Year: 2011

MAPA receives $2 million Sustainable Communities Regional Planning grant

Gary Taylor

The recipients of the last HUD Sustainable Communities grants were announced last Monday.  These are the last awards given through this program, as funding for the Partnership for Sustainable Communities – the collaboration between HUD, DOT and the EPA – was not included in the FY2012 transportation budget in a sufficient amount to make another round of grant awards.

The good news in this region is that Omaha-Council Bluffs Metropolitan Area Planning Agency (MAPA) will be awarded $2,045,000 to develop a Regional Plan for Sustainable Development. According to MAPA’s submittal, “the plan will include the development of several scenarios for future growth that represent different ways of achieving equilibrium between the goals of equity, environmental sustainability, and economic growth in the future development of the Omaha-Council Bluffs metropolitan region. The scenarios will be developed through an extensive community engagement process at the regional, local, and neighborhood scales.”

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Landowner could not limit access of easement holder to one specific route

Gary Taylor

by Victoria Heldt

Enbridge Energy, LP v. Donovan Dyrdal, et al.
(Minnesota Court of Appeals, October 24, 2011)

The Dyrdals own agricultural property that is subject to easements held by Enbridge Energy.  The easements were granted in 2009 by the power of eminent domain and allowed Enbridge “rights of ingress and egress as are reasonably necessary or convenient in the exercise of such easement rights.”  Enbridge, a public-service corporation, installed and maintained pipelines in the easement.  Soon after completing the pipeline installation, Enbridge discovered problems at two locations, so the crew began working to correct them in January of 2010.  They used a field road on the Dyrdal property to access the two spots.  In response, the Dyrdals placed large hay bales across the field road and in the ditch between the problem sites, preventing Enbridge from accessing their work site.  Enbridge claimed this delay cost them an additional $28,697.80 in project costs.

Enbridge sought a declaratory judgment and injunctive relief in district court alleging a breach of easements and a violation of the eminent-domain order, among other things.  They also moved for a temporary injunctive relief to prevent the incident from reoccurring during litigation, which the court granted.  The Dyrdals countered with a claim of immunity under Minnesota’s statute preventing strategic litigation against public participation (SLAPP).  The statute’s goal is to prevent parties from using the threat of costly litigation to silence those who want to debate public issues.  The district court eventually granted Enbridge’s motion for summary judgment on the issue of declaratory relief, finding Enbridge did indeed have the right to access the property to maintain the pipelines.

The Dyrdals appealed, their first claim being that the district court erred when it denied their request for partial summary judgment on the grounds of Minnesota’s anti-SLAPP statutes.  The anti-SLAPP statute can be used to dismiss claims that relate to public participation.  The Court noted that public participation is defined as “speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.”  The Dyrdals argued that, since Enbridge gained access to the property by means of an eminent-domain procedure, it was acting as a government agent in its actions.  Consequently, they claimed that the anti-SLAPP statue was applicable.  The Court disagreed.  They noted that the power of eminent domain does not make the entity a government agent once the power has been exercised.  In addition, they found that Enbridge was exercising its rights as an easement owner, not a government agent, in accessing the property.  Further, the Dyrdals previously claimed that they placed the hay bales on the road in order to load them and not to interfere with Enbridge’s work.  If that is true, then their conduct was not to “procure favorable actions from Enbridge,” but for their own private farming operations.  As a final note, the Court noted that it had recently found that a preexisting legal relationship could limit a party’s ability to file an anti-SLAPP claim.

The Dyrdals also alleged that the district court abused its discretion when it granted temporary injunctive relief.  In evaluating whether a temporary injunction is appropriate, the Court considers five factors:  1) the nature and background of the relationship between the parties; 2) the balance of harm to the parties; 3) the likelihood that the party seeking the injunction will prevail on the merits of the action; 4) wither there are public-policy considerations; and 5) whether there are any administrative burdens involved in judicial supervision and enforcement of the temporary injunction.  After analysis, the Court found that the first three factors favored Enbridge, while the last two were neutral.

