Year: 2013

Application to heritage preservation commission for a certificate of appropriateness is a “written request relating to zoning” under Minnesota zoning law

by Kaitlin Heinen

500, LLC v. City of Minneapolis
(Minnesota Supreme Court, September 25, 2013)

500, LLC owns a building at 500 N 3rd St. in Minneapolis and would like to develop the building into an office. 500 submitted a site plan application to the City in September 2008, which the Minneapolis City Council approved. Before reviewing the application, however, the Minneapolis Heritage Preservation Commission nominated the property for designation as a local historical landmark, which placed the property “under ‘interim protection,’ which prohibits ‘destruction or inappropriate alteration [of a nominated property] during the designation process’ in the absence of a ‘certificate of appropriateness.'” (Minneapolis, Minn., Code of Ordinances §§ 599.240, 599.320) So 500 submitted an application for a certificate of appropriateness on May 6, 2009, but the City Council denied the application on July 31, 2009. Ten months later, the City Council approved a resolution designating the property as a local historical landmark, which became final and effective in June 2010.

In October 2010, 500 filed this action against the City, alleging that the City Council “violated…§ 15.99, subd. 2(a), because it failed to approve or deny the application for a certificate of appropriateness within 60 days.” Such failure results in automatic approval at the end of the 60-day period. So 500 requested “judgment that its ‘application for [a] certificate of appropriateness [was] approved and granted by operation of law.'” The district court held that Minn. Stat. § 15.99, subd. 2(a) did not apply because “decisions regarding historic preservation are not brought into or linked in logical or natural association with actual zoning decisions.” The court of appeals affirmed on the grounds that “[b]ecause an application for a certificate of appropriateness was a request to ‘make alterations to the property,’ not to conduct a specific use of the land, the court concluded that an ‘application for a certificate of appropriateness is not a request relating to zoning.'”

The question before the court is whether an application to a heritage-preservation commission for a certificate of appropriateness is a “written request relating to zoning” under Minn. Stat. § 15.99, subd. 2(a). If so, the City had only 60 days to “approve or deny” the application submitted by 500, otherwise automatic approval occurs by operation of law. The court must first determine whether the statute is ambiguous. Minn. Stat. § 15.99 subd. 2(a) does not define “relating to” or “zoning,” so the court must apply their plain and ordinary meanings. “Relating to” means “to bring into…association with,” and the court defines “zoning” as “the regulation of ‘building development and uses of property.'” These definitions together indicate that the statute is unambiguous because it “refers to a written request that has a[n] association…to the regulation of building development of the uses of property.” Within this meaning, the 60-day time limit in § 15.99 subd. 2(a) applies.

The City argued that the statute only referred to “those requests…explicitly authorized by an applicable zoning ordinance or statute.” The court disagreed because the City’s interpretation fails to apply the plain and ordinary meaning of “relating to.” Though considered “broad” by the United States Supreme Court, the City’s interpretation of “relating to” conflicts with the court’s requirement “to give meaning to every word and phrase in a statute.” Additionally, the City’s interpretation adds words of limitation. The association mentioned in the statute is to zoning itself, not zoning specifically authorized by zoning ordinances or statutes. Thus the court held that the City’s interpretation of § 15.99 subd. 2(a) is unreasonable.

For 500’s application for a certificate of appropriateness to qualify “as a written request relating to zoning,” the application must have an association with the regulation of building development and the uses of property. The court concluded there to be such an association. First, the heritage-preservation proceedings are associated with zoning because they are similar to hearings on conditional use permits. A certificate of appropriateness affects specific property rights, without which approval of by the Commission or City Council 500 cannot develop the building into an office. This requirement is typical of a zoning restriction. Second, the historic-preservation-enabling laws recognize an association between heritage preservation and zoning. The Minnesota Historic District Act allows municipalities to establish commissions with “the power to provide special zoning conditions for…historic districts” and to “amend zoning ordinances to encompass…historic districts in zoning legislation.” (Minn. Stat. §138.74) These commissions can also approve “use variances to a zoning ordinance.” (Minn. Stat. § 471.193 subd. 3(6)) These laws point towards a definitive association between historic preservation and zoning.

