Links to law presentations from 2015 APA-Iowa Annual Conference

The powerpoint presentations from the 2015 APA-Iowa Annual Conference held in Sioux City on October 14-16 are now available here.

Thursday afternoon session on Signs and Cell Towers, by Peter McNally, Dustin Miller and Gary Taylor

Iowa APA 2015 Cell Towers
Iowa APA 2015 Signs

Friday morning AICP Law session by Gary Taylor

Iowa APA 2015 Law session

Weeds are not protected speech or expression

by Hannah Dankbar

Discount Inn, Inc. v. City of Chicago
Federal 7th Circuit Court of Appeals, September 28, 2015

(Note that the Court included photos of native Illinois plants in its written opinion; a very unusual practice)

Chicago’s Department of Administrative Hearings decided that Discount Inn, Inc. violated the weed and fence ordinances.  The weed ordinance reads:

Any person who owns or controls property within the city must cut or other‐ wise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200. Each day that such violation continues shall be considered a separate offense to which a separate fine shall apply.

The fence ordinance reads:

It shall be the duty of the owner of any open lot located within the City of Chicago to cause the lot to be surrounded with a noncombustible screen fence …. Provided, however, that this section shall not apply to … sideyards. The owner shall maintain any such fence in a safe condition without tears, breaks, rust, splinters or dangerous protuberances and in a manner that does not endanger or threaten to endanger vehicular traffic by obstructing the view of drivers. Any fence which is not maintained in accordance with these provisions is hereby declared to be a public nuisance and shall be removed … . It shall be the duty of the owner of any lot whose fence has been so removed to replace such fence with a noncombustible screen fence meeting the requirements of this section and of this Code.” Municipal Code of Chicago § 7‐28‐750(a). Violators “shall be fined not less than $300 nor more than $600 for each offense,” and “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.

Discount Inn made two claims: (1) the ordinances violate the prohibition against “excessive fines” in the Eight Amendment; and (2) the weed ordinance is vague and forbids expressive activity protected by the First Amendment.

In regards to the first claim, the Supreme Court has not decided whether this clause applies to state action. This court assumes that it does apply, but found that the fines are not excessive. The fines for both ordinances enforce a legitimate government interest. Fencing vacant lots are important for identifying abandoned lots. The City has an interest in controlling weeds because uncontrolled weeds lead to problems such as obscuring debris, providing habitat to rodents and mosquitos, and contributing to breathing problems.

Regarding the second claim, Discount Inn argued that native plants are mistaken for weeds and their use is unnecessarily limited because of the ordinance. There is no clear definition of a weed in the city code. Discount Inn does not argue that they have native or other decorative plants, but simply rather that the ten-inch rule violates the free-speech clause of the First Amendment. It is true that the First Amendment protects some non-spoken work, such as paintings; however, the Court concluded that these weeds have no expressive value. The owner did nothing to cultivate or design the weeds.

Discount Inn also argues that the ordinances are unconstitutional because they do not specify a statute of limitations. There is no rule that there must be a statute of limitations. Prescribing a statute of limitations for a weed ordinance would require an insane use of city resources.

The decision was upheld.

Minnesota Environmental Protection Act requires EIS prior to issuance of certificate of need for oil pipeline

In the Matter of the Application of North Dakota Pipeline Company LLC for a Certificate and Permit for the Sandpiper Pipeline Project in Minnesota
Minnesota Court of Appeals, September 14, 2015

Friends of the Headwaters (FOH) challenged a decision by the Minnesota Public Utilities Commission (MPUC) to move forward on a final decision on a certificate of need for an oil pipeline by arguing that this violates Minnesota’s Environmental Protection Act (MEPA).

In 2013 North Dakota Pipeline Company LLAC (NDPC) applied for a certificate of need and a pipeline routing permit to connect oil pipelines in North Dakota to other pipelines in Minnesota and Wisconsin. In early 2014 MPUC approved the permits and allowed hearings and environmental review to move forward.