The Dyrdals focused mainly on the third factor.  The Court had reasoned that the language in the eminent-domain ruling showed Enbridge had a clear right to access the property and that constituted a showing that they would most likely win on the merits of the case.  The Dyrdals claimed that the real-estate doctrine of practical location limited Enbridge’s right of entry to one specific route.  The boundary by practical location can be established by acquiescence if one party chooses a specific route and the other agrees accepts it over a period of time.  The Dyrdals contend that an alternative route (and not the field road) that was previously used had been established by acquiescence.  The Court noted the plurality in the phrase “rights of ingress or egress” that appeared in the eminent-domain ruling.  It found that the ruling did not prescribe one specific route of access, so the Dyrdal’s claim was insufficient to disprove the likelihood of Enbridge’s success in a claim.  Additionally, the practical location by acquiescence doctrine requires acquiescence over a period of time.  In this case, the easement was relatively new and substantial time had not passed in which to establish a route by acquiescence.  The Court affirmed the district court’s decision regarding the temporary injunction.

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African American residents of subdivision fail to prove they are similarly situated to unprotected class

Gary Taylor

by Victoria Heldt

Bishop Harvey, Jr., et al., v. Town of Merrillville
(Federal 7th Circuit Court of Appeals, July 11, 2011)

The residents of Innsbrook, a subdivision in Merrillville, Indiana had several complaints regarding a retention pond near their property as a source of mosquitoes, algae, and flooding.  They feared that a proposed expansion of the subdivision would only enhance the problem, so they attempted to voice their opinions to the Merrillville town council.  The homeowners, who were predominantly African-American, felt they were ignored by the council and claimed to have been victim to racial epithets from a council member (who was also African-American.)

They brought forth a claim under the Fourteenth Amendment, claiming that the council violated their equal protection rights when it was more responsive to another group of people filing similar complaints.  They listed the Town of Merrillville, 16 Merrillville employees (Town Defendants), and the Town’s engineer (Warmelink) in their filing.  They also made a total of 31 state claims against the defendants.  Three years later, the residents moved for summary judgment on twelve issues, one of them being the Fourteenth Amendment claim.  The Town responded with a similar request for summary judgment.  Warmelink made a separate request for summary judgment.  The district court eventually ruled in favor of the Town, finding that the residents “failed to identify a similarly situated class that the Town and Town Defendants treated more favorably.”  The court then remanded the case to the state court to rule on the remaining state claims.  Soon after, Warmelink sought a clarification in the ruling, since he was not listed within the opinion.  The court released an order (December 3 order) that granted summary judgment to Warmelink on the same grounds as the ruling for the Town.

The residents appealed, but failed to mention the December 3 order in their claim.  Subsequently, Warmelink contended that the Court did not have jurisdiction over him because the residents failed to “designate the judgment, order, or part thereof being appealed.”  The Court disagreed.  It noted that incomplete attempts to follow the rule will not be contested as long as the appellee is not harmed.  Since Warmelink gave no evidence that he was harmed or misled by the residents’ appeal (in which is he was specifically named), the Court denied Warmelink’s argument.

The residents’ primary substantive argument rested on the belief that they raised a “genuine issue of material fact” that they were treated differently than a group of Caucasian homeowners making similar complaints regarding a subdivision.  The Court noted that, in order to prevail with an equal protection claim, the party must show that:  1) they are a member of a protected class; 2) they were similarly situated to members of an unprotected class in all relevant respects; and 3) they were treated differently from members of the unprotected class.  The Court admitted that the residents were members of a protected class (all were non-white individuals.)  Yet, the residents failed to establish that they were similarly situated to the members of an unprotected class.

The Insbrook residents attempted to liken themselves to residents of Southmoor (another subdivision) where construction was proposed and opposed.  The Court first noted that the Insbrook residents failed to provide any concrete evidence that the Southmoor residents were white, they only made conclusory allegations.  In addition, the Insbrook expansion was to consist of only single-family homes and was to be zoned R-2, which was the current zoning classification of the development.  On the other hand, the Southmoor residents were opposing a plan that was to consist of duplexes zoned R2 and R3.  The developments being contested were not of the same type.  Additionally, the Merrillville town council granted the Insbrook residents a private meeting at which to object the expansion while it did not do the same for the Southmoor residents.  So it would appear that the Insbrook residents were treated more favorably than the group to which they were comparing themselves.  As a last note, the Court mentioned that the Southmoor subdivision does not even contain a retention pond, which was the catalyst of this case.  The Court found that the residents’ case did not stand since they failed to prove that they were similarly situated to an unprotected class.

