Year: 2012

US Supreme Court says no bright-line exception to the Takings Clause for temporary flooding caused by Corps action

Gary Taylor

by Gary Taylor

Arkansas Game and Fish Commission v. United States
(U.S. Supreme Court, December 4, 2012)

The Arkansas Game and Fish Commission owns a wildlife management area along the Black River that that is forested with multiple hardwood oak species and serves as a venue for recreation and hunting. In 1948, the U. S. Army Corps of Engineers constructed the Clearwater Dam upstream from the management area and adopted the Water Control Manual, which sets seasonally varying rates for the release of water from the dam. Periodically from 1993 until 2000, the Corps, at the request of farmers, authorized deviations from the Manual that extended flooding into the management area’s peak timber growing season. The Commission objected to the deviations on the ground that they adversely impacted the management area, and opposed the Corps’ proposal to make the temporary deviations part of the manual’s permanent water-release plan. After evaluating the effect of the deviations, the Corps abandoned the proposed Manual revision and ceased its temporary deviations.

The Commission sued the United States, alleging that the temporary deviations constituted a taking of property that entitled the Commission to compensation. The Commission maintained that the deviations caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber in the Area and a substantial change in the character of the terrain, necessitating costly reclamation measures. The Court of Federal Claims’ entered a $5.8 million judgment in favor of the Commission; however, this judgment was reversed by the Court of Appeals. The Court of Appeals acknowledged that temporary government action may give rise to a takings claim if permanent action of the same character would constitute a taking. It held, however, that government-induced flooding can give rise to a taking claim only if the flooding is “permanent or inevitably recurring.”

The U.S. Supreme Court disagreed.  Citing back to Penn Central the Court noted that takings claims most frequently turn on situation-specific factual inquiries, as opposed to bright-line legal tests. The Court cited its own cases that affirmed that government-induced flooding, and seasonally recurring flooding, can constitute takings. The Court has also ruled that takings temporary in duration can be compensable. None of the Court’s previous decisions authorizes a blanket temporary-flooding exception to the Court’s Takings Clause jurisprudence.  The Court interpreted The Corp’s primary argument as being that reversing the Court of Appeal’s decision risks disrupting public works dedicated to flood control. While the public interests in this case are important, the Court did not consider them to be categorically different from the interests at stake in the many other Takings Clause cases in which the Court has rejected similar arguments.  The Court declined to address the Corps alternative argument that damage to property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore is not compensable under the Takings Clause because it was first tendered at oral argument and not aired in the courts below.

Because the Federal Circuit rested its decision entirely on the temporary duration of the flooding it did not address other factors relevant to the takings inquiry, such as the degree to which the invasion is intended or is the foreseeable result of authorized government action. the character of the land at issue, the owner’s “reasonable investment-backed expectations” regarding the land’s use, and the severity of the interference. Thus, remand to address these issues was warranted.

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Business growth is a self-created hardship for variance purposes

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by Kaitlin Heinen

Larry Hacker et al. v. Sedgwick County, Kansas Board of Zoning Appeals
(Kansas Court of Appeals, September 14, 2012)

Norman and Leatha Hein have operated a lawn care business from their rural home for 30 years. Their property is zoned as RR Rural Residential. In 2010, the Heins filed a petition with the Sedgwick County, Kansas Board of Zoning Appeals for three variances: “(1) to allow up to 20 employees with no more than 15 on site in excess of 1 hour per day; (2) to allow the use for business purposes of existing outbuildings with a combined floor area exceeding 3,000 square feet; and (3) to allow outdoor storage closer to the street than the buildings used for the business and closer than 200 feet from property lines.” The Heins alleged that these variances were necessary because they had acquired additional customers. Also, more equipment was stored at their property, and the new variances would allow the employees to perform necessary equipment maintenance on the property, especially during inclimate weather.

In October of 2010, the Board held a meeting at which the Heins’ petition was considered. The Board looked at the five criteria under K.S.A 12-759(e)(1) that must be met before the Board can grant a variance as well as the Board staff’s report, which recommended that only two of the three variance be granted under certain conditions. At this meeting, Norman Hein explained that the first variance was necessary to allow six drivers to transport lawn care equipment instead of the four needed in the past. It would also allow employees to gather at the property and share rides with each other to the job sites and account for the need to perform equipment maintenance on the property.