The Energy Environmental Review and Analysis unit (EERA) gathered 53 route alternatives and one system alternative through public outreach that were accepted by MPUC. Route alternatives are defined as, “a deviation from the [NDPC’s] proposed project with no apparent major engineering or environmental issues.” System alternatives are defined as, “a pipeline route that is generally separate or independent of the pipeline route proposed by [NDPC], and that does not connect to the specified Project endpoints.” MPUC decided to bifurcate the certificate of need and pipeline routing permit proceedings. MPUC told EERA to do an environmental evaluation of all of the systems alternatives to be used during the certificate of need proceedings, but that this would be used to develop a record and “not be equivalent in terms of the specificity and level of detail to a comparative environmental analysis undertaken in the route permit proceeding.”

The issue at stake is whether MEPA requires an environmental impact statement before MPUC can make a final decision on a certificate of need for an oil pipeline.

All parties acknowledge that MEPA environmental review must happen at some point during the approval process, but the question is when this must happen. When certificate of need and routing permit proceeding are conducted together Chapter 7852 of Minnesota administrative rules requires applicants to do a comprehensive environmental assessment for the pipeline routing permit. The Environmental Quality Board has allowed this assessment to take the place of a formal environment impact statement. FOH argues that making a decision on the certificate of need without a formal environmental review violates MEPA.

Minn. Stat. § 116D.04, subd. 2a (2014), requires the responsible governmental unit to prepare a detailed EIS before engaging in any “major governmental action” that creates the “potential for significant environmental effects.” Subdivision 2b says that “a project may not be started and a final governmental decision may not be made to grant a permit, approve a project, or begin a project…” FOH argues that issuance a certificate of need qualifies as making a final governmental decision. The court agreed. The language of those statues is unambiguous and as applied to this situation means that when the MEPA complaint environmental review will not happen until after the certificate of need is issued, an environmental impact statement must be competed as part of the proceedings.

The Court of Appeals reversed the grant of a certificate of need and remands to the MPUC to complete an EIS before holding certificate of need proceedings.

Illinois school district construction subject to local zoning

by Hannah Dankbar

Gurba v. Community High School District No. 155
Illinois Supreme Court, September 24, 2015

Crystal Lake South High School is located in the municipality of Crystal Lake, Illinois. The area around the school is zoned as single-family residential (R-2). The school exists as a legal nonconforming use in this area. In 2013 the school decided to build bigger bleachers at the football stadium that are closer to the property line than the old ones. They applied for permits through McHenry County Regional Superintendent of Schools, but not through the City. The City told the school to stop construction until they obtained a special-use permit, a storm water permit and zoning variances. The school ignored this order on the grounds that the construction is for school purposes and therefore is not subject to municipal zoning. Three residential property owners in the area also brought suit against the school to enforce the zoning code.

This case raises the question of whether municipal zoning ordinances govern the construction of football stadium bleachers on school property.

The School Board argued that school construction is not subject to local zoning because the School Code limits a municipality’s review of construction plans. The School Board argues for an interpretation of section 10-22.13a of the School Code – which authorizes a school board “[t]o seek zoning changes, variations, or special uses for property held or controlled by the school district” – in a manner that means that schools are not subject to local zoning.

These arguments failed when presented to the Illinois Supreme Court. The General Assembly for the state chose to make certain entities exempt from municipal zoning ordinances, but no specific restrictions on the authority of a municipality to regulate zoning or storm water management on school property. This means that under strict interpretation of the law the school property is subject to municipal zoning laws. A municipality has the power to develop regulations that “undoubtedly pertain to local affairs.” Actually section 10-22.13a suggests that the General Assembly intended for schools to fall under local zoning ordinances.

Because there is evidence from the General Assembly and the School Code that suggests that schools are intended to fall under local zoning regulations, and there is no statute explicitly limiting the municipality’s zoning powers, the Court determined that it is within the City’s zoning powers to impose their ordinances on the school.

Fear about dangers in the vicinity of property insufficient to constitute nuisance

by Andrea Vaage

Smith & Wunderlich v Conoco Phillips Pipe Line Company
Federal 8th Circuit Court of Appeals, September 15, 2015

Conoco Phillips owns a pipeline constructed in 1930 that runs through part of West Alton, a small town in Missouri. A leak was discovered near the town in 1963. The source of leak was repaired, but no remediation efforts were made to clean up the spill. Contaminants from the spill were discovered at a residence near the spill in 2002. Phillips purchased that residence and two others. Under supervision of the Missouri DNR, the buildings were demolished; 4,000 cubic yards of soil was removed; and monitoring wells were set up to test for chemicals of concern (COCs) such as benzene, toluene, ethyle benzene, xylenes, and lead.

