Nebraska Supreme Court addresses standing to challenge annexation, and Open Meetings Act issues

by Melanie Thwing

Schauer v. Grooms
(Nebraska Supreme Court, August 6, 2010)

Curt and Susan Schauer live just outside of Ord in Valley County, Nebraska. In 2005 the City decided to recruit a developer to build and operate an ethanol plant on undeveloped land. Eventually, Redevelopment Area #3 (located 4 miles outside of the City’s border, and 1/8th of a mile from the Schauer’s farm) was chosen as a potential plant site.  Redevelopment Area #3 was declared blighted, then the city annexed the land to make TIF financing available for the project. 

After Val-E Ethanol was selected to construct and operate the plant numerous city council meetings were held. These meetings spanned from February to November 2005, from the time the land was blighted, a plan adopted, a financing agreement was decided and the land annexed.  These meetings were publicly noticed, consistent with Nebraska’s Open Meetings Act; however, on June 1, 2005 a dinner and tour of a similar ethanol facility were hosted by the Valley County Economic Development Board hosted without public notice.  Invitations were sent to numerous county residents including Schauers (who did not attend). Three of five city council members, and the mayor, were in attendance. (The city council consists of five people, overseen by the mayor who provides the deciding vote if there is a tie). The council members and the mayor were split into separate groups to tour – one group watched a video explaining the ethanol-making process while the other toured the plant. At the dinner the members of the council and the mayor discussed no information relating to the proposal.

Four months after the city council approved the annexation, the Schauers filed an action to void the annexation and to claim a violation of Nebraska’s Open Meetings Act. Summary judgment for the City was granted, and the Schauers appealed. 

The Nebraska Supreme Court first investigated whether the Schauers had standing to challenge the annexation.  The Court reviewed previous caselaw on the rights of landowners to challenge municipal annexations.  “This Court has never held that a neighboring landowner, who neither owns a property interest in the annexed territory nor will be subjected to new zoning regulations as a result of annexation has standing to challenge the annexation of someone else’s land….” Further, the Court noted that standing has never been conferred in an annexation challenge “simply because of proximity.”  The Court concluded that the Schauers did not have standing to challenge the annexation.

The Court did find the Schauers, as citizens of Valley County, had standing to bring a claim for violation of the Open Meetings Act.  The Schaurs first argued that because the City described Redevelopment Area #3 as “within the City” in various documents prior to annexation of the land it was misleading to the public. The Court disagreed, finding the contents of the notice reasonable.  The notices described the exact location of the property and included a map of the vicinity.

Next, the Schauers contended that the minutes of the city council meetings failed to identify an established method of notice, which they claim violated the Open Meeting Act. The Court also dismissed this claim.  It had been the long standing history to post agendas at the township library, the County courthouse, and city hall, as well as being made available at the city clerk’s office. The Open Meetings Act simply requires the public body to choose a method of notice, and that the method chosen be recorded in the minutes. In this case, the city clerk was able to establish through testimony that a consistent method of notification had been utilized.

The Schauers finally alleged that the tour and dinner on June 1, 2005 constituted a meeting, that public notice of the meeting was not provided, and it therefore violated the Open Meetings Act.  The Court again disagreed.  Under §84-1410 of the Open Meetings Act no informal meetings can be used for the purpose of circumventing meeting requirements. This however, does not apply to any chance meetings, or travel of members of the public body where no action is taken on matters they supervise.  The Court found that no policy decisions were made or discussed during the tour and dinner.  The separation of city council members into smaller groups was not done to circumvent the Open Meetings Act; rather, the small groups were acquiring information that was later commented on by the public in an officially-recognized meeting of the council. The Court stated that the Open Meetings Act, “does not require policymakers to remain ignorant of the issues they must decide until the moment the public is invited to comment on a proposed policy.” One purpose of the Open Meetings Act is to balance the public’s right to be heard and the public’s “need for information to conduct business.”

The Court then observed that there were never more than two city council members together at the same time during the evening.  The Court noted that the presence of the mayor was immaterial, as the mayor is not a member of the city council.  “The fact that a statute gives a certain official the right to cast the deciding vote in case of a tie…does not, of itself, make that official a member of that body for the purposes of ascertaining a quorum or majority….”  

The decision of the district court was affirmed.

Iowa Smart Planning Comprehensive Planning grants now awarded

by Gary Taylor

The Rebuild Iowa Office announced Tuesday the cities and counties receiving grants from the Iowa Smart Planning Comprehensive Planning Grant Program.  My previous blogpost explaining the program in detail is available here.  $1 million is being awarded to 38 cities and counties to develop plans that meaningfully incorporate 10 Iowa’s Smart Planning Principles.

