Year: 2010

Minnesota Supreme Court adopts restrictive interpretation of “unnecessary hardship”

GT NOTE:  This is an interesting case for Iowa planners and board of adjustment members because the Minnesota Supreme Court is interpreting variance language in the Minnesota statutes that is identical to that found in the Iowa Code.  They reach the same conclusions as previous Iowa court cases.

by Melanie Thwing

Krummenacher v. City of Minnetonka
(Supreme Court of Minnesota, June 24, 2010)

JoAnne Liebeler owns property in Minnetonka, MN. There is a detached garage on the property, which sits 17 ft from the property line. Minnetonka City Code §300.10 states that a detached garage must be set at least 50 feet from the property line, but the structure was built before this ordinance and thus grandfathered in. In March 2008, a variance was filed by Liebeler, which is required by Minnesota Stat. to add a living space above the nonconforming garage.

A public hearing occurred in March where her neighbor, Krummenacher, spoke against the variance. He argued that this addition obstructed his view. The request was ultimately approved with the planning commission stating: 1.) an undue hardship would occur without it, 2.) a unique circumstance of nonconformity,  3.) compliance with the intent of the ordinance, and 4.) the variance would not alter the neighborhood character.

Krummenacher challenged the Commissions decision with the City Council, who ultimately sided with the Commission. Krummenacher then filed an appeal in district court, which affirmed, and the Court of Appeals, which also affirmed. Finally he appealed to the Supreme Court of Minnesota.

He argued that 1.) Minnesota Stat. § 462.357 does not allow the City to grant a variance that would expand a nonconforming use, 2.) the approval was arbitrary and 3.) the district court erred because they did not require the City to produce additional documents.

Krummenacher first argues that Minnesota Stat. § 462.357 1(e) does not allow the expansion of a nonconforming use. The statute itself states in part A. that any nonconforming use in place before the statute may continue to be used but not expanded. However, part B. states that they may permit expansion to, “prevent, and abate nuisances and to protect the public health, welfare, or safety.” Section B. also grants cities discretion to issue permits.

The Supreme Court looks at Minnetonka City Code § 300.29(g)(1) which allows for expansion as long as a variance is obtained. Because the State entrusted the power within the city to issue permits, and because Liebeler did this, the City was within its authority to consider a variance for a nonconforming use.

Next, Krummenacher argues that the decision was arbitrary because the correct standard to define “undue hardship” was not applied. He argues that the standard in Minnesota Stat. § 462.357 subd. 6., requires proof of the property not being usable, that the landowner is in a difficult spot because the structure was in place before the property was bought, and the essential character of the neighborhood would not be altered.

The City urged that the “reasonable manner” standard set forth in the Minnesota Court of Appeals case of Rowell v. Board of Adjustment of Moorhead. was used, and is an appropriate interpretation of state law.  It claimed the variance was a reasonable request because of the overall topography of the land. The Minnesota Supreme Court, however, declined to follow the lead of the Court of Appeals in Rowell.  It pointed out that the plain language states that the property must show that it cannot be put to “reasonable use” without the variance.  The Supreme Court looked to a decision in Stadsvold where they defined the difference between “undue hardship” which applies to Minnesota municipalities, and “practical difficulties” which applies to area variances in Minnesota counties. This distinction does not leave any room for the “reasonable manner” standard from Rowell. Instead the precedent from Curry v. Young is the correct to use, which establishes a more rigorous standard for “undue hardship.”  Thus the “reasonable manner” standard used by the City, although it has been used for over 20 years, cannot continue to be used.  The Court explained:

We recognize that the Rowell “reasonable manner” standard represents a longstanding interpretation of the undue hardship standard in Minn. Stat. § 462.357, subd. 6, and that Minnesota municipalities have been granting variances under the “reasonable manner” standard for many years. We also recognize that our decision will result in a restriction on a municipality’s authority to grant variances as compared with the “reasonable manner” standard. But whatever value we may find in a more flexible standard, particularly with regard to area variances, we cannot ignore the plain language of the statute. See State v. Peck, 773 N.W.2d 768, 773 (Minn. 2009) (“We have no opportunity to ignore part of the legislature’s definition.”). We are unable to interpret the statutory language to mean anything other than what the text clearly says—that to obtain a municipal variance, an applicant must establish that “the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls.” Minn. Stat. § 462.357, subd. 6. Therefore, unless and until the legislature takes action to provide a more flexible variance standard for municipalities, we are constrained by the language of the statute to hold that a municipality does not have the authority to grant a variance unless the applicant can show that her property cannot be put to a reasonable use without the variance.