Plaintiffs, the Smiths and Wunderlichs, property owners within 1.1 mile radius of contamination site, filed a class action suit in district court October 2011. Their complaint identified two separate classes, each including property owners within a 1.1 mile radius of the contamination site. The first class sought injunctive relief and monetary damages for creation of a nuisance and negligence for remediation. The second class sought compensation for ongoing expenses of medical monitoring due to potential exposure to pollutants from the pipeline leak. The district court certified the first class, but not the second. In certifying the first class the court relied on evidence and expert testimony that contaminants were found in the monitoring wells, that pollutants could continually shift, and that MTBE, a gasoline additive, had been found at one residence one quarter mile away from the contamination site. Phillips appealed the court’s decision to certify the first class.

In cases of certification, the district court is granted broad discretion. A higher court will only reverse a certification where there has been an abuse of discretion or an error of law. Four standards must be met to certify a class: numerosity, commonality, typicality, and adequacy of representation.

In order for commonality to be met, the plaintiff’s must show that all class members suffered the same injury. The plaintiff’s demonstrated contamination by citing the MBTE found on the Wunderlichs’ property. However, there was no MBTE found at the contamination site. None of the chemicals found at the contamination site were detected at any of the class members’ property; however, plaintiffs’ claim that physical invasion is not required for the contamination site to be a nuisance, because the fear of contamination depressed their property values. The Court cited recent cases that establish that fear alone is not enough to meet the requirement that a nuisance be visible or capable of physical detection. “Negative publicity resulting in unfounded fear about dangers in the vicinity of the property does not constitute a significant interference with the use and enjoyment of land:  The potential for contamination does not amount to sufficient proof of a nuisance. Since plaintiff’s were unable to establish contamination on the class land, the nuisance claim fails.

The Court determined the fear of contamination without sufficient supporting proof was not enough to establish a claim for common law nuisance. The Court found the district court ruling certifying the class was an abuse of discretion. The case was reversed and remanded.

Wisconsin intergovernmental agreement statutes allow for “major” boundary changes

by Hannah Dankbar

City of Kaukauna v. Village of Harrison
Wisconsin Court of Appeals, August 26, 2015

In 2013 the Village of Harrison was created within the Town of Harrison. The two communities created an intergovernmental cooperation agreement to share services and provide more land to the Village. The Cities of Kaukauna and Menasha, the Village of Sherwood along with individual property owners (referred to as the Challengers) argue that the agreement involved a “major” boundary change that exceeds the scope allowed by statute, and that the Town and Village did not strictly comply with statutory notice requirements.

In February 2013 voters in the Town of Harrison approved incorporating a 4.6-square-mile area as the Village of Harrison.  The Town and the Village published a notice about a hearing to discuss an Intergovernmental Cooperation Agreement concerning the provision of municipal services and the apportionment of costs, assets and liabilities, and the boundary line that would form the village limits. In addition to the published notice there was also a notice sent via certified mail to 1910 property owners. As a result of the boundary change 1,736 parcels that had been in the Town were assigned to the Village, which had an initial population of 9,597. This left the Town with 1,316 residents in “growth areas” with intermunicipal agreements with the cities of Appleton and Menasha. Prior to creation of the Village the Town of Harrison had about 10,700 residents.

The Challengers argue that WIS. STAT. § 66.0301 allows only “modest boundary changes incidental to” the sharing of services between governments and requires a prehearing notice to property owners of the effects of the intergovernmental agreement on the boundary lines. The Challengers conceded that the statute is silent on the scope of the boundary changes permitted via intergovernmental agreements, but they argue that the statute should be read to allow only “modest” boundary changes necessary to accomplish the statute’s “primary goal of sharing services between municipalities.” The Court of Appeals, however, believed that this would require it to read beyond the plain language of a statute, which the court determined it would not do.