Three city-led plans and five county-led plans (marked with ** below) are multi-jurisdictional plans, which received additional consideration in grant scoring. 

The Iowa Department of Economic Development will be administering the program now that the awards have been made.

Cities receiving grants:

Afton, $9,000 Cumming, $28,000 McGregor, $7,500
Burlington, $50,000 Dow City, $4,000 Missouri Valley, $7,500
Carroll, $12,000 Durant, $15,000 Mount Ayr, $9,375
Cedar Falls, $50,000 Granger, $28,000 Newton**, $18,000
Cedar Rapids, $50,000 Iowa City, $50,000 Palo, $5,500
Cherokee, $14,000 Keota,$16,500 Riverdale, $10,000
Clinton, $30,000 Lewis, $7,500 Stanton $7,500
Clive, $50,000 Lorimor, $4,000 Vinton, $5,682
Columbus Junction**, $3,750 Manchester, $29,680 Washington, $27,033
Council Bluffs, $50,000 Manning, $6,000  
Cresco**, $22,500 Marshalltown, $47,700  

Counties receiving grants:

Delaware County**, $39,000 Hardin County**, $61,250 Winneshiek County**, $60,000
Dubuque County**, $89,000 Jones County, $5,290  
Fayette County**, $31,250 Linn County, $38,490  

Iowa Smart Planning Taskforce issues final report

by Gary Taylor

The Iowa Smart Planning Taskforce submitted its final report to Governor Culver and the General Assembly on November 15, meeting the deadline set forth in SF 2389.  The Taskforce was charged with investigating and making recommendations related to the following subjects:

  • Integrating the Iowa Smart Planning Principles into appropriate state policies and programs.
  • Determining an effective and efficient coordination and information sharing system to support local and regional planning.
  • Suggesting appropriate technical and financial incentives to support local and regional planning.
  • Developing a framework for regional planning.

One-sentence summaries of the Taskforce recommendations follows; however, readers are urged to review the full Final Report of the Smart Planning Taskforce (accessible here) to fully understand each recommendation, and how they work together to propose a framework for state, regional and local comprehensive planning in Iowa. 

1. State Level Coordination
1.1: Establish the Office of Planning and Geographic Information Systems (OPGIS) and OPGIS Coordinating Council.
1.2: Develop an accessible statewide GIS and data system.
1.3: Integrate the Smart Planning Principles into the State’s Enterprise Strategic Planning Process.
1.4: Provide training and technical assistance to state agencies to facilitate integration of Smart Planning Principles into state investment decision-making processes.
1.5: Identify State of Iowa Smart Planning Goals and Benchmarks as measurable goals and benchmarks for the state.

2. Regional Planning Framework
2.1: Identify Councils of Governments as the organizations responsible for comprehensive regional smart planning throughout Iowa.
2.2: Comprehensive regional smart plans should be completed within five years after legislation is enacted.
2.3: Create a sustainable funding source for regional smart planning.
2.4: Councils of Governments should establish a Plan Review Committee in each region for local smart plan review.
2.5: A regional entity or entities should be established or identified in Central Iowa for the purposes of regional planning, implementation, and local smart plan review.

3. Financial Incentives & Technical Assistance
3.1: Create a sustainable funding source for a smart planning grant program at the state level for local smart plan development and implementation.
3.2: Expand the menu of financing options available for local governments to develop and implement smart plans.
3.3: State agencies should give additional consideration for having a qualified smart plan to receive state funding for infrastructure and public facilities projects that affect land use, transportation, stormwater management, and floodplain protection.
3.4: Create a smart planning education program and toolbox for local government staff, officials, and the public.

4. Watershed Planning & Implementation
4.1: Enhance watershed planning, coordination, and implementation by creating goals and strategies referencing land use for each of Iowa’s six major river basins and three major river regions.

5. State Code Consistency
5.1: Make the definition of “local comprehensive plan” uniform through the Iowa Code.

City failed to establish injury in Fair Housing Act claim

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.

New York adopts Smart Growth Public Infrastructure Act

by Melanie Thwing

In September, the state of New York enacted the Smart Growth Public Infrastructure Act.  This new act is intended to “maximize the social, economic and environmental benefits from public infrastructure development through minimizing unnecessary costs of sprawl development including environmental degradation, disinvestment in urban and suburban communities and loss of open space.” It requires thirteen named state agencies and “all other New York authorities” to prepare Smart Growth Impact Statements before authorizing, approving, undertaking, supporting or financing any public infrastructure project.  This not only applies to state-owned or state constructed facilities, but also to “publicly supported infrastructure,” such as roads, water supplies, sewers, water treatment plants, public housing, and public schools when the construction, expansion or redevelopment of the infrastructure requires authorization or subsidies from the state agency. 