Minnesota courts, Variances , ,
Leave a Comment on Minnesota Supreme Court adopts restrictive interpretation of “unnecessary hardship”

Registration still open for APA-Iowa Annual Conference

Gary Taylor

Registration for the 2010 APA Iowa Annual Conference, being held in cooperation with the APA Nebraska Chapter is still open.  This year’s conference, themed, “Sustainably Rebuilding the Heartland” will be held from Wednesday, October 27th thru Friday, October 29th at the Mid America Center in Council Bluffs. 

The conference registration packet is available here, and includes the full conference schedule. 

Attendees will have the opportunity to earn up to 14.5 AICP Certification Maintenance Credits (CM), including the required Law and Ethics credits.

Four Mobile Workshops are planned, highlighting the exciting changes occurring in the Council Bluffs/Omaha metro area, including tours of the Aksarben Village in Omaha, Brownfield Redevelopment Tour, Downtown Redevelopment Tour and a Bike Tour highlighting regional trail planning efforts.

The keynote speaker Eric Corey Freed, LEED AP, a Principal with organicARCHITECT and acclaimed author of “Green Building and Remodeling for Dummies” will share his story about not “why” we need to go green, but “how” we can go green in his Detroit, Dallas & Despotism: a 3D View of Sustainability presentation.

Education/Conferences
Leave a Comment on Registration still open for APA-Iowa Annual Conference

Minnesota city’s moratorium to study pawnshops deemed valid

Gary Taylor

by Gary Taylor

Pawn America Minnesota, LLC v. City of St. Louis Park
(Minnesota Supreme Court, August 26, 2010) 

In 2007 a prospective pawnbroker was required to submit a zoning application, and an application for a pawnbroker’s license in order to operate a pawnshop in St. Louis Park, Minnesota (city).  In June of that year Pawn America submitted just such a zoning application.  The assistant city zoning administrator issued a zoning verification letter confirming that the intended use of the property complied with the City’s zoning code. Because of public concerns about the proliferation of pawnshops, the city council brought forward for consideration a moratorium on new pawnshops and a proposal to initiate a study in order to decide whether any additional conditions or restrictions on pawnshops should be adopted. Upon learning of the city council’s intent to vote on the moratorium Pawn America immediately entered into a lease agreement and submitted to the city a signed certificate of occupancy and land use registration application, and requested immediate issuance of a pawnbroker license. The city refused, and soon thereafter adopted the moratorium that temporarily prohibited new pawn-shops, and stopped any further processing of pending pawn-shop licenses. The zoning study was completed two months after the moratorium went into effect, and as a result of the study the city amended the zoning code to make pawnshops conditional uses which included a distance separation requirement between pawnshops, gun shops, liquor stores, and certain other business from being located within 350 feet of residentially zoned property.  The separation requirement precluded Pawn America from opening its pawnshop at the proposed location.                                                                  �
Pawn America asked the district court to declare the interim ordinance invalid because it was adopted for the improper purpose of delaying or preventing Pawn America from opening a pawnshop. The city moved to dismiss the claims. The district court dismissed Pawn America’s claims because the moratorium was not arbitrary or capricious.  The court affirmed previous caselaw stating that moratoria to preserve the status quo pending further study of zoning  are permissible. The court went further saying the mere adoption of an interim ordinance after learning of a particular proposed use of property does not, in itself, mean that enactment of an ordinance is arbitrarily enacted to delay or prevent the project. The Minnesota court of Appeals affirmed the district court, and Pawn America appealed to the Minnesota Supreme Court.�
The court examined the case in light of Minn. Stat. § 462.355(4)(a) which gives authority to a municipality, under certain conditions, to adopt a moratorium “for the purpose of protecting the planning process and the health, safety and welfare of its citizens.”  It determined that the city enacted the moratorium to give it time to study the situation and make informed decisions for the long-term welfare of the city.  While the court was cognizant of the hostility surrounding the location of a pawnshop at Pawn America’s proposed site, nothing in the statute precluded the city from adopting the moratorium when the city knew that it would affect only one particular entity, or that it was adopted in response Pawn America’s pending application. The court concluded that the city was acting to protect the planning process and the health, safety and welfare of its citizens and that the moratorium was not unreasonable, arbitrary, or capricious.