Finally, the City’s heritage-preservation ordinances identify an association an application for a certificate of appropriateness and zoning. “Before issuing a certificate of appropriateness, the Commission must find that any proposed alteration is ‘consistent with the applicable policies of the comprehensive plan.'” “Zoning ordinances implement the policies and goals of the comprehensive plan.” The president of the planning commission even opposed 500’s application because the proposed development was inconsistent with the City’s comprehensive plan, which further supports that an application for a certificate of appropriateness is “a written request relating to zoning.” Having established this, the City failed to approve or deny 500’s application within 60 days, so the court reversed and remanded the case to order the granting of the certificate of appropriateness.

Historic preservation, Minnesota courts, Statutory interpretation , , ,
Leave a Comment on Application to heritage preservation commission for a certificate of appropriateness is a “written request relating to zoning” under Minnesota zoning law

Conditional rezoning agreement limits processing and retail sales to deer season

by Kaitlin Heinen and Gary Taylor

Patricia D. and Michael P. Fowler v. Muscatine County Board of Supervisors
(Iowa Court of Appeals, October 23, 2013)

Patricia and Michael Fowler asked the Muscatine County Zoning Commission to rezone their property from A-1 agricultural to C-1 commercial, to permit the operation of a seasonal deer processing facility and retail counter. The Fowlers executed an agreement that restricted the property’s use to “[o]nly wild game processing….[r]etail products in the wild game category…and supporting wild game products….” This agreement included a description of “Steve’s Meat Shop” and its products. Once executed, the commission recommended that the Muscatine County Board of Supervisors approve the zoning request, which the board did, passing an ordinance that rezoned the Fowlers’ property accordingly.

The Fowlers petitioned to have their property rezoned again to “add service of ready-to-eat food,” such as hot sandwiches. The commission recommended that the board deny this request; the board did so. The Fowlers sought to annul and vacate the board’s denial of their application in district court. The board resisted, and additionally argued that retail services could only be offered seasonally. The district court allowed the retail services to be conducted year-round, but denied the Fowlers’ request to include “ready-to-eat foods” or a “deli shop.” Both the Fowlers and the board appealed to the Iowa Court of Appeals.

The issues before the court in this case include: “(1) whether an ordinance that rezoned certain agricultural property to a commercial classification authorized the operation of a year-round retail establishment and (2) whether the retail establishment could sell ready-to-eat foods.”

The court initially observed that if an “ordinance is plain and its meaning is clear,” the court cannot search for meaning beyond those express terms. However, if the “ordinance is ambiguous, it is appropriate to apply the general rules of construction for statutes.” The board argued the “conditional rezoning agreement contains ‘no reference to year-round retail service,’” so the district court erred in the absence of such words to interpret. The Fowlers countered that the conditional rezoning agreement contains no time restrictions for the retail services, so the district court correctly concluded that they could operate year-round.

Both parties rely on the preamble of the ordinance—“the Property is…to be used as a seasonal deer processing and retail service.” The board argued “the term ‘seasonal’ ‘unambiguously and undeniably places limits on the privileges conferred by the spot zoning.’” The Fowlers countered the term “requires deer processing to occur on a seasonal basis but does not limit ‘retail service.’” The court reasoned that these competing arguments in regards to the term “seasonal” meant that there was ambiguity in the ordinance.

When confronted with an ambiguity, we may consider, among other factors: (1) the object sought to be attained (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) the common law or former statutory provisions, (5) the consequences of a particular construction, (6) the administrative construction of the statute, and (7) the preamble or statement of policy.