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Use of roadway by mobile home park residents went beyond scope of easement

Gary Taylor

by Gary Taylor

113th Avenue Road Fund Assn. v. I & R Properties, Inc.
(Iowa Court of Appeals, November 9, 2011)

Plaintiff 113th Avenue Road Fund Association (the association) is a voluntary, unincorporated group of lot owners in a subdivision called BJ Mahoney‟s Second Subdivision in Scott County. Plaintiff Sandra K. Moore is the former association president and owns Lot 1 in the subdivision.The defendant, I & R Properties, Inc. (I & R), owns lots 13, 14, and 15 in the subdivision and operates a trailer park—the Lake Canyada Mobile Home Park—“partially on, and adjacent to, the subdivision.” (although I & R denied owning the lots and affirmatively stated that Lake Canyada L.L.C. is the record title holder of the property. The district court observed, “the legal relationship between I & R Properties and Lake Canyada is not clear. . . . [but] I & R Properties is at least the resident manager and authorized agent of Lake Canyada L.L.C.”).

I & R and Lake Canyada use residential buildings on lots 13 and 14, located on 113th Avenue, as an office for the mobile home park and as a residence for the park‟s manager. Several mobile home residents use 113th Avenue as their ingress and egress to their mobile homes. In addition, I & R cut a roadway through lot 15, which connects with 113th Avenue. The crude roadway provides the occupants of approximately 235 trailer lots with a shortcut to 113th Avenue so that they may access Lake Canyada’s business office.  The sixty-six-foot-wide roadway was first recorded in a 1948 plat of the B.J. Mahoney‟s Second Subdivision, and the Mahoneys recorded an affidavit in 1964 reaffirming their dedication of the roadway for the use of “all of the owners of lots” in the 1948 plat. On June 30, 1986, the owners of the land adjoining the road signed an agreement for continued maintenance and access to and from their properties. That agreement stated that 113th Avenue is designated “as a private road for residential use for all owners and residents of the Lots in said Auditor’s Plat of B.J. Mahoney’s Subdivision and B.J. Mahoney’s 2nd Subdivision. The owners of the following adjoining lots to the described road state that each party has the right to use the described road for residential use to Ingress and Regress.” In 1986, Dean Harding managed Hawkeye Real Estate Investments and signed the agreement for Lots 13, 14, and 15.  Over the years, several disagreements arose between trailer park management and subdivision landowners concerning the meaning of the agreement, and the use and maintenance of 113th Avenue.  The latest disagreement resulted in this lawsuit over the interpretation of the agreement.  The district court ruled that I & R could not use lots 13, 14, and 15 for commercial purposes, and that the association could erect blockades to prevent trailer park residents from using 113th Avenue.  I & R appealed.

The parties agreed that the district court went beyond the scope of pleadings in restricting the use of lots 13, 14, and 15.  However, they still disagreed about the scope of the 1986 agreement concerning use of the road.  I & R recognizes the 1986 agreement referenced “residential use” of the road, but argued that phrase “cannot fairly be construed to ban traffic related to the operation of the park as a place where persons reside. The Court of Appeals disagreed.  The testimony about 113th Avenue reveals that the lots adjoining the private road were held and used by about twenty people for their own residences in 1986, as opposed to any commercial or business endeavors. The notion that more than two-hundred occupants of mobile homes may use I & R’s easement to transact business at the manager’s office and to gain a quicker connection to a public road was not contemplated by the lot owners who signed the 1986 agreement for access and maintenance of the private road.  The agreement did not contemplate that I & R could open the private road to hundreds of customers who rented trailer lots from the company. That commercial use of the road by non-residents has created an unintended burden on common holders of the easement.  The agreement’s reference to proportional responsibility for the maintenance costs also supports the conclusion that the signatories did not anticipate opening 113th Avenue to non-residents who would benefit from their use of the private road without contributing to its upkeep.

The Court of Appeals found that I & R violated the 1986 agreement by allowing the different type of use of 113th Avenue by their tenants. It affirmed the district court’s declaration that I & R’s roadway on Lot 15 should be closed to through traffic to 113th Avenue, the north end of 113th Avenue should be closed to access from the mobile home park, and I & R should be prohibited from interfering with the association’s enforcement of the agreement.

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GenXers aren’t buying what Boomers are selling (McMansions)

Gary Taylor

An excellent article on the McMansion housing market in New Jersey – equally applicable elsewhere – can be found here.  In short: demographically more boomer sellers than GenX buyers, compounded by the fact many GenXers really don’t want McMansions, and those that do can’t afford to move.  “We’re just at the beginning of this,” says a real estate consultant.

