Author: Gary Taylor

Extension Specialist and Professor Community & Regional Planning College of Design Iowa State University Ames, IA 50010

Into the weeds of the National Trails System Act. (That rail trail you like to ride may have a long legal history)

Gary Taylor

by Gary Taylor

Memmer v. United States

United States Court of Appeals for the Federal Circuit, September 28, 2022

This case originated in the United States Court of Federal Claims (Why?  Read this) when Jeffrey Memmer and eleven other Indiana landowners (landowners) brought suit seeking compensation for an alleged taking arising from the application of the National Trails System Act (NTSA) to the abandonment of railway easements by Indiana Southwestern Railway Company.  Landowners claimed they held reversionary interests in the property which were “taken” under the NTSA.  It’s complicated.  Bear with me.

The Surface Transportation Board (STB) has authority to regulate the construction, operation, and abandonment of most rail lines in the United States.  A rail carrier must either file an application with, or seek exemption from, the STB if it intends to abandon or discontinue a rail line.  At the same time, the NTSA allows a rail carrier to instead negotiate an agreement with a locality or a private trail sponsor to convert the railroad’s right-of-way into a recreational trail.  If a rail carrier agrees to negotiate an agreement with a trail sponsor, the STB will issue a Notice of Interim Trail Use or Abandonment (NITU). The NITU provides for a negotiation period during which the railroad can discontinue service on the rail line and salvage track and materials.   If no agreement is reached with a locality or trail sponsor during the negotiation period the railroad may file a notice of consummation of abandonment with the STB, thus abandoning the line.  If an agreement is reached, however, trail use of the right-of-way is authorized and abandonment by the railroad is blocked indefinitely, subject to restoration of the right-of-way for railway purposes.  Because it is possible to again put the right-of-way to use as a railway, the NTSA process is known as “railbanking.”

Another possibility is that after an application for abandonment is filed with the STB another party may make an Offer of Financial Assistance (OFA) to subsidize the operation of the rail line to keep it open.  This could be a local government, for example, or an entity such as a grain elevator that makes consistent use of the line.  If an OFA is proffered those negotiations take precedence over any proposed or ongoing negotiations with a trail sponsor.

It is possible that the railbanking process and conversion of property to use as a recreational trail can result in a takings claim.  It depends on state property law of the state in which the line is situated.  A taking occurs when state law reversionary property interests that would otherwise vest in the adjacent landowners are blocked from so vesting by the NTSA.  In other words, state property law in some states is interpreted to automatically revert the right-of-way to adjacent landowners, while in other states no such reversionary right exists. 

In the present case, Indiana Southwestern submitted a notice of exemption from abandonment proceedings on October 25, 2010, stating that it would consummate abandonment of its rail lines on or after January 15, 2011. In response, the STB published a notice on November 12, 2010 stating that the deadline for railbanking requests was ten days later, on November 22, 2010, and that absent third party intervention, Indiana Southwestern could abandon the lines on December 14, 2010.  The notice indicated that Indiana Southwestern was given until November 12, 2011, to file a notice of consummation of abandonment, if it chose to do so.  A few days after the STB’s notice was published, the Indiana Trails Fund (Fund) submitted a request for the Board to issue a NITU for the rail corridor to permit negotiations with Indiana Southwestern about railbanking. The STB also received notice from the Town of Poseyville, Indiana of its intent to file an OFA, which took precedence over the Fund’s request.  After several months of negotiations with the Town, the Town’s offer fell through.  An NITU was then issued that became effective May 23, 2011, and the Fund and Indiana Southwestern proceeded to negotiate.  Ultimately they failed to execute a trail-use agreement, even after four extensions of the NITU.  The final NITU deadline lapsed on November 8, 2013; however, Indiana Southwestern chose not to consummate the abandonment of the rail line at that time. In the meantime while the NITU was pending, Indiana Southwestern executed a contract with A&K Materials (A&K) to purchase and remove the rails on the rail line except those in rail crossings and move the ties from the center of the rail line. A&K completed its work by early February of 2012.

 Indiana Southwestern did eventually submit a new notice of exemption to start the process over in 2021.  No potential trail sponsors came forward, and no NITU issued, so Indiana Southwestern consummated the abandonment of the line on August 31, 2021.  As a result, the landowners’ fee simple interests became unencumbered by any railway easements on that date. 