The court examined the circumstances surrounding the ordinance’s passage. “At the first meeting with the zoning commission, Michael Fowler explained his reasoning for his rezoning request as follows: ‘[W]hat we’d like to do is to have a seasonal deer processing. We’d like to have a small retail counter that would just be open between October and January.’” Further, when asked whether the retail services would only be open during that period, he replied, “Yeah, deer season.” This resolves the ambiguity of the term “seasonal,” and thus the court concluded the Fowlers’ retail services were to operate seasonally. The court reversed the district court’s judgment in this part.

As for the second issue, the Fowlers argued the court erred in concluding they could not sell ready-to-eat foods at their retail counter. They contended that “retail service” encompasses the sale of ready-to-eat foods. However, the conditional rezoning agreement authorizes them to “prepare products for resale.” The court agreed with the district court that the conditional rezoning agreement did not authorize the sale of deli-style sandwiches that could not “be considered wild game specialty items.” In his statements to the zoning commission, “Michael Fowler stated that the retail store would be limited to wild game, ‘nothing domestic, like beef or pork.’” In addition, “Patricia Fowler explained that deer meat would be bought from a farmer and then sold to the customers.” These statements conclude that the retail service does not encompass ready-to-eat foods. The court affirmed the district court’s judgment in this part.

Contracts/Conditional Zoning, Iowa Court of Appeals, Rezoning, Zoning ordinance interpretation , ,
Leave a Comment on Conditional rezoning agreement limits processing and retail sales to deer season

Coralville city council race gets national attention over Americans for Prosperity campaign spending

Gary Taylor

Americans for Prosperity, a group backed by the Koch brothers, was heavily involved in the Coralville city council race.  A central issue in Coralville’s elections was the city’s decision to use Tax Increment Financing and borrow millions to develop Iowa River Landing, the location of the Marriott Hotel and Convention Center, Von Maur department store (lured from Iowa City), and Backpocket Brewing (definitely worth a try, regardless of your views on government use of TIF). The city still owns and manages several of the properties.  This quote from the New York Times (before the election), sums up the contention:

Critics complain that the debt has prevented the city from lowering property tax rates. They also complain that the complex rules of tax-increment financing siphon property tax money away from the schools, leading the state to pay $2.5 million toward Coralville schools each year.

But city officials argue that their investments have helped the economy boom — $757 million in retail sales last year, a more than fourfold increase since 1997 — and that the debt will be paid. They blame General Growth for stirring much of the criticism, saying the developer was upset that Von Maur went to the Iowa River Landing and not the mall.

If you read the entire article from the Times, and this article from ABC News (after the election), you see that there was a backlash to the outside spending; enough to propel the incumbents to victory in an election that shattered previous records for voter turnout.

 

 

current news ,
Leave a Comment on Coralville city council race gets national attention over Americans for Prosperity campaign spending

6th Circuit boomerangs RLUIPA and related claims back to district court

by Kaitlin Heinen

Tree of Life Christian Schools v. City of Upper Arlington
(Federal 6th Circuit Court of Appeals, September 6, 2013)

Tree of Life Christian Schools purchased property in Upper Arlington, intending to open a private school that would consolidate its campuses. However, the property is located in the City’s Office and Research (ORC) zoning district, in which neither churches nor schools are allowed. Tree of Life unsuccessfully applied for a conditional use permit and unsuccessfully appealed to the Board of Zoning and Planning (BZAP) and the City Council. Upper Arlington uses what is known as ‘non-cumulative’ zoning, in which only building use categories that are designated as permissive uses are allowed as of right, and all other uses are either expressly listed as “conditional uses,” requiring a special permit, or are prohibited entirely.

Tree of Life filed a complaint in district court, alleging religious-based discrimination under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Tree of Life filed four claims, which included “facial and as-applied ‘equal terms’ claims alleging that the City’s land use ordinance violates 42 U.S.C. § 2000cc(b)(1) by treating the School on less than equal terms with nonreligious assemblies or institutions, and facial and as-applied ‘substantial burden’ claims alleging that the ordinance violates 42 U.S.C. § 2000cc(a)(1) by imposing substantial burden on its religious exercise without a compelling government interest.” In addition, “Tree of Life…brought six constitutional claims alleging violations of the rights to free exercise, due process, equal protection, free speech, peaceable assembly; and a violation of the establishment Clause; as well as a claim under the Ohio Constitution.”

