City Council member’s removal from office violated his procedural due process protections

by Gary Taylor

Burke v. City Council of City of Lansing
Iowa Court of Appeals, February 22, 2017

Members of the Lansing City Council voted to remove city council member William Burke from office for claimed violations of our open meetings law (OML).  On one occasion the council issued an agenda for a closed session “to discuss strategy in matters that are presently in litigation or where litigation is imminent.”  After the agenda was issued, the city clerk requested an opinion from the Lansing city attorney as to whether the two topics she understood to be up for discussion actually qualified for closed session under the OML.  The city attorney opined that the topics did not, in fact, qualify for closed session.  The clerk forwarded the memo to the city council members, including Burke.  Burke notified the clerk that he disagreed with the clerk’s characterization of the purposes of the meeting as the clerk had reported them to the city attorney.  When the scheduled meeting was held the council voted 2-1 to go into closed session, with Burke being one of the two council members to vote in favor.  Later, the council held another special meeting on an unrelated matter.  Twenty-four-hour notice was not given.

Tensions between the council and residents resulted in an investigation by the Allamakee County attorney into the council’s actions.  The county attorney filed a petition alleging the two meetings violated the OML.  The attorney retained to represent the council and its members concluded the county attorney had “made some legitimate allegations,” and predicted fines, costs and attorney’s fees will likely be assessed against each council member.  The attorney set forth a potential settlement strategy she had discussed with the county attorney that would require Burke to resign from the council in exchange for dismissal of the lawsuit.  After a closed session of the council which Burke did not attend, the mayor petitioned the council to remove Burke from office for “willful misconduct and maladministration in office” in his handling of several matters relating to OML which resulted in litigation against the city and members of the council.  After a special meeting, the council voted 4-0 to remove Burke from office (Burke abstained from the vote).  Thereafter Burke challenged his removal in district court, raising several issues with the council’s proceedings.  The district court denied Burke’s petition, and Burke appealed.  The sole issue considered by the Court of Appeals was procedural due process.

Burke argued that the removal proceeding was fundamentally unfair because each member of the council who voted on his removal had a pecuniary conflict of interest in deciding his fate, and the “council itself generated the factual record necessary to sustain its decision, which perpetuates its conflict of interest.”  The Court of Appeals determined that Burke did not receive a “fair trial in a fair tribunal” as required by the Constitution.  The council members understood that they would eliminate their own financial exposure for possible violations of the OML if they removed Burke.  Furthermore, the council combined the prosecutorial function (by authorizing initiation of the removal process) with the adjudicative function (by presenting their own witness testimony to document their own personal knowledge of the grounds for removal).

Because the removal proceeding violated Burke’s right to procedural due process, the Court of Appeals sided with Burke and reversed the order of the district court.

 

 

Field of Dreams site cleared for development of baseball complex and tourist attraction

by Gary Taylor

Residential and Agricultural Advisory Committee, LLC et al. v. Dyersville City Council
Iowa Supreme Court, December 9, 2016

The Dyersville City Council voted to rezone the area containing the site of the 1989 movie Field of Dreams from A-1 Agricultural to C-2 Commercial in order to facilitate the development of a  a 24-field baseball and softball complex, along with the farmhouse and original baseball field used for the movie which would continue to be maintained as a tourist attraction. Community members filed two writs of certiorari to challenge the rezoning on a number of grounds.  The District Court annulled the writs and found in favor of the city council.  This appeal followed.  The Iowa Supreme Court engaged in a 20-page recitation of the facts of the case on its way to its 44-page decision.  Only those relevant to the outcome of each challenge will be repeated here.

Quasi-judicial vs. legislative action.  The petitioners argued that the city council’s actions were quasi-judicial in nature rather than legislative, and therefore the council should have been required to conduct a more formal fact-finding proceeding and make findings of fact in support of its decision.  Quasi-judicial proceedings are also subject to greater judicial scrutiny when reviewed by an appellate court.  Petitioners relied on the Iowa Supreme Court’s decision in Sutton v. Dubuque City Council in support of their position. In contrast, the city council maintained that the action of  a legislative body in rezoning land is legislative in nature, which gives the legislative body wider latitude in the conduct of the proceedings.  Courts also give greater deference to legislative decisions made by city councils and county boards of supervisors.