The Challengers argue that allowing municipalities to achieve major boundary changes via intergovernmental agreements would lead to an “absurd” result and would take meaning away from other statutes related to intergovernmental agreements, and the agency and mandatory public referendum approval process required for other jurisdictional alterations. The court disagreed.  Just because there is a legislative process that the Challengers do not like does not mean it is “absurd”. Statutes can provide multiple methods for altering municipal boundaries.

The Challengers argue that even property owners who are not near the boundary are still affected by it and should be given notice. Wisconsin law provides for publication of “a class 1 notice” in a newspaper that is available to everybody in the area. The court found this to be sufficient notice to those property owners.

Both notices (direct mailed notice and newspaper notice) provided by Harrison made reference to “boundary line adjustments between the Town of Harrison and the Village of Harrison” as being part of the intergovernmental cooperation agreement. This complied with the minimal notice requirement of WIS. STAT. § 66.0301(6)(c)1 by informing property owners that the approval of the agreement would relocate many of them. The language of the statute does not specify what information is required to be in the notice.

The Court of Appeals found that Harrison fully complied with all statutory notice requirements.

Neighbor testimony sufficient evidence to support CUP denial

by Andrea Vaage

August v Chisago County Board of Commissioners
Minnesota Court of Appeals, August 17, 2015

Jeffrey August purchased a 20-acre tract of land in Sunrise Township, in Chisago County, Minnesota. August built a fenced-in arena and later an announcement system for mounted shooting events he hosted on the property. In 2013, August formed a club, Cowboy Mounted Shooting, which held competitions and clinics. Mounted shooting involves contestants on horseback who shoot .45 caliber blanks at balloons on posts in the middle of the arena. These competitions were held throughout the summer, typically starting in the afternoon and continuing until dusk. In 2014, the Chisago County zoning department inspected the property after hearing complaints. The department found the use of the property did not conform to its zoned agricultural use. The zoning department then recommended August apply for a conditional use permit (CUP). August complied and filed a request to allow a rural retail tourism/commercial outdoor recreation use.

Two entities provided recommendations on the CUP: Sunrise Township and Chisago County Planning Commission. Sunrise Township recommended denial of the CUP based on the excessive and disruptive noise. The County Planning Commission also recommended denial of the CUP based on comments at a public hearing that noise levels were high and consistent and a planning report which stated that, although the noise was below the allowed decibel limit, it was still clearly audible from neighboring properties.

The public hearing for the CUP was held on July 16, 2014. The County Board of Commissioners denied the permit based on that hearing and the recommendations provided by the Planning Commission. August appealed. At issue is whether the denial of the CUP was unreasonable, arbitrary, or capricious. The test to determine if a zoning board decision was sound is two-pronged: the reasons given for denial are legally sufficient and the reasons had a factual basis in the record.

The legal basis for denying the CUP was Section 4.15(D)(5) of the Chisago County Zoning Ordinance (CCO) regulating rural retail tourism. Pursuant to this section, a proposed rural retail tourism use will only be allowed if it “will not negatively impact the neighborhood by intrusion of noise, glare, odor, or other adverse effects.”

The Board established several facts in regards to the noise issue. The Board relied in part on neighbors’ testimony that there was a significant increase in noise and traffic on weekends when the mounted shooting events were held. The arena for these events was located within 500 feet of adjacent homes, and noise was heard by neighboring residents. Additionally, the planning commission members’ trip to the property confirmed the high levels of noise resulting from the gunfire.

August argued the Board cannot rely on neighbor’s testimony, however, the court relied on previous rulings that found that “a municipal entity may consider neighborhood opposition when it is based on something more concrete than non-specific neighborhood opposition.

August also argued that the CUP could only be denied if the noise levels exceeded decibel levels set by the Minnesota Pollution Control Agency (MCPA). The Court found that the county zoning ordinances were not in conflict with the MCPA standards because it regulates noise based on neighborhood intrusion, not decibel levels.

The County Board of Commissioners decided to deny the CUP based on sufficient legal and factual basis and was not unreasonable, arbitrary, or capricious. The Board’s decision is affirmed.

