Bloomberg writer Justin Fox recently posted an opinion piece on what has happened to housing in Minneapolis since December 2018, when the city council, through its Minneapolis 2040 plan, voted to allow duplexes or triplexes or reconfigure and expand existing houses to add one or two dwelling units by right on the roughly 70% of the city’s land where only detached single-family houses had been allowed. His analysis concluded that, at most 97 new units have been allowed because of this change. To place this in context, the city permitted 2,317 new housing units in the first half of 2022 alone. Almost all of the new housing in Minneapolis has been in structures of 5 or more units. Minneapolis was building at a similar pace before Minneapolis 2040 began to take effect — and the highest-profile element of the plan, the end of single-family zoning, is responsible for only about 1% of the new units permitted since January 2020.
Flag policy catches City of Boston flapping in the breeze
by Gary Taylor
Shurtleff v. City of Boston
United States Supreme Court, May 2, 2022
For years, Boston has allowed groups to hold ceremonies on the plaza in front of city hall, during which participants may hoist a flag of their choosing on a flagpole in place of the city’s own flag and fly it for the duration of the event, typically a couple of hours. Between 2005 and 2017 groups raised at least 50 different flags for 284 such ceremonies, including flags from other countries, flags honoring EMS workers, the Pride Flag and others.
Shurtleff, director of a Christian group, wanted to hold a ceremony to celebrate the civic and social contributions of the Christian community, and raise the “Christian flag”: a red cross on a blue field against a white background. Until Shurtleff’s application, the city had never denied a request to fly a flag. No written policies existed outlining what groups could or could not participate, or dictating the contents of the flag, and city employees did not ask to see the flag before the event. The application itself only asked for contact information and a brief description of the event.
City officials found no record of ever allowing a religious flag to be raised in the past. Because of concerns that flying the ”Christian flag” would violate the Establishment Clause of the First Amendment, officials told Shurtleff that his group could hold the event, but could not raise the flag. Shurtleff challenged the denial of the flag-raising in federal district court, contending that it violated is right to free expression under the First Amendment. The district court sided with Boston, and the First Circuit Court of Appeals agreed.
The United States Supreme Court did not. It observed that, generally speaking, flags’ contents, presence, and location have long conveyed governmental messages. The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In these situations a Court must conduct a “holistic inquiry” into whether the government intends to speak for itself or, rather, to regulate private expression. Among the factors to consider in this inquiry are the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression. As noted above, other than day, time and location, Boston exerted little control over the expression. The lack of meaningful involvement in the selection of flags or their messages means the flag-raising event is not “government speech,” and flying the flag for a short period of time does not constitute government promotion of a particular religion; therefore, the Establishment Clause of the First Amendment was not implicated. However, Boston’s refusal to let petitioner fly his flag did violate the Free Speech Clause of the First Amendment as it was ”impermissible viewpoint discrimination” that “abridged [Shurtleff’s] freedom of speech.”
Iowa Supreme Court backtracks on constitutionality of right-to-farm law
by Gary Taylor
Garrison v. New Fashion Pork, LLP
Iowa Supreme Court, June 30, 2022
Iowa Code 657.11 provides statutory immunity to animal agriculture producers against nuisance suits, commonly called Iowa’s “right-to-farm” law. Section 2 allows neighboring landowners to bring successful nuisance suits against such producers only if the producer fails to comply with state and federal regulations applicable to animal feeding operations, or if (1) the producer’s operation unreasonably and for substantial periods of time interferes with the person’s comfortable use and enjoyment of the persons life and property, and (2) the operation failed to use existing prudent generally accepted management practices reasonable for the operation. In 2004 in the case of Gacke v. Pork Xtra, Iowa Code 657.11 was ruled unconstitutional by the Iowa Supreme Court as applied to the facts of that case. Somewhat unusually, the Court did not base its ruling in Gacke on a Takings analysis, but rather on the Inalienable Rights clause of the Iowa Constitution (Article I, Section 1). It states:
All men and women are, by nature, free and equal, and have certain inalienable rights-among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.Iowa Constitution, Article I, Section 1
In 1972, Gordon Garrison purchased approximately 300 acres of farmland in Emmet County. He lives on the property in a home built in 1999. He at one point owned a 500-head ewe flock and could have over 1,000 animals on his property each birthing season. The sheep were kept in a barn most of the winter. After the 1980s, the size of his flock began to decrease. Some of his land continues to be farmed, but most of his acreage “is being cared for in restoration of the ‘Prairie Pothole’ ecology that was indigenous to northwest Iowa.”
In December 2015, New Fashion Pork (NFP) started operating a confined animal feeding operation (CAFO) uphill and adjacent to Garrison’s property. NFP’s subsidiary, BWT Holdings, owns additional land adjacent to Garrison’s property for disposal of manure. The confinement building is approximately a half-mile away from Garrison’s property line and is permitted to hold 4,400 to 8,800 hogs depending on their weight. The defendants put pattern tiling in the BWT property, which Garrison claims led to substantially more drainage flowing to his property. According to Garrison, in the fall of 2016, NFP’s “manure application was done when the field was saturated with water so the field could not absorb the manure and the manure discharged to [his] property.” In December 2018, NFP applied manure to frozen ground in violation of state regulations. The Iowa Department of Natural Resources entered a consent order under which the defendants paid an administrative penalty of $4,800 for that violation. From 2016 to 2020, Garrison documented the times that he smelled the CAFO’s odor – more than 100 days of the year, sometimes all day. The odor interferes with his enjoyment of working outdoors, going on walks around his property, and his sleep. His son confirmed the odor can be very pervasive depending on the wind direction.