Minnesota courts, Moratoria , ,
Leave a Comment on Minnesota city’s moratorium to study pawnshops deemed valid

Writ of mandamus appropriate to compel city to enforce its zoning ordinance

Gary Taylor

by Gary Taylor

Paulson v. City of Ventura and JBS Auto Parts
(Iowa Court of Appeals, October 6, 2010)

The Paulsons purchased Lots 2 and 3 in the Brad Smith subdivision in Ventura in 2006. They built a duplex on Lot 2 and live in the side next to Lot 1. Defendant JBS purchased the Dome Bait & Tackle property, which is adjacent to Brad Smith Lot 1, in 2005. Then in 2007 JBS purchased Brad Smith Lot 1.

In 2007 JBS sought a one-year “conditional use variance” in order to continue to use Lot 1 to store boat hoists, as had been done for years. At the hearing on the request, JBS requested that a conditional use instead be granted for eight years. The Ventura board of adjustment granted a two-year limited conditional use permit, with conditions that “the storage of the boat hoists shall be in such a manner, as to minimize the depreciation of the adjoining residential property,” and that “the owners of the adjoining residential property will each incur half the cost of planting a landscape screen between the two properties.”

The Paulson’s challenged the board’s actions, and the court annulled the board’s decision because it lacked any evidence that the conditions would be effective in alleviating the depreciation of Paulsons’ property.  Because it annulled the board’s conditional use permit the court stated that the city of Ventura “is not required to take any action against [the] use of Lot 1,” but Paulsons had suffered injury and, “in the event Ventura takes no action,” would continue to suffer irreparable injury without an adequate legal remedy.  Rather than grant an injunction as request by Paulsons, the court instead ordered JBS to install a natural barrier between Lots 1 and 2 at its sole expense if it continued to store boat hoists on Lot 1.  Neither party appealed from this ruling.

Paulsons then asked Ventura to enforce its zoning ordinance concerning Lot 1. Ventura considered the matter during one or two city council meetings, but took no action. Plaintiffs again requested action and raised additional concerns about parking and a portable restroom that had been placed on Lot 1. The city attorney responded by assuring that the city of Ventura “has and will continue to enforce all of its Ordinances including the Zoning Ordinance in an even-handed and appropriate manner” but that the council, “by inaction, directed that no specific action be taken with respect to the purported nonconforming use….. One of the considerations on which the [city council] apparently relied consists of the Court’s findings of fact in its ruling.”
 
Paulsons then filed their petition for writ of mandamus, seeking to compel Ventura to enforce its zoning ordinance and require JBS to remove all boat hoists and stop other commercial activity on Lot 1. The district court framed the issues as (1) whether Ventura had a valid zoning ordinance regulating the properties, (2) if there is a valid zoning ordinance, whether the current use of Lot 1 violates the ordinance, and (3) if the answers to (1) and (2) are affirmative, whether mandamus is the appropriate remedy.  The court found Ventura had a valid zoning ordinance, and JBS had “substantially altered and changed the use of lot one and now uses it exclusively for commercial purposes.” The court found “as a matter of fact and law” that JBS was in violation of Ventura’s zoning code. The court concluded Ventura had a duty to enforce its zoning ordinance and its discretion extended “only to determine what action to take to correct the violation.” It also determined plaintiffs have “a right to enjoyment of their property free from adjacent illegal use and also have the right to have Ventura enforce its Zoning Code. They have no other remedy.” The city appealed to the Court of Appeals.

Ventura contended the court erred in making a determination that the use of Lot 1 by JBS is in violation of the zoning code. The city argues that question was not before the court in the mandamus action because “a writ of mandamus is not to establish a legal right, but to enforce one” already established.  The Court of Appeals found clear evidence that the lot is zoned residential and that JBS was using the lot for commercial purposes, and that the city’s own action in considering and granting the conditional use request acknowledged the current use did not fit within the allowed uses in a residential zone. After the district court annulled the conditional use permit, the commercial use of Lot 1 remained, but without any pretense of being a permissible or legal use of the lot under the zoning code.