While all this was going on, litigation ensued (which presumably why you are still reading this post).  The landowners claimed that a permanent categorical taking occurred with the issuance of the first NITU, because the evidence was that Indiana Southwestern would have abandoned the line absent the NSTA-mandated NITU; that evidence being that no rail traffic had moved over the line for at least two years and that they hired A&K to remove the rails regardless of the outcome of negotiations.  The federal government countered by arguing that there was no government action resulting in a change to the landowners property interests “when a railroad requests abandonment authority (from the STB) and then chooses not to exercise that authority.” 

The Federal Circuit Court of Appeals disagreed with the government that a physical taking cannot occur when a NITU ends without either a trail-use agreement or the consummation of the railroad’s abandonment:

The NITU in this case, as in similar cases, was a government action that compelled continuation of an easement for a time; it did so intentionally and with specific identification of the land at issue; and it did so solely for the purpose of seeking to arrange, without the landowner’s consent, to continue the easement for still longer, indeed indefinitely, by an actual trail conversion….Thus, once initiated, a NITU can effect a “mandated continuation” of an easement by the STB that  provides a right of occupation by someone other than the landowner.

Memmer v. US, slip opinion p. 15

The Court then addressed the duration of the physical taking.  The Landowners argued that the temporary taking lasted from May 23, 2011 (the issuance of the first NITU) until August 31, 2021 (when the rail line was finally abandoned) because the requirements for abandonment under Indiana law were satisfied when the railroad removed the rails, yet their reversionary rights were still blocked until the railroad consummated the abandonment.  The government argued that the taking ended upon expiration of the NITU (and its extensions) on November 8, 2013 because it was on that date that the United States was no longer responsible for mandating the continuation of the easement.

The Court agreed with the government’s position because, from November 8, 2013 forward the decision rested solely in the hands of Indiana Southwestern.  “A takings claim must be predicated on actions undertaken by the United States….It is always the railroad’s choice that ultimately impacts the duration of the taking….Moreover, acceptance of [landowners’] argument would effectively contradict the STB’s authority to regulate abandonment which Congress granted over one hundred years ago.”

The Court remanded the case to the Court of Federal Claims for a determination of the compensation and interest due to the landowners as a result of the temporary taking of their property from May 23, 2011 to November 8, 2013. 

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Township drone photos used to support zoning code violation are admissible

Gary Taylor

by Gary Taylor

Long Lake Township v. Todd and Heather Maxon

Michigan Court of Appeals, September 15, 2022 (published opinion)

In 2007 Long Lake Township brought a zoning action against Todd Maxon arising from his storage of junked cars on his property. The case was settled in 2008 when Maxon agreed to maintain the status quo – no more junked cars on his property than existed at the time of the settlement.

In subsequent years the neighbors complained that the Maxons had expanded their junk yard, but this could not be confirmed from ground level because buildings and trees obstructed views of the property. The township hired Zero Gravity Ariel to take areal photos of the property with a drone in 2010, 2016, 2017, and 2018. The photos allegedly show that the number of junked cars had increased considerably since the settlement agreement, so the township filed an abatement action against the Maxons. Invoking the Fourth Amendment, the Maxons filed a motion to suppress the drone photos. The trial court denied the motion holding that the drone surveillance was not a “search” within the meaning of the Fourth Amendment. After more trips up and down the appellate ladder than are necessary to review here, the Michigan Supreme Court remanded the case to the Michigan Court of Appeals to consider the legal question of “whether the exclusionary rule applies to this dispute” considering no past precedent has extended the application of the exclusionary rule beyond criminal proceedings.

The Court of Appeals began by noting that the U.S. Supreme Court has repeatedly rejected the application of the exclusionary rule in civil cases, explaining that the purpose of the exclusionary rule is twofold: to deter police misconduct, and to provide a remedy where no other remedy is available. The Michigan Court of Appeals concluded after a thorough review of U.S. Supreme Court caselaw that the only application of the exclusionary rule to civil cases under the Fourth Amendment to the U.S. Constitution is in civil forfeiture actions “when the thing being forfeited as a result of criminal prosecution is worth more than the criminal fine that might be assessed.”