In ruling on this issue the Iowa Supreme Court reviewed Sutton and several other past cases.  It recognized that in its Sutton decision the Court set forth three factors in determining whether zoning activities are quasi-judicial (versus legislative) in nature (1) [when the rezoning] occurs in response to a citizen application followed by a statutorily mandated public hearing; (2) [when] as a result of such applications, readily identifiable proponents and opponents weigh in on the process; and (3) the decision is localized in its application affecting a particular group of citizens more acutely than the public at large.   Recognizing that the Court “cited these factors with approval” in Sutton, it noted that at the time it chose not to hold that all public zoning hearings should be classified as adjudicatory.  It stated:

The Sutton Case dealt with a different situation than many of our previous zoning cases because it involved PUD zoning.  We noted the ‘quasi-judicial character of municipal rezoning is particularly evident in matters involving PUD zoning.’  We discussed the distinction between traditional rezoning and PUD zoning:

Creating zoning districts and rezoning land are legislative actions, and…trial courts are not permitted to sit as ‘super zoning boards’ and overturn a board’s legislative efforts….The [PUD] concept varies from the traditional concept of zoning classifications.  It permits a flexible approach to the regulation of land uses. Compliance must be measured against certain stated standards….Since the board was called upon to review an interpretation and application of a n ordinance…and the ordinance was not challenged per se, the board’s decision was ‘clearly quasi-judicial’.

Rather than follow Sutton, the Court found the present case to be “much more analogous” to the case of Montgomery v. Bremer County Board of Supervisors.  In Montgomery, the county Board rezoned two parcels of land from agricultural to industrial after two rezoning petitions were filed.  In Montgomery, the Court found that the zoning decision of the supervisors was “an exercise of its delegated police power,” and held that “the generally limited scope of review applicable to the case [was] to determine whether the decision by the Board to rezone [was] fairly debatable.”   In making the analogy, the Court observed:

The city council [in the present case] was acting in a legislative function in furtherance of its delegated police powers.  The council was not sitting ‘to determine adjudicative facts to decide the legal rights, privileges or duties of a particular party based on that party’s particular circumstances.  The [decision] was not undertaken to weigh the legal rights of one party (the All-Star Ballpark Heaven) versus another party (the petitioners).  The council weighed all of the information, reports, and comments available to it in order to determine whether rezoning was in the best interest of the city as a whole.

The Court held that the proper standard of review “in this case is the generally limited scope of review” utilized to “determine whether the decision…is fairly debatable.”  A decision is “fairly debatable” when “reasonable minds may differ, or where the evidence provides a basis for a fair difference of opinion as to its application to a particular property.”  If a rezoning decision is “fairly debatable” then a court will decline to substitute its judgment for that of the city council or board of supervisors.

Impartiality of the city council.  The Court noted that, while it was true that several council members viewed the rezoning and the project as an opportunity for the city, each council member attended all meetings, read reports, listened to citizens speak for and against the project, asked questions, and investigated issues and concerns.  Nothing in the record demonstrated that any council member had any conflict of interest.  Several members participated in an economic development bus trip to Des Moines to discuss the project with legislators and state officials, but the Court found that mere participation in such activities for the potential benefit of the city does not establish partiality or bias. “Rather, this is more akin to the council members upholding their public duty by performing their due diligence in determining what state aid might be available to help with the project before any formal action was taken.  The council make its decision based on what it believed was best for the community after a full and open discussion of the issues over many months.”

Decision was arbitrary, capricious, unreasonable. A decision is arbitrary, capricious, or unreasonable when it is not authorized by statute, or is unsupported by the facts.  For the reasons cited above, the Court declined to find in favor of the petitioners on these grounds.

Inconsistent with comprehensive plan.  Under Iowa Code 414.3, zoning regulations “shall be made in accordance with a comprehensive plan.”  The Court referred to its prior decision in Iowa Coal Mining Co. v. Monroe County for the principle that “compliance with the comprehensive plan requirement merely means that the zoning authorities have given ‘full consideration the problem presented, including the needs of the public, changing conditions, and the similarity of other land in the same area.'”  The Court referred to the boilerplate language found in every plan that says rezonings should be made with consideration of the unique character of the area, the suitability of the land for the proposed use, the conservation of buildings or value, and the encouragement of the most appropriate use of the land.  It noted that the Field of Dreams site is a unique parcel of land, and that the council considered the distinctiveness of the land and whether the proposed rezoning would be the best use of the site for the benefit of the community as a whole.  The city’s community builder plan also specifically addresses the importance of preserving the site in order to maintain and increase tourism.