The district court ruled in favor of the City because the claims raised were not ripe as a result of Tree of Life not seeking a zoning amendment. Tree of Life appealed, “arguing that the claims are all ripe because the zoning ordinance was finally applied to it when BZAP and the City Council made a final determination that a private Christian School is a non-permitted use under the ordinance.” Tree of Life also argued because their equal terms claims are facial claims, they are not subject to the ripeness doctrine. The City countered that the claims are not ripe because an attempted zoning amendment is uncertain as it is a legislative process.

The court held that “[i]nsofar as Tree of Life alleges a facial claim, however, we have doubts as to its validity because the face of the statute appears to be neutral as to non-Church religious uses. We leave this issue to the district court.” The court also held that in Miles Christi Religious Order v. Township of Northville, the plaintiff’s claim challenging a zoning ordinance was not ripe “because the plaintiff did not seek a variance from the zoning board, and thus the zoning board had not reached a final decision regarding the property. However, the court declined to rule on “whether the holding in Miles Christi covers situations where the plaintiff did not seek a zoning amendment because new information has come to light.” Tree of Life filed a motion to supplement the record because “[w]hile this case was pending, Tree of Life indeed sought a zoning amendment, which the City Council voted to deny. Based on this change of circumstances, the present arguments before this panel are no longer sufficient.” The court remanded this issue to the district court.

Tree of Life also argued that the district court ruled on the merits of the RLUIPA equal terms claim.  However, the court determined “[t]his language [as] dicta, and it does not include an analysis…of any other claim on the merits.” So it is not construed as a separate holding. If the district court determines that this case is ripe on remand, the court left the district court “to rule on the merits of each claim in the first instance.” Finally, the City cross-appealed, asking for a reversal of the district court’s denial of the City’s summary judgment motion on the merits, even though it argued that the court did not have jurisdiction under the final judgment rule to consider its cross-appeal. “The [final judgment] rule is that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated.” Even so, the court dismissed the cross-appeal because it does not issue advisory opinions. The court held “[t]hese issues are best left to the district court.”

The Federal 6th Circuit Court granted Tree of Life’s motion to supplement the record, reversed and remanded this case to the district court on the issue of ripeness in light of new information, and dismissed the City’s cross-appeal.

Federal courts, First Amendment claims, RLUIPA , ,
Leave a Comment on 6th Circuit boomerangs RLUIPA and related claims back to district court

Rails-to-Trails on the US Supreme Court docket

Gary Taylor

This article discussing cases of interest to local governments recently accepted for argument by the US Supreme Court was originally posted on the International City/County Management Association website here.  Of particular concern to readers of this blog is Marvin M. Brandt Revocable Trust v. United States.

“In Marvin M. Brandt Revocable Trust v. United States the Court will decide who owns an abandoned railroad right-of-way:  the United States or a private land owner living next to the right-of-way.  In 1875 Congress passed a law granting rights-of-way to railroads through public land. Over the course of the next century, as trucking became a more popular method of transport, numerous railroads abandoned these rights-of-way.  The United States argues that a 1922 federal statute allows the United States to retain the railroad right-of-way if it is abandoned. If that is the case and the abandoned right-of-way is located in a city, the city automatically receives it from the federal government for free. If the abandoned right-of-way is located elsewhere, a state or local government receives it for free if it establishes a “public highway” on the right-of-way within one year.  State and local governments typically convert abandoned railroad rights-of-way into “Rails-to-Trails.”

Local governments often own and maintain abandoned railroad rights-of-way. In fact, the Supreme Court usually accepts cases where at least two federal circuit courts of appeals have ruled differently on the same issue. In Marvin M. Brandt Revocable Trust v. United States the Tenth Circuit ruled in favor of the United States. In a similar case, Samuel C. Johnson 1988 Trust v. Bayfield County, Wisconsin, the Seventh Circuit ruled against Bayfield County, which intended to build snowmobile trials on the abandoned railroad right-of-way.”