Several neighbors and customers spoke in support of the Heins’ petition at the meeting.  The exceptions were Richard Gronniger and Terry and Larry Hacker.  Gronniger owned property south of the Heins’, and Hacker operated Kansas Paving (a sand pit) on Gronniger’s property. Kansas Paving was paying for maintenance of the road (~$15,000 per year) that separates Gronniger’s and the Heins’ properties in accordance with the conditional use permit given to operate the sand pit. Gronniger and Hacker argued that the Heins should also be required to apply for a conditional use permit and contribute to road maintenance costs.

The Board initially found that all five criteria under K.S.A. 12-759(e)(1) had been met for each variance and granted all three for the Heins.  Larry Hacker, Terry Hacker, Richard Gronniger, and Kansas Paving filed a petition in the district court challenging the reasonableness of the Board’s decision. After the district court twice reversed the Board’s decision, the Board appealed to the Kansas Court of Appeals, arguing that the plaintiffs lacked standing to appeal the Board’s decision, and so the district court, by extension, lacked jurisdiction to rule on the matter. The Board also argued that there was substantial evidence to support its finding of a hardship that was not self-created by the Heins in accordance with 12-759(e)(1)(C).

The Board argued that the plaintiffs’ only way to appeal its decision was under K.S.A. 12-759(f), which allows appeals from any person “dissatisfied with” a board of zoning appeal’s decision. The Board urged that the district court interpret the phrase “dissatisfied with” so as to give standing only to the original parties of a board’s proceedings, which is a smaller class of persons than those who may be “aggrieved by” a board’s decision under K.S.A. 12-760. The Board also argued that the plaintiffs did not have a particularized interest affected by its decision. To the contrary, the plaintiffs argued that they can appeal under both K.S.A. 12-759(f) and K.S.A. 12-760. The plaintiffs alleged that the Board’s above interpretation would prevent neighbors from appealing a board’s decisions that adversely affect their interests. The plaintiffs also held that they have a particularized interest in the increased traffic on and the increased maintenance costs of the road in question.

The Kansas Court of Appeals addressed the two relevant statutes at issue in this case: K.S.A. 12-759(f) and K.S.A. 12-760. The court held that a specific statute will control over a general statute. Since K.S.A. 12-759(f) applies only to decisions made by a board of zoning appeals, it is more specific than K.S.A. 12-760, which applies to multiple kinds of boards. Even so, the court ruled that the test for “dissatisfied with” in K.S.A. 12-759(f) should be considered the same as the test for “aggrieved by” in K.S.A. 12-760. The Kansas Court of Appeals cited its former decision in Tri-County Concerned Citizens, Inc. v. Board of Harper County Comm’rs that found that the plaintiffs had standing under K.S.A. 12-760 because the plaintiffs would suffer a pecuniary loss as a result of the county’s decision to allow a waste disposal company to build a new landfill nearby. Applying this decision to the current case, the court ruled that the Hackers, Gronniger, and Kansas Paving had a substantial grievance and a pecuniary interest in the effects of the Board’s decision, granting them standing under K.S.A. 12-759(f).

The Kansas Court of Appeals stated that under K.S.A. 12-759(e)(1), a board of zoning appeals is authorized to grant a variance only if all five statutory criteria are met. The only criterion at issue was the finding of an unnecessary hardship. In the past, the Kansas courts have held as a general rule that a variance may not be granted to relieve a self-created hardship. The Board argued that an unnecessary hardship may be found where hardship is imposed by self-created business growth. The plaintiffs argued that it cannot.  Citing four different cases as precedent, the Kansas Court of Appeals found that there was no indication that the Heins would lose their business without the variances; the business would simply be less profitable. Considering this, self-created business growth is not an exception to the general rule that an unnecessary hardship may not be self-created.

The Kansas Court of Appeals concluded that the district court rightly found that the Board acted outside its scope of authority in granting the variances. The Heins expanded their business with full knowledge of the zoning regulations under which they were operating. Because the Board’s findings were not supported by substantial evidence, the district court’s rule to vacate the variances granted by the Board was affirmed.