Illegal spot zoning. To determine whether illegal spot zoning has occurred, a court must consider (1) whether the new zoning is germane to an object within the police power; (2) whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property; and (3) whether the rezoning is consistent with the comprehensive plan.  Noting again the uniqueness of the Field of Dreams site, the Court refused to find this to be a case of illegal spot zoning even though the result is an island of commercial development surrounded by agriculturally zoned properties.

200-foot buffer zone.  Under Iowa Code 414.5, if 20% or more of the landowners immediately adjacent to the property proposed to be rezoned protest the change, then the city council must approve the rezoning by a four-fifths vote.  The rezoning applicants left out of the rezoning request a 200-foot buffer zone along the three sides of the perimeter of the property  (leaving it as A-1 Agricultural).  The petitioners challenged the use of this 200-foot buffer as a way to prevent nearby property owners from objecting to the project and thereby triggering the requirement of a unanimous vote.  While the Court acknowledged that “at first blush the buffer zone can appear to be unfair,” the Court concluded that the buffer in fact provides a benefit to adjacent landowners by addressing their expressed concerns about hunting and farming operations directly adjacent to the ballfields.  The Court also noted that other courts have validated the use of buffer zones to avoid supermajority requirements.  Regardless, even if the 200-foot buffer was improper, the rezoning was adopted by 4-1 vote of the city council.

Incorrect legal description.  While the notice of the original ordinance (Ordinance 770) contained errors in the legal description, the council corrected the legal description in the ordinance that ultimately rezoned the property (Ordinance 777).  No new notices were published, however, for Ordinance 777.  The Court does not require complete accuracy when providing notice.  Neither Iowa Code nor the city ordinances require the publication of a complete legal description.  The purpose of the notice requirement is to give the public reasonable notice of the pending action.  The public was well aware of the ongoing proceedings, and no one was confused or misled by the inaccuracy of the legal description.

Equal Protection.  Petitioners argued that all neighboring landowners were similarly situated, yet the 3-sided 200-foot buffer prevented those neighbors along the buffer from exercising the same right to object as the neighbors along the side of the property without the buffer.  The Court found that the council’s decision met the rational basis test required by the Equal Protection clause in this case.  The buffers, as described above, served a legitimate purpose of protecting the neighboring properties on the three sides.

Due Process.  Petitioners and the public in general were given adequate notice.  Further, they were heard in multiple public hearings.  All community members wishing to speak were allowed to do so.

Based on all preceding points, the Iowa Supreme Court affirmed the rezoning of the Field of Dreams property.

Agland preservation district statutes not relevant to rezoning application. No conflicts of interest found, either

by Gary Taylor

Miller v. Grundy County Board of Supervisors and MidAmerican Energy
Iowa Court of Appeals, April 22, 2015

In August 2013 MidAmerican Energy requested to rezone approximately 1,200 acres in Grundy County, Iowa from A-1 Agricultural to A-2 Agricultural.  MidAmerican had “Wind Farm Option Agreements” on the acres to be rezoned, and A-2 zoning would allow MidAmerican to place larger wind turbines on the land than those that would be permitted by A-1.  The Grundy County Planning and Zoning Commission voted 6-1 to recommend denial of the request at its September 2013 meeting; however, the Grundy County Board of Supervisors went against this recommendation and voted 4-0 to approve the rezoning at its meeting later the same month (one supervisor recused himself due to a conflict of interest).   Susan Miller, a nearby landowner, appealed the decision to district court, where the appeal was dismissed.  Miller then appealed to the Iowa Court of Appeals.

Miller’s first issue on appeal was that the Board of Supervisors acted illegally because it failed to comply with the requirements of Iowa Code 352.6, which requires supervisors to make specific findings before permitting non-agricultural uses in an “agricultural area.”   Chapter 352 authorizes the creation of agricultural preservation districts.  It does not address county zoning as enabled through Chapter 335 of the Iowa Code.  The Court of Appeals summarily stated that Chapter 352 is inapplicable in this case because “there is no evidence in the record that the Grundy County Board of Supervisors has ever designated any of the land involved in the zoning amendment as an ‘agricultural area'” as it is meant in Chapter 352.  “Nor, for that matter, is there any evidence in the record that any owner of any of that land has ever consented to the owner’s land being included in an area designated as an ‘agricultural area.'”  Simply zoning land as A-1 Agricultural does not of itself create or expand an “agricultural area” as defined in Chapter 352.

