, religion, sex, familial status, or national origin.”  On this claim the 7th Circuit remanded the case to the district court, stating that because the Blochs purchased a dwelling subject o the condition that the STCA can enact rules that restrict the buyer’s rights in the future, section 3604(b) prohibits the Association from discriminating against the Blochs through its enforcement of the rules, even if the rules themselves are neutral as written.     

The Bloch’s final FHA claim was based on section 3617, which makes it unlawful to “coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected by …section 3604…of this title.”  The Blochs argued that this section supports a post-acquisition discrimination claim independent of any allowed under section 3604.  “Interference” with the enjoyment of fair housing rights, they argued, encompasses a broader swath of conduct than an outright deprivation of those rights.  Noting that other federal courts are split on this issue, the 7th Circuit concluded that section 3617 does support an independent claim, because to hold otherwise would give section 3617 no independent meaning.  The court reasoned that in the Bloch’s case, even though the STCA’s enforcement of the rules did not constructively evict them, it does not foreclose the possibility that the STCA “interfered” with their enjoyment of their section 3604 rights or “coerced” or “intimidated” them on account of their having exercised those rights.  To rule otherwise would require the Blochs to vacate their home before they could sue. 

In order to move forward with any FHA claim, the Blochs must be able to prove discriminatory intent (the FHA allows a claim under a theory of disparate impact, but the Blochs waived any right to raise a disparate impact claim by not arguing it in the district court).  As the court characterized it, “the evidence must indicate that the STCA was not simply indifferent when it reinterpreted the rules, the evidence must show that the STCA reinterpreted the rules with Jews in mind.”  The 7th Circuit concluded that the record included sufficient evidence of discriminatory intent that their case should be allowed to go forward at the district court, although the case “may be difficult to prove.”   Frischholz’s comments, the repeated actions to take down the mezuzot, and leaving the tables and chairs in place at the time of the funeral – only to take down the mezuzah, provided sufficient evidence for the claims to survive summary judgment.

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Latest in the Kelo v. New London saga

Gary Taylor

by Gary Taylor

According to the Hartford Courant,  Pfizer Inc. plans to close its research and development headquarters in New London, Connecticut and transfer most of the 1,400 people working there to another facility over the next two years.  The Pfizer facility was central to the redevelopment plan promoted by the New London Development Corporation as the justification for condemning Suzette Kelo’s home.  If you recall, the city’s exercise of eminent domain to acquire the Kelo home and fifteen others resulted in the 2005 U.S. Supreme Court decision in Kelo v. New London, in which the Court affirmed the constitutionality of using eminent domain for economic development purposes.  Apparently the mixed-use development of restaurants, retail shops, marinas, and waterfront conference hotel envisioned in the plan to locate on the site of the Kelo’s neighborhood never came to fruition.  Nothing stands on the site of the Kelo home, and now the linchpin of the plan, the neighboring Pfizer R&D facility, is moving across the Thames River to Groton as a result of the pharmaceutical company’s recent merger with Wyeth.

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This has nothing to do with land use…

Gary Taylor

…but if you follow the NFL you may have heard that the Federal 8th Circuit Court of Appeals ruled that Michael Vick is entitled to keep $16 million in roster bonuses paid to him by the Atlanta Falcons before his dogfighting conviction.  The decision was rendered under the court’s oversight of the collective bargaining agreement reached between the NFL and the Players Association in the early 1990s. 

The case, which also contains a good summary of the history of the collective bargaining agreement, can be found here:

 Reggie White, et. al., v. National Football League

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Fire-damaged home “abandoned” despite owner’s intentions to contrary

Gary Taylor 1 Comment

by Gary Taylor

Council Bluffs v. Harder
(Iowa Court of Appeals, November 12, 2009)

Fire-damaged house deemed “abandoned” under Iowa Code, despite owner’s continued payment of mortgage, taxes and insurance.