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E-mail from planning department staff member after building permit issued was not an “appealable decision” regarding the permit

Gary Taylor

by Gary Taylor

BT Residential, LLC v. Board of Zoning Adjustment of the City of Kansas City
(Missouri Court of Appeals, December 4, 2012)

On July 16, 2010, the City of Kansas City issued a permit for the construction of a cellular tower to the American Tower Corporation (ATC). In early August 2010, BT Residential (BT), the owner of a neighboring property, became aware of the construction of the cellular tower after a 150-foot, steel pole was erected and contacted the City to review the plans for the tower. On August 10 representatives for BT met with members of the City Planning Department to discuss perceived violations of the Development Code. On August 17 the attorney for BT met with the Director of the Department and explained why BT believed that the building permit had been improperly issued because the cellular tower and equipment building on the property did not meet the requirements of the Development Code. On August 18 BT’s attorney sent a follow-up email reiterating his points and asking the Department to issue a stop-work order and to revoke the permit. On August 29 the attorney sent an email to another member of the Department indicating that he had not yet received a written response from the Department. On August 30 The Department member sent the attorney an email stating: “My apologies if there was any miscommunication, I intended the written response to follow once information to allow a complete response was available. We have been unable to locate the documentation related to the demonstration of need provisions, but have been in contact with the applicant and now expect receipt by midweek. We will continue to follow-up with the applicant as needed, and will provide you an update once we have confirmed compliance to those provisions.” The e-mail went on to cite the relevant provisions of the Development Code as they related to the project.  On September 3 BT filed an appeal with the Board of Zoning Adjustment (BZA) claiming to challenge “the determination of the City’s Building Official… that the permit issued to American Tower Corporation for construction of a new cell tower complies with the City’s Zoning and Development Code, Chapter 88.” ATC filed a response opposing BT’s appeal and moving for dismissal of that appeal based upon the fact that BT had not filed its appeal within fifteen days of the issuance of the building permit or within fifteen days of discovering that such a permit had been issued as required under the Development Code.  The BZA dismissed BT’s appeal, concluding that the August 30 email from the staff member of the Planning Department was not an appealable decision under the Development Code.  When BT appealed the BZA decision the trial court affirmed.

In response to BT’s claims that the August 30 email constituted an appealable administrative determination, the Court of Appeals reviewed the City’s Development Code and concluded that in order for the e-mail to constitute an appealable decision two elements must be present: (1) that the Director of the Planning Department had the authority to revoke the building permit and (b) that he delegated that authority to the staff member who sent the e-mail.  The Court determined that neither were the case.  No provision of the City Development Code grants the Director the authority to revoke a previously granted building permit based on considerations which existed at the time of the permit’s original issuance. Furthermore, even if the authority did exist somewhere in the Development Code there was no evidence in the record that such authority was delegated to to the staff member or for that matter, whether the staff member even purported to exercise such authority. While BT argued that it could be inferred from the fact that the staff member handled communication with BT following BT’s request that the permit be revoked that the Director had authorized the staff member to decide whether to revoke the permit, the BZA was not required to make such an inference. In addition, the language contained in Franzen’s e-mail could just as reasonably be interpreted as an explanation of the Director’s decision to issue the permit, as opposed to a decision whether to revoke that permit. Thus, the BZA could reasonably have concluded that Franzen’s e-mail was not an appealable decision.

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Letter to council member insufficient to give notice of charges for removal from office

Gary Taylor

by Gary Taylor

Clark v. City of Sidney
(Iowa Court of Appeals, November 29, 2012)

Clark was elected by popular vote to the city council of the City of Sidney in November 2009 as one of its five at-large members. Regular meetings were held the second Monday of each month, and special meetings at other times. From January 2010 through September 13, 2010, Clark attended five of nine regular meetings and five of ten special meetings.  In June 2010, the attorney for the City sent Clark a letter asserting his failure to attend the last three regularly scheduled meetings rose to the level of “willful or habitual neglect or refusal to perform” his duties under Iowa Code section 66.1(1). This same letter noted that, should Clark continue to be absent, he may be asked to step down or the City may take action to remove him. Despite this warning, Clark failed to attend three subsequent meetings.  In August 2010, Clark received another letter from counsel for the City of Sidney, informing him that a hearing would take place at the September regular meeting of the Council “on written charges filed with the Council of the City of Sidney to remove you as City Council member for the willful or habitual neglect or refusal to perform your duties as a City Council member, for willful misconduct or maladministration as a City Council member and for intoxication as a City Council member.”  The letter was filed with the Council, but no written charges were prepared and filed.