The city next argued that mandamus is inappropriate because zoning enforcement is discretionary – that mandamus is limited to occasions “where an official or entity has a duty to act.” The city argued it has discretion in whether to take action, pointing to a section of its zoning code that provides the city “may institute appropriate action or proceedings to enjoin a violation” and Iowa Code 414.20, which provides the city, “in addition to other remedies, may institute any appropriate action or proceedings” to deal with violations of its zoning code. The Court of Appeals concluded that it need not determine whether the enforcement of the zoning code is ministerial, because mandamus is also proper if the city “acted arbitrarily or capriciously in denying the request” for enforcement of its zoning code, and the city council’s decision to take no action was an abuse of discretion and arbitrary and capricious. “It is well settled that [a writ of mandamus] may issue to correct an abuse of discretion, . . . or such an evasion of positive duty, as to amount to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law; and in such a case a mandamus would afford a remedy where there was no other adequate remedy provided by law.

JBS further contended mandamus was not appropriate because alternative remedies existed; specifically that the Paulsons have a remedy through the political process… they could seek to have officials sympathetic to their position elected who would exercise their discretion to bring an enforcement action to abate the use. The Court of Appeals dismissed this notion by stating that while the suggested remedies may be “competent to afford relief” eventually, JBS cannot reasonably contend they would be “equally convenient, beneficial and effectual. The commercial use of lot one is harming plaintiffs now. Ventura decided to take no action to enforce its zoning code. Mandamus is proper to compel the city to act.”

Iowa Court of Appeals, Mandamus , ,
Leave a Comment on Writ of mandamus appropriate to compel city to enforce its zoning ordinance

Department of Justice marks 10th anniversary of RLUIPA

Gary Taylor

September 22 marked the 10th anniversary of President Clinton’s signing of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The press release issued by the U.S. Department of Justice offered that:

The law was enacted in response to concerns that places of worship, particularly those of religious and ethnic minorities, were often discriminated against in zoning matters, and that individuals in prisons, mental health facilities, nursing homes and other institutions were frequently denied full religious freedom.

To mark the anniversary the DOJ issued a report detailing the efforts of the DOJ to enforce the law.  The report contains a number of interesting case examples.

The DOJ also released a Q and A policy statement on the law, what it is, and how it should be interpreted.  Good reading for planners unfamiliar with RLUIPA.

Federal legislation, RLUIPA
Leave a Comment on Department of Justice marks 10th anniversary of RLUIPA

Developer had protected property interest in commercial designation of development plan

by Melanie Thwing

Wedgewood v. Township of Liberty, OH
(Federal 6th Circuit Court of Appeals, June 28, 2010)

In 2003, Wedgewood Limited Partnership entered into agreements to build a Wal-Mart and a gas station in Subarea 3 of the Planned Unit Development (PUD)  of the Wedgewood Commerce Center (WCC) in Liberty Township, OH.  The Trustees had rezoned the land to PUD in 1991, and the WCC Development Plan (WCCDP) was approved in 1992.  Subarea 3 totaled 220, 857 square feet. The WCCDP specified that only areas 3, 8, and 9 (a total of 499,930 square feet) were to be used for commercial development, although Subareas 4, 5, 6 and 10 had obtained permits from 1992 to 2003 to develop approximately 390,611 of commercial space.

In October of 2003, Wedgewood filed an application to amend the WCCDP to increase the land in area 3 to 227,825 square feet for the Wal-Mart project.  The project met significant opposition from the community, and the amendment was denied.  After months of increasing opposition, the Trustees in 2004 issued a set of “Zoning Instructions” meant to clarify the current WCCDP. These Instructions indicated a “floating cap” of 500,000 square feet of commercial zoning covering the entire WCC, unless a “major” modification plan was submitted and approved.  The Trustees issued a public statement indicating that “analysis reveals that the commercial development completed to date, and substantially through the approval process, has consumed most of the square footage imposed by the development plan as an overall cap,” and that “we are instructing our zoning department to refrain from issuing any zoning certificates for additional commercial development” unless the proposal goes through the major modification process.

Later that year, Wedgewood again applied for a zoning certificate, but this time to build a smaller 220.597 square foot structure that would fit entirely within Subarea 3. It was not submitted as a major modification plan, and the Commission for Zoning cited this as the reason for denial. Wedgewood countered, filing a claim with the district court for the Southern District of Ohio under 42 U.S.C. § 1983. They argued that the Township’s adoption of the new Zoning Instructions violated Wedgewood’s procedural due process rights, and that the Zoning Instructions were void for vagueness. Summary judgment was granted in favor of Wedgewood, creating a permanent injunction preventing the Township from enforcing the new Zoning Instructions.  The Township immediately appealed to the Court of Appeals for the 6th Circuit.