Miller’s second issue was that two of the supervisors who voted for the rezoning had conflicts of interest that required their recusal.  Citing Bluffs Development Co. v. Pottawattamie County Board of Adjustment the court noted that proof of a conflict of interest must be “direct, definite, capable of demonstration, not remote, uncertain, contingent, unsubstantial, or merely speculative or theoretical.”  One of the supervisors called out by Miller owns the AmericInn motel, which offers discounted rates to wind energy officials who stay there.  The court found that Miller was unable to offer evidence that any discounts received by wind energy officials were different than discounts available to anyone else staying there.  Without that evidence, or other evidence that the supervisor’s vote was significantly influenced by a pecuniary interest Miller’s claim failed as to the first supervisor.

The second supervisor has multiple relatives that own lands subject to “Wind Farm Option Agreements” with MidAmerican Energy; however, none of those lands were the subject of the 2013 rezoning request, and so the court concluded that any advantages to the supervisor or his relatives were “uncertain, speculative, and remote.”

The Court of Appeals affirmed the district court’s dismissal of Miller’s claims.

Attorneys cannot represent city, then property owners, in suit concerning quarry truck traffic

by Gary Taylor

Zerger & Mauer, LLP v. City of Greenwood
(Federal 8th Circuit Court of Appeals, May 30, 2014)

From 2006 to 2010 the city of Greenwood, Missouri and Martin Marietta Minerals were in a dispute over a rock quarry south of the city.  The dispute concerned truck traffic traveling in interstate commerce through Greenwood.  eventually, the parties entered into an agreement in which Martin paid Greenwood $7 million, and Greenwood agreed to designate Second Avenue for the truck traffic.  In the agreement, Greenwood declared that the truck traffic did not constitute a nuisance.  Greenwood had obtained a prior judgement in the case against Martin for $12 million; therefore, Greenwood was essentially making a $5 million concession so that it could designate the truck traffic route it deemed most beneficial.  Zerger and Mauer represented Greenwood throughout the dispute, receiving over $4 million in legal fees.

Subsequently in 2011, eighteen individuals who owned property along Second Avenue filed sued against Martin and others, seeking damages for a private nuisance among other claims.  Zerger and Mauer served as counsel for these plaintiffs.  Prior to the trial court’s resolution of the merits of the case, Greenwood – a non-party to the proceedings – moved to disqualify Zerger and Mauer from representing the property owners, arguing that the firm’s current representation constituted a conflict of interest.  In Greenwood’s view, Zerger and Mauer were advancing arguments that directly conflicted with Greenwood’s interests from the prior litigation.  The district court agreed and disqualified the law firm, which appealed to the Eighth Circuit Court of Appeals.  After settling a jurisdictional claim, the Court of Appeals examined the conflict of interest claim.

Missouri Rules of Professional Conduct for the legal profession outline the duties an attorney owes former clients:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

On the question of whether the city’s prior litigation with Martin was “substantially related” to the property owner’s suit, the court looked first to the commentary accompanying the above-cited rule of conduct. The commentary explains that matters are substantially related “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”  The court found it clear that the factual underpinnings of the two representations were nearly identical.  “Similarly, the legal issues central to both are substantially related, largely centering on the reasonableness of Martin’s conduct.  Although a private nuisance claim and a public nuisance claim may protect distinct rights, the legal theories are exceedingly intertwined.”  Given these conditions, the court found a “substantial probability – or at the very least a substantial appearance – that Greenwood disclosed confidential information related to the negotiations that the plaintiffs could use to their advantage.

Zerger and Mauer next asserted that their representation of the property owners was not “materially adverse” to Greenwood’s interests.  The firm argued that the declaration in the first settlement that the truck traffic is reasonable and not a nuisance involved a public nuisance and has no bearing on the property owners’ private nuisance claim.  The court rejected this, being “unpersuaded by Zerger and Mauer’s continued attempt to make public and private nuisances unrelated concepts….”  The court stated that the firm is advocating a position that contradicts a term in Greenwood’s settlement.  It is seeking to collect damages on behalf of the property owners “for Martin’s allegedly tortious use of Second Avenue – a path that Greenwood desires to reserve as the exclusive route for truck traffic.  Not only do [the property owners] have an interest in collecting substantial damages, they also naturally have an interest in otherwise disrupting Martin’s use of Second Avenue.”  The property owners’ overall interests are materially adverse to Greenwood’s interests, and as such Greenwood may demand that its former law firm not advocate for the property owners’ interests.  The Court of Appeals thus affirmed the district court’s disqualification of Zerger and Mauer from the second litigation.