Clark attended the September regular meeting with an attorney. His attorney objected to the removal hearing, stating both he and Clark had “no idea what the complaints” against him were. The mayor, who ran the meetings but did not vote, responded that these complaints were regarding Clark’s attendance and misconduct at a local establishment. No witness was put under oath and the statements were made in a question and answer format. Clark presented several witnesses including his wife, father-in-law, and mother. He stated he missed one meeting due to the death of his father and another due to a no-contact order which forbade him from having contact with another council member’s son and immediate family, which arose out of an altercation between the son and Clark at a local bar. Clark also stated that he could not attend special meetings because their timing conflicted with his work. The City presented no independent witnesses and no written evidence, although the other council members made statements concerning Clark’s failure to attend meetings, with lesser attention paid to the misconduct and intoxication allegations. Following this, a vote of the five council members occurred. The vote was 4-1 in favor of Clark’s removal, with Clark himself casting the lone dissenting vote. Clark appealed his dismissal to the district court through a writ of certiorari, which was dismissed.  He then appealed to the Court of Appeals.

Clark contended the August letter filed with the city council did not comply with the statutory requirements under Iowa Code section 66.29 which states:

Any city officer elected by the people may be removed from office, after hearing on written charges filed with the council of such city for any cause which would be ground for an equitable action for removal in the district court, but such removal can only be made by a two-thirds vote of the entire council.

The district court found that “[o]ther than the letters from the city attorney, there were no other written charges or specifications filed against Mr. Clark.” The city clerk testified the August 2010 letter to Clark from the city attorney was filed with her, and that she stored it with the other city council filings and gave a copy to the mayor. She told Clark before the September hearing that no charges were filed. The letter specifically noted the hearing was “on written charges filed with the Council.” The August letter itself, therefore, was not intended by the council or their attorney to be “written charges.” Observing that the statute requires written charges to be filed and that a court must give a removal statute strict construction, the Court of Appeals found that Clark was required to receive notice of the details of the charges before the council’s hearing in this case. The August certified letter received by Clark restated the language of the removal statute, failed to set forth any specific information regarding the grounds for removal, and referred to written charges filed with the city council that did not exist. The August letter did not fulfill the City’s statutory duty to provide Clark with notice prior to removal.  The Court of Appeals reversed the district court’s decision and remanded the case for entry of an order sustaining the writ of certiorari.

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Investigations by zoning board member outside the hearing process did not give rise to due process violation

by Kaitlin Heinen and Gary Taylor

Timothy Hutchinson v. Wayne Township Board of Zoning Appeals
(Ohio Court of Appeals, 12th Appellate District, September 10, 2012)

Tim Hutchinson filed an application for a conditional use permit from Wayne Township Board of Zoning Appeals (BZA) to operate a Halloween-themed nature walk on part of Jana Hutchinson’s farm, which was zoned A-1, agricultural district. The BZA held a hearing for Tim Hutchinson’s application in July of 2008. At this hearing, it was found that the nature walk would be open 6-8 weekends per year during the Halloween season from 5pm-midnight. Traffic would come from Wayne-Madison Road using two unpaved roads, while parking would be provided in nearby open fields. The BZA  found that Wayne-Madison Road is a narrow, two-lane, dead-end road with no lighting and with narrow berms that steeply slope into drainage ditches, although Hutchinson presented expert testimony from a traffic engineer that Wayne-Madison Road would be able to handle the additional traffic. The BZA also heard complaints from residents in the area, which addressed safety issues arising from the use of Wayne-Madison Road by drivers who are inexperienced with gravel roads as well as the peace and the security of the residents in area that may be affected by the increased traffic. The BZA adjourned the hearing in progress, expressing concern that Tim Hutchinson was not a proper applicant since he was only a tenant on the property and not the landowner. Jana Hutchinson was then joined on the application for a conditional use permit, and when the hearing resumed she provided additional information to BZA about security, traffic, road maintenance, and insurance for the nature walk.

In December of 2008, the hearing was reconvened. Tim Hutchinson testified that he estimated 500 cars would be expected at the nature walk each evening. However, BZA member Carleen Yeager stated that she had researched attendance at other Halloween-themed events and, to the contrary, 500 cars would be a “light night” and that nearly 1500 cars would be expected on a “good night.” Tim Hutchinson countered that the nature walk was new and that he was “starting off small.” At the end of the hearing, BZA member Jerry Gerber moved to deny the Hutchinsons’ application.  The vote was unanimous against the application. The Hutchinsons appealed the BZA’s oral denial of the application to the Butler County Court of Common Pleas and the case was remanded to the BZA for the issuance of a written decision.