Turning to Michigan law the Court of Appeals notes that Article 1, Section 11 of the Michigan Constitution specifically constrains the application of the exclusionary rule, and Michigan courts have held that this provision provides “less search and seizure protections than required under the Fourth Amendment.” After a review of Michigan cases the Court of Appeals observed

Assuming that the drone search was illegal, it was performed by a private party. True, that
person acted at the behest of a township official. But the exclusionary rule is intended to deter
police misconduct, not that of lower-level bureaucrats who have little or no training in the Fourth
Amendment. There is no likelihood that exclusion of the drone evidence in this zoning infraction
matter will discourage the police from engaging in future misconduct, since the police were never
involved in the first place. Rather, exclusion of the drone evidence likely will deter a township-8-
employee who works in the zoning arena from ever again resorting to a drone to gather evidence
of a zoning violation. This is not the purpose of the exclusionary rule.

Long Lake Township v. Maxon, slip opinion p. 7.

The Court of Appeals concluded that “the exclusionary rule was not intended to operate in this arena” because the objective of the township was not to penalize the Maxons, but rather to abate a nuisance through the operation of equitable remedies.

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Township zoning ordinance does not (necessarily) conflict with state law granting veteran right to operate mobile hot dog stand

Gary Taylor

by Gary Taylor

Padecky v. Muskegon Charter Township

Michigan Court of Appeals, September 8, 2022

Padecky is an honorably discharged military veteran.  He holds a license to sell goods pursuant to Michigan law, MCL 35.441, which provides that “[a] veteran may sell his or her own goods within this state if the proceeds from the sale of the goods are to be used for his or her direct personal benefit or gain.”  He obtained permission from a grocery store located in a C-1 – Commercial district to operate his hot dog stand in the store’s parking lot.  The Township contended that mobile food businesses were only permitted in M-1 zoning districts, and then only then by way of a special use permit.  Padecky did not dispute the fact that the C-1 zoning district does not support mobile food stands.  Instead he argued that requiring him to obtain a special use permit which would still limit him to the M-1 district violated MCL 35.441.

Relying on a case it decided in 2000, and a subsequent Michigan Attorney General’s opinion, the Michigan Court of Appeals determined that MCL 35.441 should be read to permit Townships to comply with regulations addressing the place and manner in which veterans sell goods, but may not require them to obtain permits or otherwise pay for the privilege of selling goods.  The court therefore determined that the outcome of this case turned on “how the Township’s ordinance is construed.” It first noted that the Townships zoning ordinance requires an applicant for a special use permit to have “fee title or equitable interest in the subject property.”  Padecky observed that it would be a burden for him to have a landowner seek a special use permit on his behalf.  The Court agreed, but held that permission from a landowner would be sufficient “equitable interest” in the property to allow Padecky to apply for the permit himself, and that the Township could not charge Padecky a fee for seeking the permit. “The Township may use the special use permit process for the limited purpose of ensuring that plaintiff carries on his sale of goods in an appropriate location and manner, but no more.”  From the record reviewed by the court it was unclear whether any land in the Township was zoned M-1.  The court therefore remanded the case back to the trial court for further fact finding on whether M-zoned land existed.  In doing so the court stated that “it is the Township’s obligation to ensure the existence of some property that might be appropriate for a mobile food stand – if necessary by sua sponte rezoning some other zoned property [to M-1].”

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A path is not a street

Gary Taylor

by Gary Taylor and Luke Seaberg

Cornbelt Running Club v. City of Riverdale

Iowa Court of Appeals, March 2, 2022

The City of Riverdale fenced and gated a portion of a public right of way adjacent to South Kensington Street to prevent bicyclists and runners from using a five-foot-wide asphalt-paved path within the right of way as a short cut between two recreational trails.

In the above diagram, the path is the dark strip ending in a triangle and the fence is the line bisecting the dark strip.

Cornbelt Running Club (Club) sued the city, claiming the fence amounted to an improper closure of a street, thereby creating a public nuisance under Iowa Code 657.2(5), which states:

The following are nuisances:
….
5. The obstructing or encumbering by fences, buildings, or otherwise the public roads,
private ways, streets, alleys, commons, landing places, or burying grounds

Iowa Code 657.2

The city countered that a fence is only a nuisance if, in the context of this case, it crosses a street, and the path is not a street because it is not open to vehicles. Relying on its interpretation of state statutes defining “street,” “public roads,” and others the district court concluded that the path was not, in fact, a street, and therefore no nuisance could exist. The Club appealed.