United States Supreme Court ,
Leave a Comment on Rails-to-Trails on the US Supreme Court docket

Wisconsin town zoning board has no jurisdiction in shoreland zoning area regulated by county

1 Comment

by Kaitlin Heinen

Stephen Hegwood v. Town of Eagle Zoning Board of Appeals
(Wisconsin Court of Appeals, September 25, 2013)

Stephen Hegwood owns shoreline property in the town of Eagle upon which he built an outdoor fireplace and pergola…located, respectively, fourteen and eight feet from the lot line.  The property was in an area under the jurisdiction of the Waukesha County shoreland zoning ordinance. Hegwood applied for variances from the county’s twenty-foot setback requirement after these structures were built. Waukesha County conditionally approved both. Then Hegwood applied for variances from the town of Eagle’s twenty-foot setback requirement, but the Town Zoning Board Appeals denied his application. Hegwood filed for certiorari in circuit court. The court reversed the Board’s decision, so the Board appealed to the Wisconsin Court of Appeals.

The Board argued the circuit court erred when it reviewed Hegwood’s appeal as a certiorari action. However, both Hegwood and the Board agreed that Wis. Stat. § 62.23(7)(e)10 governed an appeal of a board of appeals’ decision, which states that “[a]ny person … aggrieved by any decision of the board of appeals … may … commence an action seeking the remedy available by certiorari.” On certiorari review, the court must presume the correctness of the board of appeals’ decision and review the board’s decision to determine whether it “(1) kept within its jurisdiction; (2) proceeded on a correct theory of law; (3) acted in an arbitrary, oppressive or unreasonable manner that represented its will and not its judgment; and (4) ‘might reasonably make the order or determination in question based on the evidence.’” Hegwood was an “aggrieved person” and was “specifically authorized…to seek relief by means of a certiorari action,” according to Wis. Stat. § 62.23(7)(e)10. The statute also allowed the court to determine whether the Board proceeded under a correct theory of law. Thus Hegwood’s action was appropriately brought as a certiorari action.

In addition, the Board argued the court erred in concluding that the Board proceeded on an incorrect theory of law when it applied the town’s zoning code to the fireplace and pergola. Hegwood argued that “Wis. Stat. § 59.692 vests counties with the exclusive authority to zone shorelands.” However, the Board countered that “there is no specific statutory language prohibiting towns from adopting and enforcing zoning ordinances affecting shorelands and that it is permitted to do so pursuant to its village powers.”

The court has previously held that the “legislature has given shoreland zoning authority to counties.” The court concluded that towns do not have zoning authority over the same shorelands, except for limited circumstances, and proceeded to examine the possibilities for town jurisdiction over shorelands asserted by the town.

Wis. Stat. § 281.31 (the “Navigable waters protection law”) subsection (1) “authorize[s] municipal shoreland zoning regulations.” Subsection 2(c) of that statute defines a “municipality” as “a county, village, or city”—towns are not included. Furthermore, Wis. Stat. § 281.31(2)(e) provides that “‘Regulation’ means ordinances enacted… pursuant to any of the zoning…powers delegated by law to cities, villages and counties.” The court reasoned that “[h]ad the legislature intended to generally permit towns to regulate shorelands, we would expect to see a reference to such authority in § 281.31; but no such reference is made.”

The court also considered Wis. Stat. § 59.692 (“Zoning of shorelands on navigable waters”). Subsection 59.692(1m) states that “each county shall zone by ordinance all shorelands in its unincorporated area.” Subsection (2)(a) states that “ordinances…related to shorelands and enacted under § 59.692 ‘shall not require approval or be subject to disapproval by any town or town board.’” The legislature “specifically prohibited towns from having authority to approve or disapprove of county shoreland ordinances operating within the town.” Additionally, subsection (2)(b) established that town regulations in regards to shorelands would have effect only “if they were in existence before enactment of the county ordinance and were more restrictive than the county provisions affecting the same shorelands.” In this case, the town ordinance was adopted after the county ordinance. Even in regards to the DNR’s shoreland zoning standards (Wis. Stat. § 59.692(4)(a)), “the legislature did not include a reference to towns.”