§519.12 of the Revised Code of Ohio requires notice and a hearing before a zoning ordinance can be adopted or amended.  The Township argues this occurred in 1991 with the adoption of the PUD and the WCCDP, and that the document specifies a 500,000 square foot floating cap. Wedgewood counters that a floating cap had never entered discussion, and is not set forth anywhere in the WCCDP. The Court points out that if a floating cap was meant to exist, then it would be arbitrary to assign subareas 3,8, and 9 as commercial, and that it would ignore the strong correlation between the 500,000 square foot floating cap, and the 499,930 square foot total area for subareas 3, 8, and 9. The Court concludes that the Instructions, for these reasons, changed the WCCDP, which requires a hearing.

The Township then argues that Wedgewood had no protected property interest in the previous amendment procedures, while Wedgewood maintains it did. In Ohio a vested interest in property is given when an application for a building or zoning certificate is filed. Although Wedgewood did this, the Township counters that it was after the Instructions, meaning there was no interest prior. In Stile v. Copley Twp., the district court held a “protectable interest can arise under Ohio law when a government entity restricts a landowner’s ability to use his property.” Using this as a standard, the Court states that Wedgewood justifiably expected to use its land commercially up to 220,857 square feet, unless a proper amendment was passed.

The last issue is whether enacting the instruction without a hearing or providing prior notice to Wedgewood violated Wedgewood’s due process property interest. In Nasierowski Bros. Inv. Co. v. City of Sterling Heights the Court found that not providing notice has a severe and detrimental impact on how the owner can expect to use the land. This standard leads the Court to conclude that Wedgewood was singled out, that prior notice was mandatory, and that Wedgewood had the right to voice concerns.  The summary judgment for a permanent injunction was upheld.

Due Process, Federal courts, Procedural Issues, PUDs , , ,
Leave a Comment on Developer had protected property interest in commercial designation of development plan

Wyoming wind task force votes for limits on eminent domain

Gary Taylor

The Associated Press released the following article concerning the use of eminent domain in Wyoming for private companies building collector lines for wind turbines:

CASPER, Wyo. (AP) — Private companies that want to string small power lines from wind turbines to the main power grid wouldn’t be able to seize land from Wyoming landowners under a recommendation made by a task force Thursday.

The Wind Energy Task Force voted 5-4 to deny the power of eminent domain to private companies building so-called collector lines for wind projects in the state. Eminent domain is the forced acquisition of private property for public use and has been used to build railroads, pipelines and other projects.

At the same time, the panel recommends that regulated public utilities retain the power of eminent domain. Public utilities are subjected to more scrutiny from state Public Service Commission regulations and oversight.
Task force chairman Rep. Kermit Brown, R-Laramie, said the panel’s eminent domain recommendation seeks fairness for landowners whose land is needed only for small collector lines.

“All he gets is one lump sum payment for the fair market value of what little property they need and he never sees another dime,” Brown said.

Landowners with the wind turbines on their land pocket monthly checks from the wind producer, Brown said.
The task force’s recommendations go the Legislature, which would have to approve any change in state eminent domain law.

Wyoming imposed a moratorium on the use of eminent domain for collector lines that went into effect in March and will last through June 30, 2011. It’s meant to buy some time for Wyoming citizens and policymakers to examine the issue.

The Legislature last made changes to the state’s eminent domain law in 2007 mainly because of complaints from landowners who felt run over by booming oil and gas development. The process proved contentious.
Brown still refers to the 2007 debate as the “eminent domain wars.”  “They’re just tough, tough issues every time they come up,” he said.

Jill Morrison, an organizer with the Powder River Basin Resource Council, which advocates for private landowners, applauded the panel’s decision.

“If we can restrict eminent domain in any way I think our landowners support that because we believe these issues should be addressed through private negotiations and agreement, not through holding a gun to somebody’s head and threatening eminent domain, which basically forces the landowner to take whatever the condemner is offering because they have the greater power,” Morrison said.

Cheryl Riley, executive director of the Wyoming Power Producers Coalition, declined immediate comment on the task force’s action until she can study its recommendation.