The Court of Appeals determined the following statutory definitions were relevant to the case:

“Road” or “street” means the entire width between property lines through private property or the designated width through public property of every way or place of whatever nature if any part of such way or place is open to the use of the public, as a matter of right, for purposes of vehicular traffic.

Iowa Code 306.3(8)

“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway. “Vehicle” does not include:
a. Any device moved by human power, including a low-speed electric bicycle….

Iowa Code 321.1(90)

The Court of Appeals concluded that the district court was correct. Te paved path was not a street because it was not open to the public as a matter of right for vehicular traffic; therefore, the fence across the path could not be deemed a nuisance. The Club argued that previous cases found sidewalks to be part of a street, but the Court distinguished those cases as addressing sidewalks that ran alongside streets, which was not the case here.

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Sioux Falls, SD slaughterhouse proposal gives me an excuse to talk about zoning by initiative and referendum

Gary Taylor

In South Dakota, the people have a right to propose or refer legislation at the state and also local government levels through initiative (propose new legislation through direct public vote) and referendum (put a recent legislative action up for public vote to accept or reject).

Legislative power–Initiative and referendum. The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum….This section shall apply to municipalities….

South Dakota State Constitution, Article III, Section 1

Sioux Falls City Charter Section 6.03 expressly reserves the powers of initiative and referendum to the citizens.

In September of 2021, Wholestone Farms announced their intent to build a $500 million-plus pork processing plant on a 170-acre parcel of land in northeast Sioux Falls. Soon after the announcement, an opposition group emerged seeking to halt construction of the plant. Smart Growth Sioux Falls objected to building a slaughterhouse inside the city limits. The group gathered the required signatures to have the voters of Sioux Falls weigh in on whether the city should prohibit future slaughterhouses in Sioux Falls city limits. The question is on the November 8 ballot. If approved by the voters the following language would be added to the city’s code of ordinances:

Notwithstanding any other provision of this Code to the contrary, no new Slaughterhouse may be constructed, or be permitted to operate, within the city limits.

This section does not apply to any existing Slaughterhouse constructed and operating before the effective date of this section. This section does not apply to the expansion or alteration of any Slaughterhouse constructed and operating before the effective date of this section so long as such expansion or alteration occurs at the existing site.

Governor Noem has weighed in, saying that the ballot measure was bad for business and that “at the last minute one person(1) can get mad, do a ballot petition and end my business and my investment.” The Sioux Falls Chamber of Commerce also opposes the measure and states its reasoning here.

Iowa does not allow zoning questions to be put to the people through either initiative or referenda, but a number of other states do and this South Dakota situation gives me an excuse to visit the topic. Referenda are commonly used to call for voter review of legislative actions such a rezoning or a major change to the ordinance. Administrative or quasi-judicial actions – such as conditional uses, variances, and staff decisions – are not subject to referendum, although the line between legislative and administrative decisions is well-known to get messy.

Would we be better off in Iowa if “ballot box zoning” were possible? From a policy perspective the availability of initiative and referendum for zoning matters is controversial. Proponents support ballot box zoning as the most direct expression possible of residents’ wishes for how their communities should grow and thrive. Opponents are concerned that such measures undermine planning, block needed reforms such as increased residential density and fair housing, and violate the due process rights of property owners (see the Sioux Falls Chamber’s policy position).

Zoning initiative and referenda have been the subject of a wide variety of state court cases. They focus on the validity of the ballot box process when a state’s zoning statutes define a process for notice and hearing, when individual referenda appear to conflict with state mandates for fair housing, when referenda appear to conflict with state statutes and/or caselaw requiring consistency with a comprehensive plan, and other issues. The US Supreme Court has weighed in on federal constitutional questions related to zoning referenda twice. In City of Eastlake v. Forest City Enterprises (1976) the majority opinion supported zoning referenda as giving “citizens a voice on questions of public policy” when it dismissed the developer’s contention that the referendum violated due process as a standardless delegation of legislative power to voters. The Court’s majority stated that the Ohio Constitution contemplated a reservation of the power of referendum by the people, and was not a delegation of power to them. The dissent asserted that the “‘spot’ referendum technique appears to open disquieting opportunities…to bypass normal protective procedures for resolving issues affecting individual rights.”

