Year: 2016

“Providing” fire services means creating and operating a fire district, not making a fire call

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by Hannah Dankbar

Town of Hoard v Clark County
Wisconsin Court of Appeals, November 12, 2015

The Town of Hoard is located in Clark County. The County operates a medical center within the town. The issue in this case is whether an ordinance that imposes an annual charge on property owners to cover the cost of fire protection is legal (Town of Hoard Ordinance No. 091113). In 2014 Hoard charged Clark County $3,327.68 for fire protection of the medical center. The County did not pay the charge. Hoard sued the County for not paying and was granted summary judgment. The County appealed.

Under the 2013 ordinance Hoard uses a formula to determine the annual charge for fire protection. The charge is based on the property’s use and square footage to calculate the “domestic user equivalent” (DUE). The medical center was assigned 1.5 DUE units per 1,000 square feet. Hoard divides its annual contribution to the fire district that they share with other communities by the number of DUE units to determine a dollar amount per DUE unit. This dollar amount determines the charge for each property owner.

Hoard argued that Wis. Stat. §60.55(2)(b) allows them to set “a fee on property owners in the Town for the cost of fire protection, as set according to a written schedule that was adopted by the town board.” The pre-1988 version of the statute allowed a town to charge for the cost of “fire calls made to the property”, but the new statute broadened the ability of a town to charge for fire protection to all properties who are protected.

The County argued: (1) the charge to the County under the ordinance is a tax, not a fee, which the County is exempt from under state law, or alternatively (2) if the charge is a fee, the ordinance is not valid under state law because the statute only allows fees for fire protection services that are actually provided. Because the medical center did not receive any services (i.e., no fire calls) they should not have to pay the fee.

There is a distinct difference between a fee and a tax. A tax is to gather revenue for the government. A fee is to cover the expense of providing a service, regulation or supervision. In this case, the charge is to cover the expense of providing fire protection, so it is a fee.

Regarding the second argument, the Court determined that “providing” fire protection services includes joining with other municipalities to create and operate the fire district.  The court determined that the medical center was “provided” fire protection from the Town.

The judgment of the lower court was affirmed.

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Three chickens do not constitute an agricultural use in a residential district

Gary Taylor

This post comes courtesy of Patricia Salkin and her Law of the Land blog.  I love chicken litigation…

 

Plaintiff, City of Sparta, a municipal corporation, brought an ordinance violation action against defendant, Tim Page, alleging that Page was conducting an unpermitted use in a residential district, contrary to the provisions of the local zoning ordinance. Defendant Page resides on a one and one-half acre tract of land within the city limits in an R–4 residential district as established by plaintiff’s zoning ordinance. He had been raising chickens for approximately four years on his property and considered his three chickens as pets, and did not use them for any commercial enterprise. The trial court found that raising pet chickens was not prohibited by the city code; because Page’s activities were not commercial in nature, they did not constitute agricultural use. Plaintiff appealed contending that the court’s decision was against the manifest weight of the evidence and contrary to law.

Here, the court found that the primary use of Page’s property was residential since Page and his wife lived in the house on the property as part of their normal everyday life. Moreover, normal incidental uses of residential homes and property include having pets. While other provisions of the zoning code specifically prohibited swine, cattle, horses, mules or game birds within residential neighborhoods, the court noted that a chicken was not a game bird. Because chickens were not specifically prohibited, and no commercial agricultural use pertaining to the chickens was established, Page’s owning of and keeping three pet chickens on his property was held to not constitute agricultural use as contemplated by the zoning code. Accordingly, the chickens were found to be an incidental permitted use of the property, and the holding of the trial court was affirmed.

City of Sparta v. Page
Illinois Court of Appeals, October 22, 2015

 

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MI conditional land transfer agreement improperly included contract zoning provisions

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by Gary Taylor and Hannah Dankbar

Teridee LLC and Koetje Trust v. Charter Township of Haring and Township of Clam Lake
Michigan Court of Appeals, December 8, 2015

Teridee LLC and the Koetje-Trusts own 140 acres of vacant land in Clam Lake Township. They intended to create a mixed-use development on the land. The land was zoned by Wexford County, but because the County could not provide public water and sewer systems the landowners petitioned for the land to be annexed by the City of Cadillac. Charter Township of Haring and Township of Clam Lake opposed this petition.