 

Investigations by zoning board member outside the hearing process did not give rise to due process violation

by Kaitlin Heinen and Gary Taylor

Timothy Hutchinson v. Wayne Township Board of Zoning Appeals
(Ohio Court of Appeals, 12th Appellate District, September 10, 2012)

Tim Hutchinson filed an application for a conditional use permit from Wayne Township Board of Zoning Appeals (BZA) to operate a Halloween-themed nature walk on part of Jana Hutchinson’s farm, which was zoned A-1, agricultural district. The BZA held a hearing for Tim Hutchinson’s application in July of 2008. At this hearing, it was found that the nature walk would be open 6-8 weekends per year during the Halloween season from 5pm-midnight. Traffic would come from Wayne-Madison Road using two unpaved roads, while parking would be provided in nearby open fields. The BZA  found that Wayne-Madison Road is a narrow, two-lane, dead-end road with no lighting and with narrow berms that steeply slope into drainage ditches, although Hutchinson presented expert testimony from a traffic engineer that Wayne-Madison Road would be able to handle the additional traffic. The BZA also heard complaints from residents in the area, which addressed safety issues arising from the use of Wayne-Madison Road by drivers who are inexperienced with gravel roads as well as the peace and the security of the residents in area that may be affected by the increased traffic. The BZA adjourned the hearing in progress, expressing concern that Tim Hutchinson was not a proper applicant since he was only a tenant on the property and not the landowner. Jana Hutchinson was then joined on the application for a conditional use permit, and when the hearing resumed she provided additional information to BZA about security, traffic, road maintenance, and insurance for the nature walk.

In December of 2008, the hearing was reconvened. Tim Hutchinson testified that he estimated 500 cars would be expected at the nature walk each evening. However, BZA member Carleen Yeager stated that she had researched attendance at other Halloween-themed events and, to the contrary, 500 cars would be a “light night” and that nearly 1500 cars would be expected on a “good night.” Tim Hutchinson countered that the nature walk was new and that he was “starting off small.” At the end of the hearing, BZA member Jerry Gerber moved to deny the Hutchinsons’ application.  The vote was unanimous against the application. The Hutchinsons appealed the BZA’s oral denial of the application to the Butler County Court of Common Pleas and the case was remanded to the BZA for the issuance of a written decision.

In March of 2010, the BZA issued its written decision, which found that the Hutchinsons’ nature walk would be inconsistent and incompatible with the current uses of the surrounding area and would adversely affect the general welfare of neighboring residents in the area. The Hutchinsons’ appealed. In January of 2012, the common pleas court issued its decision that affirmed the BZA’s denial of the Hutchinsons’ application for a conditional use permit.

The issue before the Ohio Court of Appeals in this decision then is that “the common pleas court erred to the prejudice of the [appellants] by affirming the BZA’s decision.” The Hutchinsons claimed that the trial court erred in its affirmation of the BZA’s decision, even though the appellants had satisfied all requirements of the zoning resolution, and that the trial court erred in finding that their due process rights were not violated by BZA member Yeager’s outside investigation.

In regards to the Hutchinsons’ first claim, the township’s zoning code requires that conditional uses must meet several criteria, such as not adversely affecting the health, safety, comfort and general welfare of the surrounding area by threats of traffic hazards, noise disturbances, night lighting, fire hazards, etc. (Section 25.053). However, citing prior case law the court stated that satisfaction of these requirements does not make approval automatic, and that the township zoning code also requires the BZA to “give due regard to the nature and condition of all adjacent uses and structures” surrounding the proposed conditional use. After reviewing the record, the court found that the Hutchinsons did not satisfy all the requirements in the code. Despite the Hutchinsons’ presentation of an expert witness, the BZA had reason to find that the increased traffic would be incompatible with the surrounding area. Thus the trial court did not err in their decision to affirm the BZA’s denial on this count.