Brown said he couldn’t say how the task force’s recommendations might affect the growing wind industry in Wyoming.
The dozens of wind farms that have been built or are being proposed in the state so far have hugged the main power transmission lines that cross the state. Building wind farms farther away from the grid will mean erecting many more of the collector lines.

Wyoming is one of the most reliably windy inland areas of the United States, and its wind energy potential has attracted wide interest in recent years.

Condemnation, Wind and solar energy , ,
Leave a Comment on Wyoming wind task force votes for limits on eminent domain

District court sides with Cedar Falls on remand of bad faith zoning claim

Gary Taylor

by Gary Taylor

Thanks to Marty Ryan with Cedar Falls, and Brian Schoon of Iowa Northland Regional Council of Governments for alerting me to the district court’s opinion.

Last July in the case of Geisler v. City of Cedar Falls (link to my post about the case, including the underlying facts, here) the  Iowa Supreme Court validated the use of moratoria as a planning tool, and also elaborated on Iowa’s vested rights doctrine; however, the court had an insufficient factual record to make a determination about whether the city acted in bad faith when it denied Giesler’s application to develop an eight-unit apartment complex on land formerly occupied by two single-family dwellings.  In the process it identified the relevant questions to determine bad faith zoning: (1) whether the city illegally denied the application, and (2) did so with an improper purpose. The Supreme Court laid out markers for determining both illegality and improper purpose.

  • The denial, without any legal justification, of an application that clearly meets all the requirements of the then-existing ordinance is illegal.
  • An improper purpose exists when a zoning authority adopts a new zoning regulation designed to frustrate a particular applicant’s plans for development; however, the fact that a zoning change is already being contemplated before the particular request is made tends to vitiate a claim of bad faith.

On September 2 the Black Hawk County District Court issued its decision on remand, siding with Cedar Falls on the bad faith issue.  As to the illegality of the denial, the court noted that the decision was consistent with the language set forth in the applicable overlay zoning district, because the proposed site plan was not consistent with the character of the neighborhood due to its architectural style and its scall in relation to adjoining properties. “There is nothing in the neighborhood that is similar in size or scope to that [apartment complex] proposed by Geisler.”

On the question of improper purpose the court noted that several witnesses testified that the city had been contemplating for sometime a review and modification of the overlay district provisions.  Based on this fact the court could not conclude that the city denied the site plan to improperly produce a delay to give the council more time to enact a new ordinance that would prohibit the requested use.  With the burden falling on Geisler to prove bad faith, his “claim must fail.”

Bad faith zoning, Iowa District Courts on remand , ,
Leave a Comment on District court sides with Cedar Falls on remand of bad faith zoning claim

Hermosa Beach (CA) total ban on tattoo parlors held to violate First Amendment

Gary Taylor

by Gary Taylor

Anderson v. City of Hermosa Beach (CA)
(Federal 9th Circuit Court of Appeals, September 9, 2010)

Anderson sought to establish a tattoo parlor in the City of Hermosa Beach (city), but the Hermosa Beach Municipal Code effectively bans tattoo parlors. Anderson sued the city alleging that the code provision is facially unconstitutional under the First and Fourteenth Amendments. The parties filed cross-motions for summary judgment, and the district court denied Anderson’s motion and granted the city’s motion. Anderson appealed the decision to the 9th Circuit Court of Appeals.

Because of the potential health concerns implicated by tattooing, the State of California requires “[e]very person engaged in the business of tattooing . . . [to] register . . . with the county health department of the county in which that business is conducted.”   The city lies within the County of Los Angeles (County). There are nearly 300 tattoo establishments in the County and over 850 tattooists. However, the County has only one inspector monitoring the parlors. Many tattoo parlors have never been inspected and are subject to no regulations other than the requirement to register with the County. Ostensibly because of the health concerns associated with tattooing and the lack of adequate County inspection the Hermosa Beach Municipal Code does not list tattoo parlors as a permitted use in any district. Indeed, on November 20, 2007, the City’s Planning Commission adopted a resolution against amending the Code to permit tattoo parlors.

The Court of Appeals began its analysis with a recognition that while pure speech is entitled to First Amendment protection unless it falls within one of the “categories of speech . . . fully outside the protection of the First Amendment,” (obscenity, conduct intending to express an idea is constitutionally protected only if it is “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,” which means that “[a]n intent to convey a particularized message [is] present, and . . . the likelihood [is] great that the message w[ill] be understood by those who view it.” Even where conduct expressive of an idea is protected by the First Amendment, “[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.”  Accordingly, the Court’s task was to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component.