In City of Cuyahoga Falls v. Buckeye Community Hope Foundation (2003) voters petitioned to place site plan approval for a low income housing complex on the ballot. At city council meetings and independent gatherings, some of which the mayor attended to express his personal opposition to the site plan, residents voiced concerns that the development would cause crime and drug activity to escalate, that families with children would move in, and that the complex would attract a population similar to the one on Prange Drive, the City’s only African-American neighborhood. Voters rejected the site plan at the ballot box, and the Court rejected the developer’s Equal Protection challenge to the results. The Court affirmed previous holdings that “[S]tatements made by private individuals in the course of a citizen-driven petition drive, while sometimes relevant to equal protection analysis…do not, in and of themselves, constitute state action for the purposes of the Fourteenth Amendment….[R]espondents put forth no evidence that the ‘private motives [that] triggered’ the referendum drive ‘can fairly be attributed to [city government].”

In fact, by adhering to charter procedures, city officials enabled public debate on the referendum to take place, thus advancing significant First Amendment interests. In assessing the referendum as a “basic instrument of democratic government,” …we have observed that provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.

City of Cuyahoga Falls v. Buckeye Community Hope Foundation, 538 U.S. 188, 196 (2003)

(1) Over 6,000 petition signatures were in fact required for the measure to appear on the November ballot.

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Intent must be “clear and unequivocal” to result in dedication of land to the public

Gary Taylor

by Gary Taylor

McNaughton v. Chartier and the City of Lawton
Iowa Supreme Court, June 24, 2022

In 1999 McNaughton entered into an easement agreement with the Chartiers to allow a small part of a road to pass through McNaughton’s property. The road was used to access the Chartiers’ business from Highway 20, and the dedication amounted to a 23’ x 80’ strip. The agreement provided that it was a “‘private’ easement granted for the use and benefit of the parties . . . and [was] not to be construed as an easement for the use and benefit of the general public.”

Shortly thereafter the city of Lawton paved and completed other improvements to the access road (now Char-Mac Drive). The paved portion covers 13’ x 60’ of the easement. During the early 2000s the city repeatedly asked McNaughton to dedicate the paved portion to the city but McNaughton refused. The reason he gave was that the city failed to maintain the paved portion of the easement. Language was included in the agreement between McNaughton and the Chartiers that the Chartiers “shall be obligated to take all action necessary to ensure that the town of Lawton becomes contractually obligated to maintain the easement area….” It is unclear whether this happened, but McNaughton testified that the city removed snow only a few times and generally failed to maintain the road.

When the Chartiers sold their property, they discovered that McNaughton had never recorded the easement agreement with the county. The Chartiers asked McNaughton to sign a Clarification of Easement essentially assigning the easement to the purchasers and offered him $15,000 but he refused, and thereafter made various escalating offers ($100,000, then $160,000, then $410,000, then in exchange for 50 acres of farmland) to the Chartiers to either sign the easement or sell his entire property. They refused. McNaughton sued, claiming purchaser had no rights under the easement because of failure to assign them.

The District Court found McNaughton had “dedicated the concrete portion of the easement to the City” because, among other things, the public had used the easement as the parties had agreed and because McNaughton had “never attempted to restrict the use of the concrete portion of the easement area.” Alternatively, the district court found that the easement was appurtenant to the Chartier’s property and passed to the purchaser upon sale. The Court of Appeals disagreed with both conclusions of the district court, as did the Supreme Court.

The Supreme Court observed that a grantor’s intent to dedicate land to the public for public use must be clear and unmistakable, and must be accomplished through “deliberate, unequivocal, and decisive acts and declarations of the owner, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use.” “Mere permissive use of a way, no matter how long continued, will not amount to a dedication.” The Court found that the language in the original agreement; that the easement was “not to be construed as an easement for the use and benefit of the general public” established just the contrary. Furthermore, language in the easement that “[t]he easement rights granted herein may not be assigned by Chartier to any other party or parties without the express written consent of McNaughton or his successors or assigns” served to negate the district court’s conclusion that the easement passed to the purchasers upon sale.

The specific language in an easement must be given effect. McNaughton wins.

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Was the end of single-family zoning in Minneapolis the “end the American way”? Bloomberg writer concludes “no”

Gary Taylor

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.

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Flag policy catches City of Boston flapping in the breeze

Gary Taylor

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.”

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Iowa Supreme Court backtracks on constitutionality of right-to-farm law

Gary Taylor

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.

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US. Supreme Court upholds distinction between on- and off-premises signs

Gary Taylor

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.”

First Amendment claims, Signs and billboards, United States Supreme Court , ,
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