As for the due process violation alleged, “[t]he essence of due process dictates, at the very least, that an individual have an opportunity to be heard and to defend, enforce and protect his rights before an administrative body in an orderly proceeding.” Here, Yeager admitted to making “some calls” inquiring into the reasonable number of cars to be expected for a Halloween-themed event. The Hutchinsons argued that her statement negatively affected their ability to have a fair hearing, since they were not able to cross-examine Yeager’s informants as well as Yeager herself, at the risk of losing her vote. Again citing previous caselaw, the court stated that “[t]he combination of investigative, executive and adjudicative functions does not necessarily create a risk of bias or unfairness in an administrative adjudication.” The court noted that the BZA’s decision stated, in part, that it was denying appellants’ application because the Nature Walk “would significantly increase traffic flow, according to applicant’s testimony, by hundreds of cars each evening.” From this statement, according to the court, “it is clear that the BZA did not rely on Yeager’s view that as many as 1,500 cars would be traveling Wayne-Madison Road, but only that 500 cars would be on the road, as indicated by Tim Hutchinson.”

Further, the court noted that the BZA unanimously denied appellants’ application. Thus, even if Yeager’s statements demonstrated her own bias and prejudice toward the Nature Walk, the exclusion of her vote would not have altered the result.   No due process rights were violated.

The judgment of the trial court was affirmed, maintaining the denial of the Hutchinsons’ application for a conditional use permit to operate a Halloween-themed nature walk.

Competing bid submitted by council member, but withdrawn before vote, does not give rise to conflict of interest

by Victoria Heldt

Eldon Bugg v. City of Boonville
(Missouri Court of Appeals, April 24, 2012)

In July 2010, the City of Boonville city council held a regular meeting at which the agenda included voting on Bill 2010-015.  This bill was to approve the Kemper Village Homes Project plan site and its developer agreements.  The council held a discussion about the project where fourteen members of the community (including Bugg) spoke in opposition to it and four members spoke in favor of it.  Councilman Hombs addressed the rumors of his conflict of interest, stating that he had previously submitted a bid for the development of the project, but that he had since withdrawn the bid and no longer had any financial interest in it.  After discussion, the council voted on the matter and was evenly split with four members voting to approve and four members voting to deny.  The mayor was called to break the tie and voted in favor of the project.  The bill was signed and Boonville City Ordinance 4216 was enacted.  Bugg filed suit in trial court arguing that the mayor was not allowed to break the tie and that Councilman Hombs did have a conflict of interest.  The trial court disagreed and ruled in favor of the City.  Bugg appealed.

Bugg first argued the ordinance’s invalidity on the grounds that the bill did not receive a majority vote from the city council.  Missouri statute §77.080 provides that no ordinance shall be passed except by a bill that receives a majority vote from the council.  Missouri statute §77.250 provides that, in the event of a tie vote, the mayor is required to cast the deciding vote so long as he/she does not have a conflict of interest.  Both parties acknowledged the existence of these two statutes, but each had a different interpretation.  Bugg argued that a tie-breaking vote is only necessary when the voting process fails to result in a decision.  He reasoned that a tie equated to a failure to pass, which is, in itself, a decision.  He therefore asserted that no additional vote was necessary.  He based his argument on the ruling in Merriam v. Chicago, Rock Island & Pacific Railway Co., in which a similar tie-breaking situation took place.  In Merriam, the Court ultimately decided that the president of the council (who cast the deciding vote) was not allowed to vote since he was not technically a member of the council.

The Court rejected this argument, noting that Merriam was decided over 100 years ago and has not been cited since.  In addition, it is inconsistent with rulings that have since been decided that pertain to the statute.  The Court also noted that the rules governing such voting processes were different during the time Merriam was decided.  The Court concluded that statute § 77.250 makes the mayor a temporary member of the council for the purpose of breaking ties.  In this case, the Mayor was acting within her duty to break the tie.  Therefore, the bill was validly passed by the council.

Bugg’s second argument was that Councilman Hombs still had a conflict of interest in the matter regardless of the fact that he withdrew his bid for development of the project before the vote.  The language of the council code reads that “every member who shall be present when a question is stated by the chair shall vote thereupon, unless excused by the council, or unless he is prohibited by section 2-108 of this Code, in which case he shall not vote.”  Section 2-108 of the code contains language restricting a council member with a conflict of interest from voting.  Bugg argued that Homb’s submission of a bid created an irreversible conflict of interest and that he should be precluded from voting on the matter.  The Court disagreed, noting the code requires all council members to be free from a conflict of interest “when the question is stated by the chair.”  In this case, Hombs did not have a conflict of interest when the matter was subjected to a vote.  Bugg next argued that Hombs failed to comply with the Code when he did not “file a written report of the nature of the interest.”  The Court concluded that, since no conflict of interest existed at the time of the vote, Hombs was not required to file any such report detailing a then non-existent conflict of interest.  The Court affirmed the trial court’s decision in favor of the City of Boonville.  Ordinance 4216 was upheld.