Assisted living facility properly determined to require an I-1 permit under IBC

by Hannah Dankbar

Hale v. City of Minot
North Dakota Supreme Court, August 25, 2015

Robert Hale began operating Somerset Court, an assisted living facility, in Minot, ND in the late 1990s. In September 2013 Hale applied for a building permit from the city to create a three-story, 70-room expansion of the facility. Under the International Building Code (IBC), which the City adopted in 2009 Hale applied for an I-1 permit which is for commercial/industrial uses. In December 2013 the City’s building official denied the application reporting that required documentation was not submitted. The question is whether the facility should be classified as an I-1 or R-2, a residential classification for apartments. An I-1 classification is required to submit more documentation and install more expensive wiring. Hale asserted he filed the application with an I-1 classification under protest so that foundation and other preliminary work could begin.  Hale appealed the denial to the Board of Appeals who upheld the City’s decision.

Hale argues that the City building official misinterpreted the IBC and was wrong to classify the Somerset expansion as an Institutional Group I-1 instead of a Residential Group R-2.

The IBC  provides what the “Group I-1” classification includes, stating in part:

This occupancy shall include buildings, structures or parts thereof housing more than 16 persons, on a 24-hour basis, who because of age, mental disability or other reasons, live in a supervised residential environment that provides personal care services. The occupants are capable of responding to an emergency situation without physical assistance from staff. This group shall include, but not be limited to, the following:

Alcohol and drug centers
Assisted living facilities
Congregate care facilities
Convalescent facilities
Group homes
Halfway houses
Residential board and care facilities
Social rehabilitation facilities  (Emphasis added.)

Hale argued that his facility is an “independent” residential facility, rather than a “supervised” residential facility. Hale also argues that residents at Somerset do not receive “personal care services.” Somerset does provide: distribution of medicine, meals at an in-house restaurant, a 24-hour emergency call system and a transportation system. Hale argues that these services do not meet the definition of an assisted living facility as defined under North Dakota law of IBC.

However, Somerset provides services and charges rent beyond a standard apartment complex. The building permit application described the addition to an existing “assisted living facility”. Hale markets Somerset to the community as an assisted living facility. Hale also accepted the foundation permit with an I-1 classification. For these reasons, the Board found it appropriate for an I-1 classification and their decision is upheld.

Hale also argued that the City building official misinterpreted the intent and application of state law concerning the “sufficiency” of the documents that Hale submitted. The state law Hale referenced governs the registration of architects and defines the exemptions of when registration is not needed to create an architectural plan, including for “rental apartment units that do not exceed three stories in height…”

The law allows for the city to determine which plans a registered architect must prepare. Hale had plans drawn by an unlicensed design professional, and then later looked over by a licensed professional. The licensed professional would not stamp the drawings because that is against state law. The city wanted Hale to resubmit drawings that were prepared by a licensed professional. Because I-1 is the correct classification for the building, Hale is required by the law to provide drawings by a licensed architect.

Scare gun ordinance validated; it is not zoning

by Hannah Dankbar

Town of Trempealeau v. Wendell P. Klein
Wisconsin Court of Appeals, August 18, 2015

Klein owns and operates a farm in Trempealeau, WI. He uses scare guns (a propane cannon) to prevent blackbirds from damaging his crops. In 2013 Trempealeau passed an ordinance requiring anybody wanting to use a scare gun within town limits to obtain a permit. The ordinance places three conditions on permits regarding times of day and months of the year that the guns can be used, distance from other residence of where the gun can be used, and that all guns must be pointed at least forty-five degrees away from neighboring property lines. The town board can exempt a permittee from these conditions after they receive a written explanation of why the conditions plan an undue hardship on the permittee. Klein applied for and received a permit.

On August 10, 2013 Klein was cited for operating a scare gun at less than forty-five degrees from the neighboring property line. Klein pled not guilty and moved to dismiss. He argued that the ordinance was invalid for a number of reasons.

Vested Right.  Klein argued that he had a vested right to use scare guns because he, and his father before him, had used scare guns as part of their farming operations before zoning was put into place.  The Court of Appeals noted that the scare gun ordinance did not meet the test set forth in previous court cases to qualify the ordinance as a zoning ordinance.