For the purpose of economic development projects, two local governments are permitted to transfer property for the purpose of economic development projects by written agreement through a Conditional Land Transfer Agreement (aka a 425 agreement (1984 PA 425, MCL 124.21 Act 425). In 2011 the Townships used a 425 agreement to conditionally transfer several properties to the City of Cadillac, which included all of the plaintiffs’ property. When a 425 agreement is in effect, annexation cannot occur (MCL124.29). The landowners brought an action before circuit court challenging the agreement, but it was dismissed because the State Boundary Commission (SBC) had jurisdiction. SBC determined that the 425 agreement was invalid because it was not executed for economic development purposes, but rather to block Cadillac’s annexation attempt.  For other reasons, the SBC also did not approve of the landowners’ annexation petition.

The Townships entered into a new Act 425 agreement and the landowners submitted a new annexation petition. The landowners also filed this action seeking relief on two counts. The landowners asked a trial court to (1) declare the Act 425 agreement invalid because it was not for economic development purposes; and (2) declare the Act 425 agreement void against public policy because it binds the current and future zoning boards of Haring Charter Township to rezone the transferred area to the rezoning requirements assigned in the agreement, which strips the body of legislative authority.

The first count was dismissed, because SBC had primary jurisdiction. The second count required, (1) the Townships to carry out the agreement in a way that did not divest the township of its legislative zoning authority, and (2) to answer whether the Townships could sever the allegedly invalid rezoning provisions of the agreement to make the balance of the agreement enforceable.

The court found that the agreement did strip Haring of their legislative authority and made the agreement void. The Townships appealed.

On appeal the court concluded that the plain language of the agreement strips Haring’s zoning authority over the undeveloped property by determining in the agreement how the property must be zoned. This is evident in the language of the concurring resolutions the Townships passed.

The Townships argued that Act 425 allows for contract zoning, and therefore the zoning requirements in the 425 agreement were authorized by statute.  This argument did not stand up in court. Act 425 permits a 425 agreement to contain language concerning “the adoption of ordinances and their enforcement by or with the assistance of the participating local units.”  This language is not sufficiently specific to permit an interpretation that would allow for contract zoning.

The lower court decision was affirmed.

Annexation, Contracts/Conditional Zoning, Michigan courts , ,
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Fine for zoning violation can only be imposed “upon conviction” in court

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by Hannah Dankbar and Gary Taylor

Claybanks Township v Paul and Tana Feorene
Michigan Court of Appeals, December 8, 2015

Paul and Tana Feorene own 40 acres of land in Claybanks Township. They built a greenhouse, gazebo and hay barn on their property without obtaining zoning permits according to the Claybanks Township Zoning Ordinance (CTZO). The Township sued the Feorenes and requested that the trial court order them to remove the structures, but the Township was ordered to issue the zoning permits at the standard fee for the three structures.

The Township argued that the trial court did not follow CTZO and Michigan Zoning Enabling Act (MZEA). CTZO §§ 203 and 207 require a zoning permit to be obtained before construction begins and that any construction before a permit is obtained is a nuisance and must be abated. There is no question that the Feorenes violated CTZO by building the structures without permits; therefore the issue becomes the abatement of the nuisance.  The abatement could be accomplished either by razing the buildings or issuing the permits, and courts have broad discretion in granting relief appropriate to the circumstances. Once the Feorenes were notified that they needed zoning permits for the structures they attempted to get them; however, the Township conditioned granting the permits on the payment of a $3,100 fine it had already imposed on the Feorenes for violating CTZO. The Feorenes refused to pay the fine and built the buildings anyway.

CTZO §208 imposes a $100 fine “upon conviction” of violation of the CTZO, and each day the violation continues shall be deemed a separate offense.  Applying the rules of statutory interpretation, the court concluded that because the Township had not brought an action in court there could be no “conviction.”  As a result, the $3,100 fine was inappropriate.

The Feorenes claimed that Michigan Right to Farm Act (RTFA) also provided an alternative basis to affirm the trial court’s conclusion. RTFA was enacted to protect farmers from nuisance lawsuits.  To assert an RTFA the Feorenes had to prove: (1) the challenged activity constitutes a “farm” or “farm operation”; and (2) the farm or farm operation conforms to the relevant generally accepted agricultural and management practices (GAAMPs). The Feorenes did not cite any relevant GAAMPs; and so the court rejected the RTFA argument.

The trial court ruling was affirmed.

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Registration now open for the Spring 2016 Intro to Planning and Zoning workshops

Gary Taylor

Registration is now open for the Spring 2016 Introduction to Planning and Zoning Workshops.  For more information and the link to online registration, click on the “Intro to Planning and Zoning Workshops” tab at the top left of this page.

Note that we have moved exclusively to an online registration system for the workshops. When you register you will have the option to pay by credit card, or to be invoiced via email.