Conditional use permit criteria not vague; recusal of board member negates claim of bias

by Victoria Heldt

Gage Inc., LLP v. Village of Sister Bay
(Wisconsin Court of Appeals, July 6, 2011)

Gage Inc., LLP wanted to develop a three-story condominium/hotel in downtown Sister Bay.  The district in which they planned to build was zoned “B-3 Downtown Business District” and was adjacent to property owned by the Village president, Denise Bhirdo.  Gage planned to set aside 34 of the units as residential condominiums and utilize the rest of the units as hotel rooms.  While the B-3 district zoning regulations allowed buildings to be used as hotels, a condominium/hotel would require a conditional use permit.  The Village Plan commission recommended denying the permit after several public hearings.  Subsequently, the Village Board voted to deny the conditional use permit.  Gage appealed to the district court, which affirmed the Board’s decision.

Gage first argued that the Village’s conditional use provision in the zoning ordinance was unconstitutionally vague because it failed to describe what factors will influence whether a permit is issued or not issued.  The Court noted that the zoning code defines conditional uses as “uses of a special nature as to make impractical their predetermination as a permitted use in a district…which are designed to cover situations where a particular use, although not inherently inconsistent with the use classification of a particular zoning district, may create special problems and hazards if allowed to develop and locate as a matter of right in a particular zoning district.”  The zoning ordinance also describes the intent of the B-3 Downtown Business District which is to “offer greater flexibility in area requirements and setback requirements than other districts in order to promote the reuse of buildings and lots and the construction of new developments…consistent with the existing scale of development.”  The zoning provision also states that “conditional uses will be reviewed to see if they are in accordance with the purpose and intent of the chapter and is found to be not hazardous, harmful, offensive or otherwise adverse to the environment or the value of the neighborhood or the Village.”  The Court concluded that the conditional use ordinance, in tandem with the B-3 district statement of intent, was sufficiently definite.  The Court noted that general  criteria or standards for conditional uses have previously been accepted by the Court, and that allowing the Board to exercise its discretion is indeed appropriate.  “[For example] an ordinance regulating site development need not be created with a particular degree of specificity other than is necessary to give developers reasonable notice of the areas of inquiry that will be examined in approving or disapproving the development.”  For these reasons, the Court concluded that the conditional use ordinance was sufficiently definite.

Gage also claimed that the Board’s decision was arbitrary and without sufficient evidence.  He argued that the very same building he was proposing would be acceptable if all of the rooms were used as hotel rooms, so the only relevant issue is the intended use of 34 of the rooms.  Therefore, he reasoned that the entire project could not be denied based only one aspect of the project.  The Court noted that Gage cited no authority for this argument and disregarded it.  In any case, the Court ruled that the Board based its decision on protecting the intent of the downtown district.  It was meant to remain a primarily commercial area and to encourage business for the surrounding restaurants and shops.  Residential condominiums have a lower turn-over rate and house residents who are more likely to eat in and not do as much business in the downtown area.  In addition, condominium owners in a vacation area such Sister Bay usually reside more permanently elsewhere, so the condominiums could sit vacant for a good portion of the year.  Therefore, the Court reasoned that the Board correctly based its decision on protecting the welfare of the surrounding area.

Gage also contended that there was a high risk of bias in the decision since Denise Bhirdo (adjacent property owner) sat on both the Village Plan Commission and on the Village Board.  Gage claimed he negotiated with Bhirdo prior to his request for a permit regarding the project and agreed to purchase her property.  He testified that, after his plans changed and he did not need her property, she opposed the plan and influenced the Board.  The Court ruled that there was no impermissible risk of bias since Bhirdo excused herself from all public hearings of both the Planning Commission and the Village Board and did not case any votes regarding the case.

The Court affirmed the district court’s ruling in favor of the Village.

US Supreme Court says ethics laws do not violate First Amendment speech rights

by Gary Taylor

Nevada Commission on Ethics v Carrigan
(United States Supreme Court, June 13, 2011)

The Nevada Commission on Ethics administers and enforces Nevada’s Ethics in Government Law, Nev. Rev. Stat. §281A.420(2), which requires public officials to recuse themselves from voting on, or advocating the passage or failure of, “a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by…his commitment in a private capacity to the interests of others,” which includes a “commitment to a [specified] person,” such as a member of the officer’s household or the officer’s relative, or “any other commitment or relationship that is substantially similar.”