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Demolition is abatement of a nuisance, not a taking requiring condemnation

Gary Taylor 1 Comment

by Victoria Heldt

Hendrix Roosevelt v. City of Detroit
(Michigan Court of Appeals, October 13, 2011)

This case deals with the demolition of a building in Detroit, Michigan.  In 2003, the City sent a dangerous building violation notice to the owners of the building after they discovered it was dilapidated, only had a half roof, and was open to trespass.   After a hearing was held, a demolition notice was sent.  At the time, Roosevelt was not on record as an owner of the building, so he didn’t receive these notices.  In 2005, Roosevelt filed a demolition deferral application and listed the building’s address as the place to send him notice.  The City granted the deferral on the condition that the building not is kept open to public trespass.  If the condition was not met, the building would be demolished without further notice.  A notice was sent to the building addressed to Roosevelt, but it was returned as Roosevelt had moved from the building.  In 2006 the City inspected the building and found it was in violation of the deferral agreement.

Roosevelt filed another deferral request in 2007 and provided 258 Riverside Drive as an address at which to reach him.  The City denied the request and sent notice both to the building’s address and to the alternative address Roosevelt provided.  Both notices were returned in the mail.  In September of 2007 the building was demolished.  Roosevelt filed a claim arguing that the demolition of the building violated the Michigan constitution, violated federal due process, and was the result of gross negligence by two City employees.  The court dismissed the federal claim and remanded the case to the circuit court to resolve the remaining claims.  On both of these claims the circuit court granted summary judgment for the City.  In 2010 the City petitioned to reopen the case in order to present a counterclaim for demolition costs.  The petition was granted, and when Roosevelt failed to oppose the demolition costs, the court awarded demolition costs to the City.  All claims made their way to the Michigan Court of Appeals.

As for the state constitution claim, the Court of Appeals laid out three main reasons why the claim was properly dismissed by the circuit court.  First, monetary damages are reserved for plaintiffs with no other avenue of relief.  Roosevelt’s first line of relief would have been via a federal due process claim, which was alleged and was denied.   The Court also noted that the City’s actions did not constitute a “taking.”  A “taking” occurs when the government confiscates property for public use.  In these instances, the government must go through the proper condemnation process.  An exception exists, however, if the property is causing a public nuisance.  Nobody has the right to use their property as a nuisance; therefore it is not considered a “taking” if the government uses its power to stop a public nuisance.  Roosevelt’s building was considered a public nuisance since it “imperiled the health, safety, and welfare” of the neighborhood.  Thus, the government did not commit a “taking” when it demolished the building.  The Court’s final point regarding this claim was that Roosevelt cannot claim a due process violation if he actually received notice.  The fact that he filed petitions for demolition deferral was evidence that he knew of the demolition plans.  Consequently, there was no due process violation.

In regards to the gross negligence claim against the municipality’s employees, the Court noted that governmental employees are protected from lawsuits if they were “acting within the scope of their authority, were engaged in the exercise or discharge of a governmental function, and their conduct did not amount to gross negligence that is the proximate cause of the injury or damage.”  In this case, the Court focused on the phrase “proximate cause.”  The Court concluded that this phrase is to be interpreted as the “most immediate and direct” cause of the action (in this case, the demolition of the building) and that it refers to one cause.  In this case another cause existed in correspondence with the demolition, namely Roosevelt’s failure to uphold the conditions of the deferral.  As a result of those factors, the employee’s actions are not deemed gross negligence.

Finally, Roosevelt challenged the circuit court’s action in assessing the demolition costs to him since state statute specifies that a judgment lien, and not a personal judgment, should be granted in demolition costs.  The Court agreed with Roosevelt and found that the trial court abused its discretion in awarding the city a personal judgment against Roosevelt.  After affirming the district court’s decisions regarding the constitutional claim and the gross negligence claim, it remanded the case for the granting of a judgment lien.

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

Gary Taylor

by Gary Taylor

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

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

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

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Maps provided to landowner sufficiently accurate representation of land ultimately condemned

Gary Taylor

By Victoria Heldt

Krupicka v. Village of Dorchester
(Nebraska Court of Appeals, October 11, 2011)

Krupicka farms a 160-acre plot of land outside the Village of Dorchester.  The Village of Dorchester owns a wastewater treatment plant on the property adjacent to the northeast portion of Krupicka’s land.  In October 2008, the Village notified Krupicka that its wastewater treatment plant must undergo alterations and expansions in order to meet federal and state standards.  The letter specified that the expansion (new lagoons) would need to take place on a portion of Krupicka’s land and that the Village was prepared to negotiate a purchase agreement.  Krupicka met with the Village’s attorney (Gropp) regarding the acquisition in October 2008 and then in December of 2008 Krupicka received an official offer letter.  The letter informed Krupicka that the Village desired to purchase 40 acres of Krupicka’s land at $2,200 per acre.  The initial plan consisted of four new lagoons placed on a portion of land north of a creek that ran through Krupicka’s property.  Krupicka hired representation (Hemmerling) and requested a meeting with Gropp in order to discuss alternative plans.