The dates and locations are:

Monday, March 21 – Okoboji – Arrowwood Resort, 1405 Highway 71
Tuesday, March 22 – Clear Lake – Best Western Holiday Lodge, 2023 7th Ave North
Tuesday, April 5 – Decorah – Hotel Winneshiek, 104 East Water Street
Wednesday, April 6 – Cedar Rapids – Clarion Hotel & Convention Center, 525 33rd Ave. SW
Monday, April 11 – Sioux City – Bev’s on the River, 1110 Larsen Park Road
Tuesday, April 19 – Creston – Supertel Inn & Conference Center, 800 Laurel Street

The Introduction to Planning and Zoning for Local Officials workshop is a three-hour session 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 multiple 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.  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 $65 per individual.  This fee is reduced to $55 per individual if a city or county registers 5 or more officials to attend.  The fee covers the workshop instruction, workshop materials, and supper.

The workshop has been pre-approved by the Iowa Municipal Finance Officers Association and the Iowa League of Cities for credits toward certification.

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Montana landowners successfully claim reverse adverse possession of county road created by public prescriptive easement

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by Hannah Dankbar and Gary Taylor

Letica Land Company, LLC v Anaconda-Deer Lodge County
Montana Supreme Court, November 17, 2015

Letica Land Company (Letica) and Don McGee appeal a lower court’s ruling that two stretches of a road crossing their properties in Anaconda-Deer Lodge County are public roads.

Modesty Creek Road was established as a county road by the County Commission in 1889. The land across which the road traverses has been owned by the federal government, Anaconda Company, various private interests and most recently Letica and McGee who purchased the land in 1989 and 1997 respectively. Prior to Letica and McGee purchasing the land locked gates were placed on various places in the road that blocked public access, even though the public continued to access the road on a permissive basis. Because of these gates Letica and McGee claim that they were unaware of any public right of access of Modesty Creek Road.

In 2012 county residents asked the County Commission to reaffirm the road as a county road and reopen it to the public. The County Commission voted in approval and Letica filed a complaint. The complaint was denied and McGee joined as a plaintiff to amend the complaint.

The trial court concluded that Modesty Creek Road’s lower branch was a statutorily created road, and that Modesty Creek Road’s upper branch was established as a public road via public prescriptive easement, and that the prescriptive easement had not been terminated by “reverse adverse possession.” The court also found the takings question was not ripe until after an appeal. Letica and McGee appealed, challenging both the declaration of a statutorily created road and the declaration of a public prescriptive easement.

Letica and McGee first claimed that the record does not sufficiently demonstrate that the road was created by petition. They claim that Modesty Creek Road is on some county road maps, but not on others. The court found that this does not qualify as “affirmative steps to indicate intention to abandon” county roads once they are established, further these maps do nothing to provide evidence of the process of how these roads were approved. Letica and McGee also claimed that the lower branch must terminate at the eastern portion of Section 23, Township 6 North, Range 11 West. There is no definitive description in the record of where the road ends, but evidence when taken as a whole, such as testimony and other historical records are consistent enough for the court to conclude that the Dry Gulch is located along Section 22, Township 6 North, Range 11 West and that the lower court correctly took the record as a whole. The lower court’s decision regarding the statutorily created lower branch of the road were affirmed.

Letica and McGee argued that the actions of landowners to block public access throughout the years created in the landowners ownership by adverse possession.  The court emphasized that in Montana a “private individual may not obtain title to a public statutorily created road by a adverse possession.” Since it was established that the lower branch is a statutorily created road and therefore could not be claimed by adverse possession.  This still left open the question of whether reverse adverse possession extinguished the public prescriptive easement on the upper branch.

Locked gates blocked public access to the upper branch from 1980 to 2012. The public who used to use the upper branch found alternate routes and County staff said they would have cut the locks if they were made aware of the issue as they did this in other instances. The record shows that the public “cooperated and adhered” to the permissive use policy. Those who leased land or had water rights along the road had keys to the gates.

After declaring the upper branch a county road in 2012 the County found that the landowners asserted hostile rights for thirty years. However, the court found that the public abandoned this road and the County was aware of the gates and did not remedy the situation.  Montana statute provides that a prescriptive easement may be terminated “by disuse of the servitude by the owner of the servitude for the period prescribed for acquiring title by enjoyment.” The Court reversed the lower court’s ruling that the public prescriptive easement was not terminated by reverse adverse possession.

One justice dissented. Chief Justice McGrath concurred with the resolution of the first issue, and dissents the conclusion of the second issue. He would uphold the lower court’s decision and conclude that “this case would not exist but for the unlawful closure of the lower branch road….[A] person may not illegally block a road created by action of a public government entity, and then use that blockage as evidence to support a claim of reverse adverse possession that extinguishes the public’s prescriptive right to any other property or interest in property.”