In March of 2010, the BZA issued its written decision, which found that the Hutchinsons’ nature walk would be inconsistent and incompatible with the current uses of the surrounding area and would adversely affect the general welfare of neighboring residents in the area. The Hutchinsons’ appealed. In January of 2012, the common pleas court issued its decision that affirmed the BZA’s denial of the Hutchinsons’ application for a conditional use permit.

The issue before the Ohio Court of Appeals in this decision then is that “the common pleas court erred to the prejudice of the [appellants] by affirming the BZA’s decision.” The Hutchinsons claimed that the trial court erred in its affirmation of the BZA’s decision, even though the appellants had satisfied all requirements of the zoning resolution, and that the trial court erred in finding that their due process rights were not violated by BZA member Yeager’s outside investigation.

In regards to the Hutchinsons’ first claim, the township’s zoning code requires that conditional uses must meet several criteria, such as not adversely affecting the health, safety, comfort and general welfare of the surrounding area by threats of traffic hazards, noise disturbances, night lighting, fire hazards, etc. (Section 25.053). However, citing prior case law the court stated that satisfaction of these requirements does not make approval automatic, and that the township zoning code also requires the BZA to “give due regard to the nature and condition of all adjacent uses and structures” surrounding the proposed conditional use. After reviewing the record, the court found that the Hutchinsons did not satisfy all the requirements in the code. Despite the Hutchinsons’ presentation of an expert witness, the BZA had reason to find that the increased traffic would be incompatible with the surrounding area. Thus the trial court did not err in their decision to affirm the BZA’s denial on this count.

As for the due process violation alleged, “[t]he essence of due process dictates, at the very least, that an individual have an opportunity to be heard and to defend, enforce and protect his rights before an administrative body in an orderly proceeding.” Here, Yeager admitted to making “some calls” inquiring into the reasonable number of cars to be expected for a Halloween-themed event. The Hutchinsons argued that her statement negatively affected their ability to have a fair hearing, since they were not able to cross-examine Yeager’s informants as well as Yeager herself, at the risk of losing her vote. Again citing previous caselaw, the court stated that “[t]he combination of investigative, executive and adjudicative functions does not necessarily create a risk of bias or unfairness in an administrative adjudication.” The court noted that the BZA’s decision stated, in part, that it was denying appellants’ application because the Nature Walk “would significantly increase traffic flow, according to applicant’s testimony, by hundreds of cars each evening.” From this statement, according to the court, “it is clear that the BZA did not rely on Yeager’s view that as many as 1,500 cars would be traveling Wayne-Madison Road, but only that 500 cars would be on the road, as indicated by Tim Hutchinson.”

Further, the court noted that the BZA unanimously denied appellants’ application. Thus, even if Yeager’s statements demonstrated her own bias and prejudice toward the Nature Walk, the exclusion of her vote would not have altered the result.   No due process rights were violated.

The judgment of the trial court was affirmed, maintaining the denial of the Hutchinsons’ application for a conditional use permit to operate a Halloween-themed nature walk.

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Regulation of inflatable devices at car dealership withstands First Amendment scrutiny

by Kaitlin Heinen

PHN Motors, LLC v. Medina Township
(Federal 6th Circuit Court of Appeals, September 4, 2012)

PHN Motors  et al. in northeastern Ohio filed a complaint that Medina Township violated their First Amendment right to free expression, their Fifth Amendment rights under the Due Process clause, and their Fourteenth Amendment rights under the Equal Protection Clause. The complaint arose from the interpretation and enforcement of Medina Township Zoning Resolution (MTZR) § 603E, which prohibited PHN Motors from displaying inflatable devices at their car dealership in a commercial district of Medina Township.

PHN Motors displayed 27 inflatables owned and rented by Scherba Industries, Inc. and has been cited several times by the Medina Township Zoning Inspector in violation of MTZR § 603E as a result. PHN Motors claimed that MTZR § 603E is unconstitutionally vague and infringes upon their First Amendment free speech rights. They also alleged that the regulation was “unevenly” enforced because it was only sometimes enforced against PHN Motors and because it was enforced unequally between commercial and residential districts.