Taking. Klein argues that the ordinance acts as a taking of his property because his crops “will literally be taken from him”. He argues the taking is a regulatory taking which is “a restriction that deprives an owner ‘of all, or substantially all, of the beneficial use of his property.’” The Court disagreed.  The ordinance did not deprive Kline of all or substantially all of the beneficial use of his property.  Because Klein retains the ability to practice agriculture on his land, this argument fails.  Moreover, the ordinance does not prohibit the use of scare guns; it merely regulates their use.  There was no evidence that using the scare guns in a manner consistent with the ordinance would still result in a devastating loss of crops.

Trempealeau County’s comprehensive zoning ordinance.  Trempealeau County’s comprehensive zoning ordinance § 4.03 states, ““General agricultural practices shall be allowed in all agricultural districts without issuance of a land use permit[.]” Klein argued that this section unambiguously prohibits the Town from requiring him to obtain a permit; however, the scare gun permit is not a land use permit because it does not license a “use.” Trempealeau County’s comprehensive zoning ordinance §4.03(1)(c) lists “barnyards, feedlots, and uses involving agricultural structures” as examples of “general agricultural practices.” The description of structures and locations reinforces the conclusion that the use of scare guns does not constitute a general agricultural practice.

Right to Farm.  Klein argued that the statute is preempted by the state’s Right to Farm Law. This law protects agriculture enterprises from nuisance claims. Klein and the Town agreed that the Right to Farm Law protects both agricultural uses and practices. They also agree that the statute sets forth a heightened standard for determining that an agricultural use or practice is a nuisance. Nothing in the statute, however, prevents local governments from regulating agricultural uses and practices without a finding that those uses or practices meet the heightened nuisance standard.

The district court’s judgment in favor of Trempealeau was affirmed.

 

Provision in subdivision ordinance requiring neighbor approval held to be valid

by Andrea Vaage

Counceller v City of Columbus Plan Commission
Indiana Court of Appeals, August 19, 2015

John Counceller owned a 3.26 acre lot in Indian Hills Estates in Columbus, Indiana. He had previously submitted three applications between 1999 and 2013 to subdivide his lot into two lots, which he either withdrew or let expire upon approval. In 2014, Counceller submitted a fourth application to subdivide his lot into a total of three lots. After the Plat Committee granted primary approval to the request, Counceller’s neighbors submitted an appeal.

Section 16.24.225 of Columbus’s subdivision control ordinance requires approval of 75% of neighboring property owners for the further subdivision of a lot. Almost all of Counceller’s neighbors objected to the application. Due to this objection, the Commission decided to deny the application. Counceller claimed the City should be estopped from applying the 75% approval rule. The trial court denied this petition.

One of the elements that must be met in an estopppel case is that the petitioner had a lack of knowledge and of the means of knowledge as to the facts in question. Counceller argued that he was not informed of the 75% requirement by the City in any of his previous applications; however, Indiana caselaw is clear that “property owners are charged with knowledge of ordinances that affect their property.”  As a general rule, equitable estoppel will not be applied against governmental authorities in those cases where the party claiming to have been ignorant of the facts had access to the correct information.  The City did not withhold the means for Counceller to become aware of the ordinance.

Counceller admitted that no City officials implied that this regulation would not be applied to his application. Counceller instead argued that because this regulation was not enforced in the other three applications it should not be enforced in the fourth. However, none of his other applications made it to the point where this requirement might arise. Furthermore, the fourth application is different from the previous three in that the application proposes the property be subdivided into three lots instead of two.

Counceller also asserted the City, by adopting the 75% rule, improperly abdicated its responsibility to exercise exclusive control of the subdivision of land to Counceller’s neighbors. While it is true that similar provisions have been held to be a violation of due process, the Court of Appeals found that the 75% rule in the Columbus ordinance did not give unrestricted power to the neighbors. Section 16.24.225 allows for a waiver to be obtained if the Commission “finds that the proposed change will not have a significant impact on the existing subdivision.” Counceller never requested this waiver in his application, nor did he ever choose to request the waiver when given additional opportunities.

The Court found Counceller had the means to learn of the 75% requirement, and the opportunity to request a waiver. The judgment of the trial court is affirmed.

Subscribe

Archives

Categories

Tags

Admin Menu