The impact statement must show how the project is consistent with ten Smart Growth Criteria set forth in the bill, which are:

–  To advance projects for the use, maintenance or improvement of existing infrastructure;
–  To advance projects located in municipal centers;
–  To advance  projects in developed areas or areas designated for concentrated infill development in a municipally approved comprehensive land use plan,  local waterfront revitalization plan and/or    brownfield opportunity area plan;
–  To protect, preserve and enhance the state’s resources, including agricultural land, forests, surface and groundwater, air quality, recreation and open space, scenic areas, and significant historic and archeological resources;
–  To foster mixed land uses and compact development, downtown revitalization, brownfield  redevelopment, the enhancement of beauty in public spaces, the diversity and affordability of housing in proximity to places of employment, recreation and commercial development and the integration of all income and age groups;
–  To provide mobility through transportation choices including improved public transportation and reduced automobile dependency;
–  To coordinate between state and local government and intermunicipal and regional planning;
–  To participate in community based planning and collaboration;
–  To ensure predictability in building and land use codes; and
–  To promote sustainability by strengthening existing and creating new communities which reduce greenhouse gas emissions and do not compromise the  needs of future generations, by among other means encouraging broad based public involvement in developing and implementing a community plan and ensuring the governance structure is adequate to sustain its implementation.

Each state agency is required to form a “Smart Growth Advisory Committee”  made up of agency staff.  The committee is responsible for preparing the impact statements and also advising the agency on how to further its goals for smart growth. 

For a link to this act click here.

Board of Adjustment established record sufficient to support denial of conditional use permit

by Gary Taylor

A-Line Iron & Metals, Inc. v. City of Cedar Rapids Zoning Board of Adjustment
(Iowa Court of Appeals, November 10, 2010)

A-Line Iron & Metals, Inc. filed a petition for a conditional use permit with the city of Cedar Rapids, seeking to operate a business to recycle scrap metal and iron (meeting the definition of “salvage yard” under the city’s zoning code).  The location was zoned I-2, “General Industrial Zone.” Salvage yards seeking to locate in I-2 must receive a conditional use permit, and the request must go through the city planning commission for review and recommendation prior to being heard by the zoning board of adjustment (ZBA).
The city’s Community Development department prepared a staff report for the planning commission recommending that the petition could be approved if certain conditions were fulfilled. The report found the requested conditional use was in accord with the future land use designation for the site. The planning commission recommended approval, subject to certain conditions.

Prior to the ZBA hearing, twenty-seven written complaints from nearby property owners were filed with the ZBA.  These written complaints, and the complaints voiced at the hearing, generally revolved around concerns over noise and increased truck traffic.  The attorney for a nearby radio station pointed out that on the future land use map the property was designated “commercial/industrial,” and salvage yards were not permitted in this category.  When asked about this issue at the ZBA hearing the city planner acknowledged the proposed use was not in accord with the future land use map, but expressed the opinion that “when the future land use map was drafted it was an oversight by the technical committee as it should have been shown as general industrial because that’s exactly what the property is for.”

The ZBA denied the conditional use permit.  No written findings of fact were filed by the ZBA; however, extensive minutes were recorded and approved.  In the minutes was a nearly-verbatim comment by the vice chair of the ZBA:

I . . . welcome new employees and new businesses to Cedar Rapids. This is very complicated and a lot of objectors so I went to the book, there is no question that in this district you have the right to apply for a conditional use of a salvage yard . . . . However, I would go to what I would call the three Cs. As I go back into the book here and look at the three Cs it was pointed out that I would just call them consistency, or consistent character, and compatible and as I look at this and as much as I would like to see a new business and new employees, I would say in my opinion we don’t have consistency with the land use. We are out of character for the neighborhood and being out of character it lacks the compatibility that I would like see . . . .  

A-Line filed a petition with the district court.  The district court found the minutes, the transcript of the hearing, and the documents presented at the hearing provided sufficient record to review the ZBA decision.  The district court found the reference to the “three C’s of consistency, character, and compatibility” were clearly a reference to the section of the city’s municipal code that sets forth criteria for approving conditional use permits.  The court determined that the ZBA had considered each of the standards in the code, even though each standard was not specifically discussed.  The court concluded there was substantial evidence in the record to support the ZBA decision.  A-Line appealed the district court decision to the court of appeals.