The district court ruled in favor of Medina Township on all claims, so PHN Motors appealed  to the U.S. 6th Circuit Court. They challenged the district court’s dismissal of its First Amendment claims, its finding that MTZR § 603E is not unconstitutionally vague thus not violating any due process rights, and its conclusion that Medina Township’s enforcement of MTZR § 603E does not violate any equal protection rights.

In regards to their First Amendment claim, PHN Motors argued that MTZR § 603E consists of a content-based regulation of both commercial and non-commercial speech, which violates the protections for free speech under the First Amendment. To the contrary, Medina Township argues that the regulation is content-neutral, and that PHN Motors’ speech is only commercial in nature. The U.S. 6th Circuit Court found the MTZR § 603E is a content-neutral restriction upon speech. More specifically, MTZR § 603E prohibits certain elements the may be added to signs in Medina Township, such as “elements which revolve, rotate, whirl, spin, or otherwise make use of motion to attract attention” as well as signs that “contain or consist of flags, banners, posters, pennants, ribbons, streamers, spinners, balloons, and/or  any inflatable devices, search light, or other similar moving devices.” Medina Township’s purpose behind the regulation is for an improvement in the aesthetics of the township’s commercial areas and to minimize motorist distractions that can potentially be a safety hazard for passing traffic. The 6th circuit court found that the regulation does not, on its face, regulate speech based upon its content. Additionally, the free speech in question is commercial in nature, which is expressly for the furtherance of economic interests. Even though PHN Motors counter-argues that many of the inflatables displayed depict holiday characters, the court found that they are used nonetheless as a brand-recognition tool, with the intent of attracting business. Commercial speech is provided a lesser protection by the Constitution, for which intermediate scrutiny is the appropriate standard of review to be applied. Intermediate scrutiny requires that the government restriction on speech be narrowly tailored to further a substantial governmental interest. Aesthetics and safety both can be considered substantial governmental interests. In regards to aesthetics, Medina Township has expressed a substantial need to clean up the appearance of its commercial areas. As for safety, minimizing distractions for passing motorists is also substantial. The objectives of MTZR § 603E are “reasonable” and “not more extensive than necessary.” So the regulation is a reasonable means to achieve the ends of improved aesthetics and increases motorist safety. A ban on inflatables is not more extensive than necessary to advance these interests then. In conclusion, no First Amendment violations occurred.

Addressing whether MTZR § 603E is unconstitutionally vague, the 6th circuit court  began with the presumption that local zoning ordinances are valid and applied the standard of whether or not a person of ordinary intelligence would be able to determine what conduct is regulated or prohibited. PHN Motors argues that MTZR § 603E implies that movement is necessary to prohibit the use of inflatables, and that the enforcement of this regulation is inconsistent because it is left solely to the Zoning Inspector, who is unsupervised and enforcement is left to her discretion. The 6th circuit court ruled that the regulation was not vague, confusing, ambiguous, or inconsistent. Rather, the legislative intent behind the regulation was clear in regards to its ban on inflatables, the enforcement of the regulation does not violate PHN Motors’ due process rights, and a person of ordinary intelligence would know that inflatables are prohibited by the plain language used in the regulation. Considering the multiple references to a ban on devices that employ movement and “as inflatables of the type displayed by BDK are soft and often move in even the slightest breeze,” it can reasonably be concluded that all inflatables are banned. As for the Zoning Inspector, she and Medina Township have consistently upheld that inflatables are banned and her enforcement of this is overseen by the Board of Zoning Appeals. All in all, the court concluded that MTZR § 603E is not unconsitutionally vague.

Lastly, the court addressed PHN Motors’ Equal Protection claim in regards to the enforcement of the ban in commercial areas, but not residential. The court found that PHN Motors did not provide adequate evidence that property residing in residential districts is similarly situated to property residing in commercial districts. Medina Township, however, showed that property zoned for residential use is different than property zoned for commercial use in that residential districts draw significantly less traffic compared to commercial districts and that commercial districts are visitors’ first impression of the town. As a result, Medina Township has a greater interest in regulating the aesthetics and safety of these areas. PHN Motors also failed to show that the differential treatment lacks a rational connection to a legitimate government interest. The Zoning Inspector even testified that she does not enforce the inflatable ban in residential areas because MTZR § 603E does prohibit them there, since they are not for purposes of advertisement on residential property. The court concluded that no Equal Protection violations happened.