In January of 2009 Krupicka met with Gropp and the project manager, who explained that the project required a 35-40 acre plot of land and needed to be finalized by September of that year.  Krupicka expressed concerns about his ability to use his pivot irrigation system on the land near the lagoons.  Another meeting was held in February of 2009 at which Krupicka suggested the lagoon site be moved to the south side of the creek running through his property.  After the Village’s superintendent of sewer, water, and electrical completed research regarding the alternative location of the lagoons, Krupicka received a letter stating it would not be feasible.  The letter, received in March 2009, included images of the acceptable future location of the lagoon and contained the following warning:  “Dimensions are approximate & will vary.  Area shown = 35.0 acres.”  Sometime shortly afterwards, Krupicka received a similar letter in which the area shown was equal to 36.7 acres.

Later that month Hemmerling, on behalf of Krupicka, sent a letter to Gropp rejecting the $2200 per acre offer and countered with a $10,000 per acre offer.  Gropp rejected this offer and countered with a $3,650 per acre offer “for the land in the northeast quarter of…Krupicka’s land.”  In August, Krupicka attended a Board meeting at which he requested a postponement of the decision regarding the lagoons.  The Board said it was not possible due to the September 1 deadline and reiterated its offer of $3,650 per acre.  Krupicka walked out of the meeting.  At the same meeting the Board authorized the condemnation of approximately 37 acres of Krupicka’s land on which to build three lagoons.  A witness at the meeting could not recall whether this took place before or after Krupicka left.  Gropp testified that he provided Krupicka with a copy of the final plan, but Krupicka claimed he never received it.  Gropp sent a “Petition for Condemnation and for Appointment of Appraisers” to Hemmerling.  Attached to this letter as a reference was an image of the plan included in the April 2009 letter to Krupicka and not the most recent plan.  Gropp said this was because he had sent his only copy of the most recent plan to Krupicka, and he provided one later that month to the appraisers.  The appraisers valued Krupicka’s damages at $160,000 (or $4,311 per acre.)  Krupicka later consented to a temporary construction easement for consideration of $8,500.

In district court, Krupicka alleged that the $160,000 was not adequate and that the condemnation of his property was invalid since there were no good faith negotiations prior to it.  The court found that the Village did indeed enter into good faith negotiations before condemning the property.  Krupicka appealed.  After clarifying that it does have jurisdiction to decide the case, the Court of Appeals addressed Krupicka’s claim.  At the heart of the claim, Krupicka argued that the good faith negotiation requirement was not met because he never received a legal description of the land to be condemned and therefore the condemnation was invalid.  In order to satisfy the statutory requirement of good faith negotiation, “there must be a good faith attempt to agree, consisting of an offer made in good faith and a reasonable effort to induce the owner to accept it.”  He did not want the land returned to him (as the treatment facility construction had already begun) but instead wanted more compensation.

Krupicka relied on Prairie View Tel. Co. v. County of Cherry as precedent.  In that case, the County of Cherry sought to condemn property in order to build a county road.  The only form of negotiation was a letter addressed to the landowners.  The letter informed them that since they failed to appear for negotiations as formerly requested and since the County was unable to find them at their home on one occasion, the County was offering $3,000 as consideration.  The Court held that an offer in good faith was not made since the county never discussed how much land it was going to take.

The Court noted that the facts in Prairie differed greatly from the facts in this case.  The Village indicated “with reasonable clarity” how much land was to be taken.  In addition, it sought Krupicka’s input regarding the location of the lagoons in the initial planning stages.  Although it was unclear as to whether Krupicka received the final draft of the plan for the lagoon, the other three drawings he did receive showed a portion of land that was in “essentially the same location as the portion of Krupicka’s land that was ultimately condemned.”  For these reasons, the Court affirmed the district court’s decision.