The court of appeals began by reciting the following principles found in Iowa caselaw regarding the need for ZBAs to develop adequate records of their proceedings:

  • Boards of adjustment shall make written findings of fact on all issues presented in any adjudicatory proceeding.
  • It is sufficient if a board substantially complies with this requirement.
  • There is substantial compliance if the rule has been followed “sufficiently so as to carry out the intent for which it was adopted,” which is “to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.”
  • The reviewing court may determine substantial compliance by considering the board’s decision in the context of the meeting where the vote was taken as well as the views expressed by board members during the meeting.

The court of appeals concluded that the ZBA’s findings were sufficiently recorded so as to permit a court to review those findings. The minutes of the meeting and the transcript from the meeting clearly showed the ZBA denied the petition because the intended use of the property was not consistent with the use of nearby property, did not match the character of the neighborhood, and was not compatible with surrounding property. After the city planner advised the ZBA that the conditional use was not consistent with the future land use map, albeit due to an oversight, the vice chair of the ZBA commented that “in my opinion we don’t have consistency with the land use . . . are out of character for the neighborhood, and . . . it lacks compatibility.” The ZBA then proceeded to vote to deny A-Line’s conditional use application.

A-Line asserted the record did not support the denial because it showed that the ZBA addressed only three of the seven standards required for granting a conditional use permit.  The court of appeals pointed out that under the city’s code a conditional use permit can only be granted if all seven of the standards are met, and concluded that the ZBA considered the standards sufficiently to determine that three (those addressing consistency, character, and compatibility) were not met. Thus, addressing the other four standards would be unnecessary.

Finally, A-Line contended that the objectors raised only “generalized, unsubstantiated and speculative concerns that could not rise to the level of substantial evidence.” Noting that expert testimony is generally not required, and a ZBA may rely on anecdotal reports and “commonsense inferences drawn from evidence relating to other issues such as use and enjoyment, crime safety, welfare, and aesthetics to make a judgment,” the court of appeals concluded that substantial evidence existed to support the conclusion that the proposed use would not be consistent with the intent and purpose of the future land use policy plan.

County attorney serving multiple roles in condemnation case creates impermissible likelihood of bias

by Melanie Thwing

Davenport v. Morris County Board of County Commissioners
(Kansas Supreme Court, September 10, 2010)

In February of 2000, the Morris County Board of County Commissioners in Kansas decided to vacate 2 roads. Davenport Pastures, LP filed a written application for damages because these roads accessed a ranch they leased. Without a hearing the Assistant County Attorney drafted a letter on the Boards behalf, rejecting the application. The matter was brought before the district court, which awarded Davenport $30,000.

The County Board appealed and the Court of Appeals remanded the case back to the County Board for further proceedings. After the remand the Assistant County Attorney pressed the Board to have a hearing, and on separate occasions took two commissioners to view the roads. At the attorney’s recommendation appraiser David Sundgren was hired. A hearing was held and the attorney acted as legal council for the Board, and cross-examined Davenport Pastures’ experts as well as Sundgren, who appraised damages of $4,050. The Assistant County Attorney also ultimately wrote the final decision of the Board.

Arguing that the Assistant County Attorney’s multiple roles violated due process, Davenport Pastures appealed. Neither the district court nor the Court of Appeals found sufficient evidence that his dual roles, “actually affected the Commission’s decision.”

Before the Kansas Supreme Court, Davenport Pastures argued that the multiple roles played by the attorney deprived them of their Fourteen Amendment right to due process. The Court cites Powers v. State Department of Social Welfare where the Department appointed its own attorney to preside over a “fair hearing,” and where the lawyer later represented the Department in the appeal. The Court in Powers found the double roles, “highly improper,” and a clear conflict of interest.”  Further, in Coats v. U.S.D. a similar situation occurred where a school’s selection board choose one of its own attorneys to serve on a hearing committee. The Court in Coats found, “[T]he school board’s appointment of its own attorney to the hearing committee violated the rule of fundamental fairness… Such a blatant defiance of due process cannot be countenanced…”

The Kansas Supreme Court concluded that having the Assistant County Attorney represent the Board on almost all matters in this proceeding caused a risk of bias that is too high to be constitutional. He first played a role of legal advisor, second as the sole advocate for the Board, and third as an adjudicator because he had advised the Board to hire Sundgren, brought the commissioners to see the road, and drafted the decision. The Court observed that “…due process is violated when, under all the circumstances of the case, the ‘probable risk of actual bias [is] too high to be constitutionally tolerable.” The case was remanded back to the Board County Commissioners for reconsideration.