The ruling of the district court was affirmed.

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Announcing Spring 2013 Intro to Planning and Zoning workshops

Gary Taylor

It is once again time for ISU Extension and Outreach Introduction to Planning and Zoning workshops.  It is a three-hour workshop designed to introduce the basic principles of land use planning and development management to elected officials, planning and zoning officials, and board of adjustment members without formal training in the subjects.  Using case scenarios in a highly-interactive format, the workshop highlights issues frequently faced in the land use process.  The workshop is offered annually in eight locations across the state.  Locations change from year-to-year so that city and county officials are able to attend a location near them at least once every two years.  The dates and locations for Spring 2013 are:

March 25 – Council Bluffs, Hilton Garden Inn
March 27 – Fort Dodge, Best Western Starlight Village
April 1 – Davenport, River Music Experience Performance Hall
April 2 – Fairfield, Fairfield Arts and Convention Center
April 3 – Waterloo, Waterloo Center for the Arts
April 8 – Dubuque, Grand River Center
April 9 – Johnston, Hilton Garden Inn

Registration brochures will be in the mail in late January.  You will also be able to download a registration form from the Intro to Planning and Zoning Workshops page (link to that page is above) at around the same time.

All workshops begin with registration and a light supper at 5:30 p.m.  The program begins at 6:00 p.m. and concludes by 8:45 p.m. The registration fee is $55 per individual.  This fee is reduced to $45 per individual if a city or county registers 5 or more officials to attend.  The fee covers the workshop instruction, workshop materials, and supper.

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Smart Growth America awards technical assistance to 1 community, 1 organization in Iowa

Gary Taylor

The city of Carlisle, Iowa and the Des Moines Area Metropolitan Planning Organization are among the 22 recipients of Smart Growth America’s 2013 technical assistance awards.  Each year, Smart Growth America makes a limited number of technical assistance workshops available to interested communities for zero cost. This competitive award gives communities a chance to understand the technical aspects of smart growth development through a one- or two-day workshop on a subject of their choosing.

The program is funded through a grant from U.S. Environmental Protection Agency’s Office of Sustainable Communities under its Building Blocks for Sustainable Communities Program. The Building Blocks program funds quick, targeted assistance to communities that face common development problems. Three other nonprofit organizations—Forterra, Global Green USA and Project for Public Spaces—also received competitively awarded grants under this program to help communities get the kinds of development they want.

You can read more about the award here.

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Monona County’s rezoning of property along Loess Hills Scenic Byway did not constitute illegal spot zoning

Gary Taylor

by Gary Taylor

Woodward and Johnson v. Monona County Board of Supervisors
(Iowa Court of Appeals, November 15, 2012)

Cory Bumann purchased 2.8 acres of land in rural Monona County with the intent of constructing a bar and restaurant to serve tourist traffic coming to enjoy the Loess Hills. The land is located at the corner of the paved county road L-20 – which is a segment of the Loess Hills Scenic Byway – and the gravel road 153rd Street. Across county road L-20 (approximately 1/2- to 3/4-mile away), but not accessible directly by L-20, is the Timber Ridge Winery and Vineyard, which is owned by other members of the Bumann family. Timber Ridge does not have a bar or restaurant, but serves breakfast for approximately 400 guests on the weekends in the summer.  Timber Ridge also bike and ATV trails, and a campground.  The land that is the subject of this litigation is connected to Timber Ridge, across L-20, by a dirt path.

Bumann requested rezoning of the land in question from agriculture to a classification that would allow for a bar and a restaurant.  The county planning and zoning commission was unable to reach a recommendation, and forwarded a “split recommendation” to the board of supervisors.  on May 25, 2010 the board of supervisors approved the rezoning request.  Woodward and Johnston (plaintiffs), area landowners, challenged the decision as a case of illegal spot zoning.  The district court agreed and invalidated the rezoning.  Monona County appealed the decision.

After noting that a board of supervisor’s decision regarding a rezoning carries with it a strong presumption of validity, the Court of Appeals reviewed the relevant Iowa caselaw pertaining to spot zoning:

Spot zoning occurs when an ordinance creates a small island of property with restrictions on its use that are different from those imposed on surrounding property…. While spot zoning is not favored, it is not automatically illegal…. Spot zoning is valid if it passes a three-pronged test.  The court must determine (1) whether the new zoning is germane to an object within the police power; (2) whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property; and (3) whether the rezoning is consistent with the comprehensive plan.