Anita Harder owned a house in Council Bluffs that sustained serious fire damage in September 2004.  It has not been inhabited since.  She moved out and her insurer initially paid some living expenses, but has not paid anything else. She has continued to pay her mortgage, property taxes and insurance. As time passed, neighbors complained to the City about the deteriorating condition of the house. The City determined the home was uninhabitable, and the fire department shut off the utilities.  Approximately two years after the fire the City filed a petition requesting a transfer of title to the property to the City, alleging the property had been abandoned and was a public nuisance.  All the while Harder was continuing to negotiate with the insurance company for payment. The case was eventually tried in April 2008, with the district court finding that the house was an abandoned property within the meaning of section 657A.10A, and awarded title to the City.

The Court of Appeals characterized the question as “whether an unoccupied house may be deemed ‘abandoned’ under Iowa Code section 657A.10A where it was rendered uninhabitable by fire three and a half years ago, has been boarded up since then, has been broken into repeatedly, and is the subject of complaints from neighbors.”

The Court of Appeals focused on the definition of “abandoned” found in Iowa Code 657A.1(1), and the eleven factors enumerated by the legislature in Iowa Code 657A.10A(3)  for the court to consider when determining whether a property has been abandoned.  Harder admitted that the property met several of the listed factors (it was unoccupied for more than six months, it did not meet code, it was not habitable, it had no utility service), but contended her failure to correct the situation was due to an ongoing dispute with her insurance company, and did not reflect an intent to abandon the property.  She cited her payment of the mortgage, taxes and insurance as evidence of her intent.  While the Court of Appeals recognized that these factors weighed against abandonment, they were not sufficient to overcome the other factors.  The court pointed to the underlying purpose of the statute, which is to prevent the “serious adverse effects of unsafe, abandoned homes on neighborhoods and communities….It would undermine the purposes of section 657A.10A to allow a homeowner’s private dispute with her insurer, even if meritorious, to serve as a defense to an abandonment proceeding.  If the insurer never paid, could the house remain boarded up and deteriorating forever?”  In a footnote the court analogized the situation to a bank foreclosure where the bank pays its property tax obligations but allows the home to deteriorate.  “This is not an abstract hypothetical” the court reasoned, “given the current troubles in our economy.”  The Court of Appeals affirmed the district court’s ruling that Harder abandoned the house. 

Justice Vaitheswaran dissented, concluding that the important factors weighed against a finding of abandonment:  (1) Harder continued to pay real estate taxes, mortgage payments, and insurance; (2) Harder continued to maintain the property; (3) there was no evidence of the presence of vermin, accumulated debris, or uncut vegetation; (4) the deteriorating condition of the home was a factor beyond Harder’s control because she did not have the benefit of insurance proceeds; and (5) Harder had no intent to abandon the home.

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Iowa C.A. assumes validity of pre-annexation agreement

Gary Taylor

by Allison Arends and Gary Taylor

NT Home Builders v. City of Buffalo
(Iowa Court of Appeals, April 8, 2009)

Provisions of pre-annexation agreement did not bind city council to rezone property to particular district classification. 

NT Home Builders and the City of Buffalo entered into a pre-annexation agreement when NT purchased real estate in the City with the intent of developing approximately 80 family units. The pre-annexation agreement, which was approved by the Buffalo City Council, required NT to, “request that the property be zoned for single family residences” and that NT “shall be subject to and comply with all other ordinances of the Buffalo Municipal Code.”  Buffalo’s zoning code states that newly annexed land shall come into the city zoned  “A- Country Home.”  This designation would allow NT to develop only about 60 units.    NT requested that Buffalo re-zone the property to B-1 Residential which would allow development of 82 units. The city denied NT’s request. NT filed suit against the City of Buffalo arguing that the pre-annexation agreement required Buffalo to zone the property B-1. The district court affirmed the City of Buffalo’s refusal to re-zone. NT appealed. 