The Board also claimed that it acted appropriately because the town had concurrent zoning authority with the county over shorelands and that it had the authority to reject Hegwood’s application for a variance, since the town passed the zoning ordinance pursuant to village powers. The statute the Board points to (Wis. Stat. § 60.22(3)), however, clearly indicates that “permitting general town regulation of shorelands under village powers does conflict with the statutory scheme of Wis. Stat. §§ 281.31 and 59.692…[and] deliberately excludes towns from having shoreland zoning authority.” The court concluded that from “[t]he plain language of…Wis. Stat. §§ 281.31 and 59.692, the legislature intended that towns would not have authority to regulate shorelands.” Thus, the Board’s claim of authority failed.

The Wisconsin Court of Appeals concluded that the Board had no authority to consider Hegwood’s application for variances. “Had the Board proceeded on a correct theory of law, it would have recognized that Hegwood’s property was subject only to the county’s shoreland zoning ordinance and dismissed his application for the variances as unnecessary.”  The circuit court’s reversal of the Board’s decision was affirmed.

Jurisdiction, Wisconsin courts, Zoning board of adjustment , ,
1 Comment on Wisconsin town zoning board has no jurisdiction in shoreland zoning area regulated by county

Registration open for 2013 APA-Iowa Annual Conference

Gary Taylor

Registration is open for the 2013 APA-Iowa Annual Conference.  The conference will take place October 16-18 in Cedar Rapids, Iowa.  This year’s theme is “From Disaster to Discovery” and will feature many sessions and tours focused on the city’s and region’s recovery from the disastrous 2008 floods.  The conference also offers special sessions for planning students and early career professionals, and CM credits for AICP-certified planners including law and ethics credits.

Register for the conference by going to www.iowa-apa.org.

current news
Leave a Comment on Registration open for 2013 APA-Iowa Annual Conference

Brief run-down of local government cases before the US Supreme Court this fall

Gary Taylor

Several cases involving local government law are being heard by the US Supreme Court this fall.  The three that are most significant to BLUZ readers are:

Town of Greece v. Galloway

Argument scheduled for November 6, 2013

The Town of Greece, New York, followed the fairly common policy of allowing a person of any or no denomination to conduct an opening prayer at its Town Board meetings.  The Town did not preview or approve the prayer in advance; however, the Federal 2nd Circuit Court of Appeals declared the Town’s practice a violation of the Establishment Clause of the United States Constitution.  The Court’s holding could affect the longstanding prayer practices of many local governments.

Mount Holly Gardens Citizens in Action v. Township of Mount Holly

Argument scheduled for December 4, 2013

The question presented by this case is whether a policy or action (here, a plan to redevelop a low-income minority neighborhood in New Jersey) that disproportionately impacts a protected class of citizens without intentionally discriminating on the basis of race or other factors can give rise to a Fair Housing Act (FHA) claim.  It has long been understood in at least nine federal circuit courts that such claims will stand.  A ruling to the contrary would significantly restrict the types of claims brought under the FHA.

McCullen v. Coakley

Not currently scheduled for oral arguments

The issue is the constitutionality of Massachusetts’s selective exclusion law, which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners. If the Court decides the issue on broad constitutional grounds, the constitutionality of similar buffers for clinics, funerals, political gatherings, and other events could be called into question or even overturned.