The district court found that the rezoning decision passed the first and third prongs, but failed the second.  The Court of Appeals confined its review to the second prong; plaintiffs did not challenge the district court’s conclusions with regard to the other two.

The Court of Appeals noted that to determine whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property it must look at several factors:

Size of spot zoned and uses of surrounding property.   The county zoning administrator testified that the closest commercially zoned property was two to five miles away. The land surrounding the property on all sides was zoned for agriculture, but Timber Ridge had a special use permit to allow recreational uses such as a private campground and dirt-bike riding.  Plaintiffs land was farmland and timberland, but the county comprehensive plan did not identify the Loess Hills region as prime agricultural land.  One county supervisor testified that Timber Ridge at one time had a restaurant and bar that has since closed down.  Another supervisor testified that he considered the rezoned property and Timber Ridge to be similar in that they were gathering places.

Changing conditions of the area.  It was unclear from evidence at trial whether the extensive tourism promotion of the Loess Hills region was a recent occurrence, but the comprehensive plan specifically designating the Loess Hills as such was adopted in 2007.  L-20 had been paved for 20-25 years, and Timber ridge had been located in the area for much longer than that.

Uses to which subject property has been put.  Plaintiffs testified that the land in question previously had been used for row crops, but other testimony contradicted that.  It was recognized that the land was not prime agricultural land, but also that the site would have to be leveled for a bar to be constructed.

Suitability and adaptability for various uses.  County supervisors testified that the property’s location along the Scenic Byway on a paved road, its proximity to Timber Ridge, and favoring a location that was not prime agricultural land made this property suitable for a restaurant.

The district court found that the second prong was not satisfied because the paving of L-20 and the proximity to Timber Ridge were not recent occurrences, and that any land bordering L-20 would be equally suited for a restaurant and bar; however, the Court of Appeals pointed out that the district court is only to look to see if there has been a sufficient showing to reasonably support the board of supervisor’s judgment. The court is not to supersede the county’s discretion just because the court would reach a different conclusion.  Finding that there was a reasonable basis to support the county’s rezoning decision, the Court of Appeals reversed the district court.

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Supreme Court to address FCC “shot clock” for local governments on cell tower applications (sort of)

Gary Taylor

Last month the US Supreme Court agreed to hear two cases concerning the FCC’s “shot clock” (previous blogposts on the shot clock are found here) which set time limits on local governments for deciding on zoning requests for cell towers: 90 days for collocations (placing antennas on existing towers) and 150 for all other applications.  Actually the cases don’t directly address the shot clock question.  As you know, law is complicated!

The cases are similar so only one will be explained here.  In Arlington v. FCC the city of Arlington, Texas filed suit claiming that the FCC could not set the shot clock time limits because the FCC cannot determine its own power under the Federal Communications Act. When Congress passed the Act, it granted a certain amount of power to the FCC to enforce and define the rules under the Act, but the city of Arlington argued that setting these specific time limits went too far, because it ran contrary to the provision in the Telecommunications Act that leaves the zoning permitting process in the hands of the local government.

Here is the complicated part.  The case went before the Federal Fifth Circuit Court of Appeals.  The FCC argued that under the long-standing Chevron doctrine (arising from the case of Chevron U.S.A. v. Natural Resources Defense Council) courts must always defer to an agency’s interpretation of a law so long as the interpretation is reasonable and “permissible.” The city of Arlington countered that the Supreme Court has never determined whether the Chevron doctrine applies to situations where the agency is venturing to define the reach of its own jurisdiction under a particular law. The Fifth Circuit sided with the FCC and deferred to the agency’s interpretation that the FCC had the authority to set time limits on local governments (having the effect of affirming the declaratory ruling creating the shot clock). Arlington appealed to the Supreme Court, which agreed to hear the case exclusively to answer whether the Chevron doctrine applies in this situation. In other words, the Supreme Court is not deciding on the legality of the shot clock itself. It is deciding whether a federal court must defer to the FCC’s interpretation that the FCC has the authority to institute the shot clock.  If the Court determines that courts must give deference to the agency’s interpretation of the Telecommunications Act on this issue it will, in effect, preclude this and future challenges.

Oral arguments are scheduled for January 16.

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