As a preliminary matter the court addressed the question of the validity of pre-annexation agreements, stating:

“In recent years, there has been considerable controversy over whether a municipality may enter into an agreement with a private party binding the municipality to specific zoning in the future. We will assume, without deciding, that Buffalo’s city council could enter into an agreement obligating it to take certain zoning actions.  After all, the city council is Buffalo’s final zoning authority.”

NT first contended that the reference in the pre-annexation agreement to “single family residence” zoning required the city to rezone to B-1 Residential.  The Court of Appeals disagreed, determining that the reference did not require rezoning to B-1 because single family residential development could be accomplished either with A- Country Home or B-1 Residential.

The court also found that both parties were acting in “good faith” and both were oblivious to the inability of NT to construct 80 homes on A- Country Home land until after the pre-annexation agreement was signed. 

NT also argued that it had the legal right to whatever zoning was needed to erect 80 homes on the property. In light of the previous two findings, the court found that this would put an unfair burden on the municipality, because it would require them to assess the developer’s plans in detail and see to it that the developer’s interests were adequately protected under the contract. The court recognizes that this burden should lie with the developer, and that it is the developer who should be obligated to contract expressly for the zoning it needs. Therefore the court did not grant NT damages, “the district court’s finding of good faith on the part of both parties would appear to foreclose liability on this basis.”

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7th Circuit needs more evidence of secondary effects of adult entertainment establishment

Gary Taylor

by Allison Arends

New Albany DVD, LLC v. City of New Albany, Indiana
(Federal Seventh Circuit Court of Appeals, September 10th, 2009)
(For a map of the geographic boundaries of the federal courts of appeals click here)

Court remands case for evidence concerning trash and theft resulting from adult entertainment facility.

In 2003 the Plaintiff, New Albany DVD, bought property, secured all necessary licenses, and renovated a store for the operation of a store that sells adult books, magazines, and videos.  Plaintiff’s plans did not include live, on-site adult entertainment.  At the time of the purchase there were no zoning restrictions to the type of business New Albany DVD intended to operate, yet the City refused to carry out the final inspection of the store in February 2004, and on that day enacted a six-month moratorium on new adult businesses.  In March the City Council amended the zoning rules to forbid sexually-oriented business at the plaintiff’s site, and prohibited a sexually-orientated business from operating within 1,000 feet of a church or residential zone. The Plaintiff’s store is located 175 feet from the nearest church and 115 from the site of a proposed residential building. 

The plaintiff contended, among other claims, that under 42 U.S.C section 1983 and the First Amendment the studies used by the city to justify adverse secondary effects of adult stores on the community were flawed, in that those studies addressed the secondary effects of live adult entertainment facilities, not the retail-only type facility being proposed by the plaintiff.  The city argued that the studies used show a correlation between the concentration of sexually-orientated businesses and higher levels of crime and lower property values in a community; however, the city’s own expert “conceded that he knows of no research that shows… effects for various subclasses of business,” like the plaintiff’s retail-only store. 

The city also attempted to use its concerns over theft and trash to justify suppression of the plaintiff’s First Amendment right.  Using Alameda Books as precedent the Seventh Circuit quickly rejected the city’s theft argument by stating that it is paternalistic, and that the “police must protect the readers… rather than ease their workload by forbidding the speech,”  The Seventh Circuit found that New Albany did not supply sufficient evidence to support the the idea that adult bookstores located near churches or residences attract thieves.  The court goes on to reject the trash concern by stating that, the reduction in “adverse secondary effects may not be achieved just by curtailing speech… and that for this justification to work, it will be necessary to establish (a) how much sex-oriented litter an adult book- store generates; (b) who is likely to see that litter in the parts of New Albany where adult bookstores are allowed to operate; and (c) how much adult litter will remain in New Albany’s central business area (generated by adult corners of other businesses) if plaintiff is exiled to an industrial district or highway.”  The Seventh Circuit remanded the case to the district court to take further evidence concerning the city’s theft and trash justifications, and to apply intermediate scrutiny to New Albany’s ordinance. 