Montana courts, Property law, public roads and highways , , ,
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SCOTUS accepts takings case from Wisconsin

Gary Taylor

Last Friday the United States Supreme Court agreed to take a case from Wisconsin that has implications for takings jurisprudence.  The case is Murr v. State of Wisconsin, and the question certified for the Court is “Whether in a regulatory takings case, the ‘parcel as a whole’ concept as described in Penn Central Transportation Company v City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes.”

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Diesel repair business met all criteria for conditional use permit in agricultural zone

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Hortian, et al., Relators vs Fischer and Wright County Planning Commission
Minnesota Court of Appeals, December 7, 2015

In 2006 the Wright County Planning Commission granted a CUP to Fischer to operate a diesel repair business as a home-extended business on property that is zoned General Agricultural (AG). Under this zoning classification home-extended businesses are allowed. The Hortians live on the neighboring property and complained about the business multiple times over multiple years. The Wright County Sheriff’s Department inspected the property and noted multiple violations. Fischer was told to file for an amended CUP, which he did. Fischer estimated that 40% of his business was agricultural and that his activities on the property still complied with the zoning classification. Realtors testified that Fischer’s business injured his neighbor’s properties. The Commission granted the amended CUP.

The Hortians appealed the Commission’s decision. On appeal, the Hortians must show that the Commission did not follow the standards for CUPs set forth in the zoning ordinance and that granting the CUP was an abuse of discretion.

The Hortians challenged the county’s interpretation of WCZO §741(3) which mandates that there should be “no outside storage of supplies, equipment or maintenance items; all work and work related items shall be kept in an enclosed structure.” They claim that customers’ cars parked outside of Fischer’s building waiting for repair qualify as “equipment” or “work-related items”.  The Commission instead determined that the cars were neither “equipment” nor “work-related items,” but were rather regulated by another part of the ordinance that only prohibits parking unlicensed or inoperative vehicles.  The Commission attached a specific condition to the amended CUP that “all vehicles and trailers on the property must have current registration and/or licensure unless otherwise exempt by law.” The court sided with the Commission. Considering these vehicles as “equipment” or “work-related items” is a narrow definition that would limit Fischer’s ability to work from home.

The Hortians claimed that the Commission made an error in granting the amended CUP because Fischer’s business is injurious to neighboring properties because of the additional wear on the roads, the high volume of sounds from the tools, and the bright lighting installed around the building. During a site visit the Commission found that none of these were true and that the operation complied with the ordinance.  The court did not dispute that finding, either.

The Hortians argued that Fischer’s business did not fit in an agriculturally zoned area. The Commission found that, while the business is industrial in nature, it serves an agricultural community and an agricultural purpose and therefore fit in the zoning classification.

The Commission did not err by granting the CUP.

Conditional Uses/Special Uses, Home occupations, Minnesota courts , ,
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City demonstrates negative secondary effects of adult entertainment establishment sufficient to overcome preliminary injunction

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by Hannah Dankbar

BBL, Inc. and Butler v. City of Angola
Federal 7th Circuit Court of Appeals, December 7, 2015

Alva and Sandra Butler own BBL, Inc. which bought a restaurant in Angola, Indiana with plans to convert it to an adult-entertainment venue. Immediately after the purchase the City of Angola amended its zoning ordinance to prohibit this use of the property. BBL, Inc. sued the City claiming a First Amendment violation and requesting a preliminary injunction be issued to prevent enforcement of the ordinance.

As part of the new ordinance Angola requires sexually oriented businesses to locate “at least 750 feet from every residence.” There is no debate that BBL does not meet this requirement.

In regards to the First Amendment claims BBL claimed; (1) the new licensing and zoning amendments violated its right to expressive conduct; and (2) the permit requirement was an impermissible prior restraint on speech.

Angola requested judgment on the applicable legal test (from City of Renton v. Playtime Theatres, Inc.) in two separate motions. The steps in this analysis require Angola to show: (1) the challenged  requirements are aimed at reducing the negative secondary effects of adult-entertainment establishments; (2) the requirements are narrowly tailored to serve to that purpose: and (3) the zoning scheme leaves open reasonable alternative sites for this form of expression.

At the preliminary injunction stage BBL reserved the right to later challenge the factual basis on which Angola adopted its ordinance (whether the city’s evidence of negative secondary effects was sufficient) but presented no such evidence at that time. Tactically this was a mistake because, the city provided an extensive (but boilerplate) catalog of secondary effects research.  By not challenging the city’s evidence at that time BBL “radically reduced its chances of obtaining a preliminary injunction.”  In fact BBL’s preliminary injunction was not granted by the trial court, and the 7th Circuit concurred.

Adult Entertainment Regulations, Federal courts, First Amendment claims , ,
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