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Realtors Association has standing to challenge rental licensing ordinance

Gary Taylor

by Gary Taylor

St. Louis Association of Realtors v. City of Ferguson
(Missouri Supreme Court, October 25, 2011)

In 2006, the City of Ferguson enacted an ordinance that created a regulatory fee and licensing system for owners of residential property within Ferguson who lease or rent their property to others.  To qualify for a rental license, property owners must undertake building inspections, file affidavits stating whether any adult tenants are registered as sex offenders, retain a property manager residing within 25 miles of the rental property and pay licensing fees. The ordinance makes it unlawful for property owners to rent or lease their property without a license.

The St. Louis Association of Realtors (Association) is a trade association with approximately 9,000 members in the St. Louis metropolitan area. The association challenged the validity of the ordinance on both constitutional and statutory grounds. Its petition asserted that it has associational standing on behalf of its members because some of those members are affected by the ordinance directly, because it has an interest in protecting private property rights of the type affected by the ordinance, and because the relief it requested is a declaration that the ordinance is invalid rather than damages and so, its suit does not require joinder of individual members.  The trial court dismissed the association’s petition, determining that it lacked standing to bring suit.  The association appealed.

According to the Missouri Supreme Court “Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote.  A legally protectable interest exists only if the plaintiff is affected directly and adversely by the challenged action or if the plaintiff’s interest is conferred statutorily….An association that itself has not suffered a direct injury from a challenged activity nevertheless may assert ‘associational standing’ to protect the interests of its members if certain requirements are met. The association must demonstrate that (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

The Missouri Supreme Court determined that the association had associational standing.  The association satisfied the first prong of the test because some of its members are property owners in Ferguson and, so, would have standing in their own right to challenge Ferguson’s ordinance. Specifically, three realtor-members testified that they own rental property within Ferguson and, as such, have felt a direct impact from the various requirements imposed by the ordinance.  The Court disagreed with the city’s assertion that a majority of an association’s members must be able to prove standing in their own right.

In assessing the association’s satisfaction of the second prong the Court observed that the relevant question is whether the basis on which the individual association members were found to have standing under the first prong also is germane to the association’s purpose.  “Mere pertinence between litigation subject and organizational purpose is sufficient. Requiring otherwise would undermine the primary rationale of associational standing, which is that organizations are often more effective at vindicating their members’ shared interests than would be any individual member.” The association supported its claim that it has an organizational interest in protecting property rights by introducing its by-laws, and mission statement, which both contain statements about the association’s stated purpose to protect members’ and homeowners’ property interests. The association also presented evidence that the association regularly engages in lobbying activities and fundraising to advance the interests of its members, including their interest in protecting real property rights. Further, two association representatives testified that the organization has initiated or participated in litigation challenging ordinances or defending its members cited for violating ordinances deemed objectionable to the association’s mission of protecting property rights.

Finally, the Court concluded that the third prong was met because the association merely sought prospective relief via a declaratory judgment that Ferguson’s ordinance was invalid. It was not pressing for damages or other relief that would require joinder of individual association members. “Where an association seeks only a prospective remedy, it is presumed that the relief to be gained from the litigation will inure to the benefit of those members of the association actually injured.”

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Leinberger calls out standard development models

Gary Taylor

Considering that Christopher Leinberger was the keynote speaker at our Upper Midwest APA conference last week, I thought  the readers of this blog that attended the conference (both of you!?) would find interesting this recent article from The Atlantic Cities.

Leinberger has identified the 19 building types that he contends caused the real estate market swoon we are now in.  In the article he calls out the “Grocery Anchored Neighborhood Center”:

This creation is generally about 12 to 15 acres in size on a plot of land that’s 80 percent covered in asphalt. It’s located on the going-home side of a major four-to-eight lane arterial road, where it catches people when they’re most likely to be thinking about what to buy for dinner. It has a major, 50,000 to 70,000 square-foot supermarket on one end and a drug store with drive-through on the other, with national and regional chain stores, maybe a Hallmark and a Starbucks in between. The parking lot contains four or five spaces per thousand square-feet of retail. There is, in theory, a sidewalk, although no one is expected to use it. Every shop is designed to be seen by potential customers passing by at 45 mph. And – with the exception of a few last-minute regionally specific touches for art-deco paint schemes or Mediterranean roof tiles – this L-shaped shopping center looks the same whether you’re pulling into it from Denver or Orlando.

His message is the same as it was during his talk; that we have overbuilt several standard development types that the real estate market is now burdened with.  The message of hope is that the recession now (hopefully) gives us a chance to reconsider our development practices and return to less auto-dependent models.

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