The relevant portion of this lengthy opinion is the Supreme Court’s discussion, and ultimate overruling, of its own decision in Gacke. It began by noting that Gacke is an outlier. All fifty states have right-to-farm laws that provide farmers with various forms of statutory immunity from nuisance claims similar to section 657.11(2); however, Iowa is the only state to hold that the statutory immunity available under its right-to-farm law is unconstitutional in any manner. Gacke created a three-part test to determine whether a neighboring landowner could avoid the nuisance immunity protections offered by section 657.11(2): whether the plaintiffs can show they (1) received no particular benefit from the nuisance immunity granted to the agricultural operation other than that inuring to the public in general, (2) sustained significant hardship, and (3) resided on their property long before any animal operation was commenced. If the neighboring landowners were able to prove all three factors then they will have demonstrated that the law’s grant of immunity violated their inalienable rights granted by the Iowa Constitution.
After a review of caselaw from Iowa and other jurisdictions the current Iowa Supreme Court determined that the three-part test in Gacke was “created out of whole cloth,” engenders unnecessary litigation and is difficult to administer, and must be overruled. “Stare decisis does not prevent the court from reconsidering, repairing, correcting or abandoning past judicial announcements when error is manifest . . . and stare decisis has limited application in constitutional matters.”
Rather than apply the three-part test, the appropriate analysis under an inalienable rights claim is to determine whether there was a “rational basis” for the enactment of Section 657.11(2). The rational basis test is “highly deferential” to governments’ actions: the litigant challenging the local government action “must refute every reasonable basis upon which the statute could be found to be constitutional.” In the present case the Court determined that a rational basis exists for the legislature to promote farming, and that reducing nuisance liability is a proper means to that end.
Turning to the facts of this case, because Garrison relied solely on the constitutional argument at trial he presented no witnesses, expert or otherwise, to testify as to the prudence or general acceptance of any farm management practices, or to set a standard as to existing generally accepted management practices. He failed to identify any alternative technologies and approaches that would be considered “existing prudent generally accepted management practices.” Likewise, he identified no evidence that Defendants departed from any standard industry practices. He therefore failed to meet his burden of proving that he qualified for any of the exceptions to the nuisance immunity protection of 657.11.
US. Supreme Court upholds distinction between on- and off-premises signs
by Gary Taylor
City of Austin, TX v. Reagan National Advertising of Austin
United States Supreme Court, April 21, 2022
The city of Austin, Texas regulates off-premises signs differently than on-premises signs. At the time this dispute arose Austin’s sign code prohibited construction of new off-premises signs. Existing off-premises signs were grandfathered, but could not be altered in ways that increase their non-conformity. Reagan National Advertising (RNA) sought permits to digitize some of its billboards and was denied. RNA sued, claiming the differential treatment of off-premises signs from on-premises signs (on-premises signs were allowed to be digitized) violated the First Amendment. The District Court held that Austin’s code provisions were content neutral under Reed v. Town of Gilbert and therefore did not violate the First Amendment. The Fifth Circuit Court of Appeals found the distinction to be content-based because the sign’s message must be read to determine the distinction between on- and off-premises signs, and therefore did violate the First Amendment. Austin appealed to the U.S. Supreme Court.
The Supreme Court ruled that the on- versus off-premises distinction was facially content neutral and therefore did not violate the First Amendment. Reed held that a regulation of speech is content based if it “targets speech based on its communicative content”; that is, if it applies to particular speech because of the topic discussed or the idea or message expressed. The Fifth Circuit’s interpretation of Reed – that a sign regulation cannot be content neutral if you have to read the sign to understand how to regulate it – is “too extreme” an interpretation. Unlike Reed, Austin’s sign code does not single out any topic or idea expressed for differential treatment; the message matters only insofar as it informs the sign’s location. In this respect, the on- vs. off-premises distinction is more like ordinary time, place or manner restrictions, which do not require the application of the strict scrutiny standard. Furthermore, the Supreme Court has previously validated distinctions between on- and off-premises signs as being content neutral. Reed did not overrule those cases.
Justice Thomas authored a dissent joined by Justices Gorsuch and Barrett. He asserted that the Fifth Circuit correctly interpreted Reed. The Austin code discriminates against certain signs based on the message they convey. This is not changed because the restriction depends on a content neutral factor: the sign’s location. A code enforcement official must not only know where the sign is located, but also what it says.
Suppose a sign [in a storefront window] says “Go To Confession.” After examining the sign’s message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign conveys a permissible “on-premises” message. If not, the sign conveys an impermissible off-premises message.
Justice Thomas contends that the majority “misinterprets Reed’s clear rule for content-based restrictions and replaces it with an incoherent and malleable standard.”
Over seven years ago I took my administrative position in ISU Extension and Outreach. To lend some perspective, the last time I was able to regularly post to the BLUZ:
- The automatic transmission had just been invented
- My kids had just started high school. They are about to graduate from college.
- Saturday Night Fever was #1 at the box office
- Mozart had just composed Don Giovanni
- Nebraska was still relevant in football
I may not have all these dates exactly correct, but nonetheless I am now I’m back in the Community and Regional Planning department, once again teaching and providing outreach to communities in Iowa. I can’t cover 7+ years of lost cases, but I’ll start by grabbing some from the last few months that seem important.
Is anybody still out there reading this?