Fair Housing Act, First Amendment claims, United States Supreme Court , , ,
Leave a Comment on Brief run-down of local government cases before the US Supreme Court this fall

Record sufficient to show council considered all CUP standards

by Kaitlin Heinen

Thomas DeBold v. City of Ellisville, MO
(Missouri Court of Appeals, August 29, 2013)

Wal-Mart was granted a conditional use permit (CUP) from the city council of Ellisville, Missouri on September 5, 2012. The CUP was valid for 12 months via passage of Ordinance No. 3083. Prior to the Ordinance, the CUP had been reviewed by the City’s Planning and Zoning Commission, the City Attorney, the City Planner, St. Louis County, and several other persons and entities. During the July 18, 2012 City Council meeting, the City introduced 27 documents, including reviews done by both City staff and outside consultants.  On September 19, 2012, Thomas DeBold filed an appeal with the City challenging the CUP, but on October 3, 2012, DeBold’s appeal was denied. The trial court found the decision to grant the CUP supported by competent and substantial evidence upon the record, which DeBold appealed to the Missouri Court of Appeals.

First, the court must “consider the ruling of the municipal agency, not the circuit court” and decide only whether the municipal agency’s decision is supported by substantial and competent evidence upon the record. DeBold argued that the trial court applied the incorrect standard of review and “failed to make the required factual findings and legal conclusions.” However, the Missouri Court of Appeals found otherwise after considering the extensive documents reviewed and the factual findings published by the trial court in their “Order and Judgment.”

DeBold also argued that the trial court erred in denying his motion for judgment. City Code Section 400.150 (B)(1) provides that, “[i]f an authorized agent or the leaseholder of the use is requesting the conditional use permit, the property owner must also sign the conditional use permit application.” DeBold claimed that Clarkchester Apartments Association (the landowner) did not sign authorization for the CUP. However, the record shows that all 8 members, who own the Clarkchester apartment buildings, signed the forms, thus satisfying Section 400.150(B)(1) and properly allowing the trial court to deny DeBold’s motion for judgment on these grounds.

Then DeBold argued that the trial court erred in finding that the application for the CUP met the requirements of City Code Section 400.150(F) and that the application was supported by competent and substantial evidence. The City countered that DeBold failed to address 13 of the 17 requirements set out in the Ordinance relating to the granting of a CUP, which thus waives any possible argument on those factors.

In regards to competent and substantial evidence on the record, the court held that there was enough to support the City Council’s decision. As for traffic conditions, the City reviewed the October 11 “Trip Generation and Distribution Technical Memo” and the March 2012 “Traffic Impact Study,” both of which showed that assumptions made on traffic conditions during and after the Wal-Mart Supercenter’s development seemed reasonable and had an overall positive impact. Additionally, the area for the development has been zoned as C-3 Commercial for many years, and the development is similar in size to existing retail centers to the north and east of the area. Also, “there was evidence that the proposed development would not negatively impact traffic, would not increase fire hazards, would increase stormwater capabilities and water quality at the site, would lead to improved utilities, would result in environmental contaminants being cleaned up, would discourage crime through the use of bright lighting, manned store entrances, and surveillance cameras, would increase the City’s revenue, and would catalyze further development within the City”—all compatible uses with the surrounding neighborhood. The City also found “that the proposed project is consistent with the City’s Comprehensive Plan and will feature many of the attributes envisioned as part of the Great Streets Master Plan.” All of this is competent and substantial evidence that the development is consistent with “standards of good planning practices” and is evidence that the proposed use of the development is both reasonable and appropriate for a commercially zoned area.

Finally, DeBold argued that the Ordinance No. 3083 (the CUP) makes no reference to some factors related to the CUP standard.  However, the certified record indicates that City considered all 17 factors required by the City Code. He also claimed that the trial court erred in holding that he failed to adequately plead procedural irregularities before the trial court. Even if he had, “he failed to identify and/or raise any procedural irregularity before the City Council.” To the contrary, “the record demonstrates that DeBold had every opportunity to raise any alleged procedural problem because every document and information necessary to do so was made available to him months before he filed his lawsuit.” (“As public records of the City, these documents were available to any member of the public, from and after the July 18, 2012, meeting.”) Rather, “DeBold has failed to exhaust his administrative remedies [in the context of review of city zoning decisions pursuant to Chapter 89] and thus is not now entitled to judicial review.”