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First Amendment claim suffers Chernobyl-like fate before 7th Circuit

Gary Taylor

by Allison Arends

Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources
(Federal 7th Circuit Court of Appeals, October 14th, 2009)
(For a map of the geographic boundaries of the federal courts of appeals click here)

Park authority’s refusal to allow plaintiff’s pamphlet in display racks did not cut off alternative avenues for plaintiff’s message.

Illinois Beach State Park is a large state park abutting Lake Michigan in northeastern Illinois, with two million visitors a year.  State officials and the state agency that operates the park refused to allow the plaintiff to place its two-page pamphlet in the park’s display racks.  The pamphlet recommended “commonsense approaches… for minimizing exposure to you and your family from asbestos contamination while at the beaches of Illinois Beach State Park.” Asbestos was known to have contaminated the beaches of the park from a nearby site on which Johns-Manville had once manufactured building materials.  The pamphlet goes on to describe the specific instances where asbestos could be an issue when visiting the park as a result of the sand, and also describes how to reduce the chances of being affected. The Beach’s display racks contain a variety of brochures selected by park officials, and up until 2004, included a “fact sheet” about the asbestos in the park. The park authorities do not dispute the fact that the park does in fact contain asbestos fibers, but recent studies have found that the levels present in the beach sand were not enough to affect human health. The plaintiff, a non-profit corporation that helped create and continues to support the park filed suit against state officials and the state agency that operates the park, charging infringement of free speech for refusal to allow the pamphlets in the display racks. 

The author of the court’s opinion, Justice Richard Posner, first observd that “lawyers in federal appeals invariably frame their arguments in language from Supreme Court opinions.  In this case which involves a First Amendment issue the lawyers have treated us to a barrage of unhelpful First Amendment jargon.” The “jargon” described the different kinds of public forums and their different standards for limitations on private speech.  A “traditional public forum” is a street or park, or some other type of public property that has long been used for expressive activity.  A “designated public forum,” such as a public theater, is one which was created specifically for expressive activity by private persons. The third category-the “non-public forum”- is made up of government-owned facilities intended for a specific purpose, and allows the government to limit expression to only that which furthers the purpose for which it was created. Justice Posner failed to see how “forum analysis” was helpful in deciding most First Amendment cases.  “The constant [among all these cases] is that regulation is not to be used as a weapon to stifle speech.”

Plaintiff argued that the park falls within the definition of a “traditional public forum” and therefore private speech can only be limited by very narrow and specific circumstances; however, the court determined that forum analysis did not address the issue of the display racks.

Which brings us to the compelling practical objections to the plaintiff’s position. Display racks crammed with brochures and pamphlets are omnipresent in public property in the United States, not only parks and other areas of public recreation but also turnpike service plazas and the lobbies of government buildings. If the plaintiff’s conception of freedom of speech prevailed, every clerk responsible for stocking such a display rack would face a potential First Amendment suit by an interest group that wanted to influence government action or public opinion.

The defendant’s argued that the public forum analysis does not apply because this case is an issue of “government expression” and therefore they have a right to restrict the plaintiff’s “frightening” pamphlet because the selection of pamphlets in the park is a “vehicle of the government’s expression,” and to allow the pamphlet would cause visitors to, “flee the Park” contradicting the message the Park was intending to make. The pamphlets chosen for the racks are designed to attract people to the park, and to Illinois. “The choice of the materials conveys a message that is contradicted by the plaintiff’s pamphlet.” 

The message of the publications in the display racks is: come to the park and have a great time on the sandy beaches. The message of the plaintiff’s pamphlet is: you think you’re in a nice park but really you’re in Chernobyl, so if you’re dumb enough to come here be sure not to step on the sand because that would disturb or agitate it, and to scrub under your fingernails as soon as you get home.

The court found that denying the plaintiff’s access to the display racks did not cut off other avenues of speech at the Park. Because no special permit or license is required to hand out pamphlets to Park visitors, and therefore alternative avenues of expression were still open to the plaintiffs, the court affirmed there was not violation of the plaintiff’s First Amendment rights.

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