The Court concluded that the city’s ban on tattoo parlors was facially unconstitutional because tattooing is purely expressive activity, rather than conduct expressive of an idea.  “Tattoos are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection.”  It noted that the principal difference between a tattoo and a pen-and-ink drawing that would unquestionably be considered purely expressive, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo.

The Court further found that the tattooing process (which is prevented from occurring because of the ban on tattoo parlors) is similarly purely expressive activity.   “Neither the Supreme Court nor our court has ever drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded. Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation.

Finally, the Court concluded that the business of tattooing qualifies as purely expressive activity rather than conduct with an expressive component, and is therefore entitled to full constitutional protection.  It cited cases that established that “the degree of First Amendment protection is not diminished merely because the protected expression is sold rather than given away.”

Having concluded that the tattoo, the tattooing process, and the business of tattooing are purely expressive activities, the Court then considered whether the city’s total ban on tattoo parlors was a reasonable time, place and manner restriction.  The Court noted particular concern with laws that foreclose an entire medium of expression, because “by eliminating a common means of speaking, such measures can suppress too much speech.” The Court concluded that the total ban was substantially broader than necessary to achieve the city’s significant health and safety interests, and it entirely foreclosed a unique and important method of expression.

Federal courts, First Amendment claims , , ,
Leave a Comment on Hermosa Beach (CA) total ban on tattoo parlors held to violate First Amendment

Decision in Section 8 housing assistance hearing insufficient to terminate benefits

Gary Taylor

by Melanie Thwing

Daniels v. City of Des Moines Municipal Housing Agency
(Iowa Court of Appeals, September 9, 2010)

Felicia Daniels is a resident of Des Moines, IA who was receiving benefits from the Section 8 Housing Assistance Program. The purpose of this program is to help low-income families obtain, “a decent place to live.” This is a program run by the U.S. Department of Housing and Urban Development, which then contracts out to Public Housing Agencies (PHA) at the state and local levels.

In February of 2009 the Des Moines Municipal Housing Agency (DMMHA) notified Daniels that her rental subsidy would be terminated because of a second failed inspection resulting in a violation of her lease.  The items listed as causing the second failed inspection included a battery missing from a smoke detector, writing on the walls, and a missing light fixture. Daniels filed a written request for a hearing, and an unrecorded hearing before a hearings officer occurred in March. In April, a written decision from the hearings officer in support of termination was filed, and cited to evidence of a failed first and second inspection.

In May of 2009 Daniels filed for a writ of certiorari to negate her termination from the program claiming a due process violation, and inadequate evidence. In December the district court affirmed the hearings officer’s decision. Daniels then appealed to the Iowa Court of Appeals on the grounds that the unrecorded hearing did not follow “constitutional or regulatory requirements.”

The Court first lookedat when a PHA can terminate an individual or family from the program. The hearings officer wrote in his decision that Daniels “violated obligation of the family” by causing a breach of Housing Quality Standards (HQS).  The law states that the family “is responsible for a breach of  the HQS that is caused”  by the damages to the housing unit.  The Court of Appeals pointed out that the hearings officer found that the family caused damages, but failed to address the other half of the equation: whether the damages resulted in a breach of the HQS.  The Court thus found this to be an inadequate claim upon which to terminate the Section 8 subsidy.

Daniels also argued that a violation of her due process rights took place. She pointed to judicial precedence that requires the hearings officer, in his written decision on termination, to include factual determinations relating to the individual circumstances of the family and reflect that he is aware of his discretionary authority to take all relevant circumstances into account.  During the hearing, Daniels spoke to the fact that the landlord refused to fix anything, that she had repaired everything that passed the second inspection, and that the failed items were the landlord’s responsibility. The written document from the hearing does state the “Position of Participant,” but, the Court of Appeals pointed out, there is no way to know from the written decision if these circumstances were taken into account by the hearings officer. The Court comes to the conclusion that because there is neither rationale listed by the hearings officer, nor any indication that he was aware he was authorized to exercise discretionary authority, the record as a whole was insufficient to terminate the Section 8 funding. The decision is reversed.

Housing, Iowa Court of Appeals ,
Leave a Comment on Decision in Section 8 housing assistance hearing insufficient to terminate benefits

Subscribe

Archives

Categories

Tags

Admin Menu