City failed to show special benefits conferred on abutting landowners when assessing for street improvements

by Melainie Thwing and Gary Taylor 

Hubbard v. City of Pierre
(South Dakota Supreme Court, June 30, 2010) 

In 2007 the City of Pierre, South Dakota began an improvement project on the street Wade and Lisa Hubbard live on. This project was primarily to replace water mains, but also included replacing sewer mains, resurfacing streets, and replacing curb, gutter, and driveway portions that had been installed between 1930 and 2006. In February of 2007 the City proposed a resolution to issue special assessments at a set rate per linear foot cost of reconstructed curb and gutter, and at a set rate per square foot cost for reconstructed driveway approaches.  The Hubbards, Ben Orsbon, and several other petitioners appeared at the Commission meeting that month and argued that the special assessment was an unconstitutional taking of private property, but the resolution later passed. 

After the assessments were filed in November 2007, the petitioners (with counsel present) again contested the assessment citing the Fifth Amendment of the U.S. Constitution, and the South Dakota Constitution Article VI § 2 which states, “[p]rivate property shall not be taken for public use, or damaged, without just compensation which will be determined according to legal procedure established by the legislature.” The petitioners argued that the amount of the special assessments levied exceeded the benefits provided to the abutting landowners.  They claimed that the replacement of curb, gutter and driveway approaches provided no benefits to the abutting landowners.  Alternatively, petitioners argued that the city should have calculated the special assessments according to South Dakota Codified Law (SDCL) 9-45-32 which provides that the assessment should be levied, “according to the benefits determined by the governing body,” rather than SDCL 9-45-30 which provides that, “the rate of assessment per front foot,” is the proper way to levy special assessments.  Nevertheless, the City still approved the assessments, and the petitioners filed for a permanent injunction with the circuit court.  The circuit court determined that under either statute a showing of benefits conferred is required, and that the assessments were unconstitutional under the South Dakota and U.S. Constitutions.  The city then appealed to the South Dakota Supreme Court. 

The Supreme Court stated the framework for the constitutional analysis:   

If a local public improvement confers a special benefit on private property, a special assessment can be constitutionally imposed if the assessment does not exceed the benefit received. A public improvement is considered local if it benefits adjacent property, as distinguished from benefits diffused throughout the municipality….Determining whether a project confers special benefits requires a finding that the assessed property receives a benefit above and beyond or differing from the benefit enjoyed by the general public.
During the circuit court hearing Hubbard testified that his home is in a three-block historic neighborhood, and that the curb that was replaced was an older style curb with square corners, was still in good shape, and that, in fact, the new curb provided less, rather than more protection against stormwater damage.  Thus, no property value was added.  Orsbon, who was an AICP-certified planner with a masters degree in planning and over twenty years experience in the field, stated that because a gutter and curb already existed, were in good condition, and could have lasted thirty more years, the replacement of the gutter and curb added no benefits to his property. An assessor testified that no property value was added with the replacements.  On the other hand, the city’s engineer testified that the curb and gutter were failing in several places along the streets in question, and that all properties benefitted from replacement of existing curb and gutter with a uniform design. 
The circuit court found that the city engineer’s testimony that all properties benefitted from the uniform design showed that the benefits provided to the petitioners were, in fact, no different than those provided to the general public.  It concluded that the general public, and not specific property owners, were the beneficiaries of a uniform design.  The circuit court noted that its decision was based on “strong, direct, clear, and positive proof” from the petitioners.  The Supreme Court found no evidence of a “clear mistake” in the ruling of the circuit court and, therefore, affirmed the lower court’s decision in favor of petitioners.   

FCC refuses to reconsider cell tower shot clock ruling

by Gary Taylor

On November 18, 2009 the Federal Communications Commission (FCC) issued a declaratory ruling that established a “shot clock” for local zoning authorities acting on wireless facilities siting applications. Under the ruling, local governments have 90 days to act on requests for collocations (placing antennas on existing towers) and 150 for all other applications. Previous blogposts that explain the FCC ruling in greater detail can be found here.

On December 17, 2009 a Petition requesting reconsideration of the rules was filed with the FCC by the American Planning Association, National Association of Counties, the National League of Cities and others; however, on August 4, 2010 the FCC denied the Petition for Reconsideration, leaving the November 2009 order unchanged.  The August 4 order can be accessed here.

No BLUZ next week

How can you have the BLUZ when you’re in Council Bluffs?  I’ve come to the conclusion that you just can’t!  There will be no BLUZ next week while the APA-Iowa Annual Conference, “Sustainably Rebuilding the Heartland,” is taking place in Council Bluffs.  You still have time to join us next week.  Simply click here and go to the conference registration packet.

The BLUZ will return November 1 with the steel gray skies of late autumn.





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