The Missouri Court Appeals affirmed the trial court’s ruling.

Conditional Uses/Special Uses, Missouri Courts , ,
Leave a Comment on Record sufficient to show council considered all CUP standards

Missouri Heritage Value statute declared constitutional; family awarded $2 million in eminent domain proceeding

Gary Taylor

by Gary Taylor

St. Louis County v. River Bend Estates HOA
(Missouri Supreme Court, September 10, 2013)

The Missouri Heritage Value statute (statute) was adopted by the Missouri legislature in 2006.  It provides for additional compensation for the exercise of eminent domain over homesteads, and properties held within the same family for 50 or more years.  If a property has been owned within the same family for 50 or more years, “just compensation” is determined by statute to be fair market value plus an additional 50 percent (“heritage value”), thus equaling 150 percent of fair market value.

St. Louis County condemned 15 acres of property for a highway extension project.  The property was deeded to Arthur Novel in 1904, who farmed it with his wife until their deaths in 1968.  It stayed in the family and was owned by the Novels’ descendents until the condemnation proceedings.  The condemnation court awarded the descendents $320,000 for acquisition of the property, and an additional $160,000 for heritage value, resulting in a total award of $480,000.  The descendents appealed, and at trial the jury awarded them $1.3 million, to which the court added $650,000 for heritage value for a total award of approximately $2 million (including interest).  The county appealed.  Because the challenge was to the constitutionality of the statute the appeal went directly to the Missouri Supreme Court.

The bulk of the opinion addressed numerous evidentiary and procedural issues, but the Court did eventually address the County’s  three constitutional challenges: (1) the statute impermissibly altered the judicial definition of “just compensation” by permitting the addition of heritage value to fair market value; (2) the statute requires condemning authorities (in this case, the County) to expend public funds without a public purpose in violation of the Missouri Constitution; and (3) the statutory requirement that a judge compute heritage value invades the province of the jury to determine just compensation – also in violation of the Missouri Constitution.

Definition of “just compensation.”  The Missouri Constitution declares that “private property shall not be taken or damaged for public use without just compensation.” The US Supreme Court has interpreted “just compensation” to mean the fair market value of the property at the time of the taking.  The County argued that constitutional interpretation is the province of the judiciary, not the legislature.  The Court did not disagree; noting, however, that the statute does not alter the definition of “just compensation,” but rather “provid[es] additional benefits to certain property owners whose real property is taken for public use.” It cited US Supreme Court cases that “support the proposition that a legislature may compensate losses and damages beyond those traditionally included in its interpretation of ‘just compensation.'”  “‘Just compensation’ is a minimum measure that must be paid, not a maximum one.”

Expenditure of public funds.  Missouri Constitution Article III, Section 38(a) states that the legislature “shall have no power to grant public money or property …to any private person, association or corporation….”  The County asserted that compensation payments beyond the constitutional minimum serve no public purpose and are therefore unconstitutional.  To determine whether there is sufficient public purpose behind a grant of public money the Missouri courts have employed the “primary effect” test.  This test allows expenditures whose primary object is to serve a public purpose, even if it involves as an incident an expense which, standing alone, would not be lawful.  The Court determined that the primary purpose of the expenditure was to acquire property for a public purpose, and that the payment for heritage value is merely incident to that public purpose.

Computation by judge of heritage value.  Missouri Constitution Article I, Section 26 requires that just compensation “be ascertained by a jury.”  The Court quickly dismissed this argument by noting its previous declaration that heritage value is a payment in addition to “just compensation” – not part of the just compensation calculation.

The Court upheld the roughly $2 million jury award.

Condemnation, Damages, Missouri Courts , ,
Leave a Comment on Missouri Heritage Value statute declared constitutional; family awarded $2 million in eminent domain proceeding

Subscribe

Archives

Categories

Tags

Admin Menu