In 2005 the Commission investigated Michael Carrigan, an elected member of the Sparks, Nevada city council, who voted to approve a hotel/casino project proposed by a company that used Carrigan’s long-time friend and campaign manager as a paid consultant. The Commission concluded that Carrigan had a disqualifying conflict of interest under the “any other commitment or relationship that is substantially similar” catchall provision of the Ethics in Government Law.  The Commission censured him for failing to abstain from voting on the project, but did not impose a fine on him because the violation was not willful (the Sparks city attorney had advised Carrigan that disclosing the relationship with his campaign manager would satisfy his obligation under the law). Carrigan sought judicial review, arguing that the Nevada law violated the First Amendment. The State District Court denied the petition, but the Nevada Supreme Court reversed, holding that voting is protected speech, and that the law’s catchall definition was unconstitutionally overbroad.

The United States Supreme Court disagreed with the Nevada Supreme Court. The Court found restrictions on legislators’ voting are not restrictions on legislators’ protected speech. A legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. He casts his vote “as trustee for his constituents, not as a prerogative of personal power.” Moreover, voting is not a symbolic action, and the fact that it is the product of a deeply held or highly unpopular personal belief does not transform it into First Amendment speech. Even if the mere vote itself could express depth of belief (which it cannot), the Court noted that in previous cases it had rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message.

The Court found support for its decision in “early congressional enactments,” which offer “contemporaneous and weighty evidence of the Constitution’s meaning.” Within 15 years of the founding, both the United States House and the Senate adopted recusal rules. Federal conflict-of-interest rules applicable to judges also date back to the founding. “[A] ‘universal and long-established’ tradition of prohibiting certain conduct creates ‘a strong presumption’ that the prohibition is constitutional.” The notion that Nevada’s recusal rules violate legislators’ First Amendment rights is also inconsistent with long-standing traditions in the States, most of which have some type of recusal law.

The Court also found that laws that prohibit a legislator who has a conflict from advocating its passage or failure are also valid. If it is constitutional to exclude an elected official from voting, then his exclusion from advocating during a legislative session is similarly constitutional.  Such speech limitations are reasonable time, place, and manner limitations.

The U.S. Supreme Court reversed and remanded the case.

County attorney serving multiple roles in condemnation case creates impermissible likelihood of bias

by Melanie Thwing

Davenport v. Morris County Board of County Commissioners
(Kansas Supreme Court, September 10, 2010)

In February of 2000, the Morris County Board of County Commissioners in Kansas decided to vacate 2 roads. Davenport Pastures, LP filed a written application for damages because these roads accessed a ranch they leased. Without a hearing the Assistant County Attorney drafted a letter on the Boards behalf, rejecting the application. The matter was brought before the district court, which awarded Davenport $30,000.

The County Board appealed and the Court of Appeals remanded the case back to the County Board for further proceedings. After the remand the Assistant County Attorney pressed the Board to have a hearing, and on separate occasions took two commissioners to view the roads. At the attorney’s recommendation appraiser David Sundgren was hired. A hearing was held and the attorney acted as legal council for the Board, and cross-examined Davenport Pastures’ experts as well as Sundgren, who appraised damages of $4,050. The Assistant County Attorney also ultimately wrote the final decision of the Board.

Arguing that the Assistant County Attorney’s multiple roles violated due process, Davenport Pastures appealed. Neither the district court nor the Court of Appeals found sufficient evidence that his dual roles, “actually affected the Commission’s decision.”

Before the Kansas Supreme Court, Davenport Pastures argued that the multiple roles played by the attorney deprived them of their Fourteen Amendment right to due process. The Court cites Powers v. State Department of Social Welfare where the Department appointed its own attorney to preside over a “fair hearing,” and where the lawyer later represented the Department in the appeal. The Court in Powers found the double roles, “highly improper,” and a clear conflict of interest.”  Further, in Coats v. U.S.D. a similar situation occurred where a school’s selection board choose one of its own attorneys to serve on a hearing committee. The Court in Coats found, “[T]he school board’s appointment of its own attorney to the hearing committee violated the rule of fundamental fairness… Such a blatant defiance of due process cannot be countenanced…”

The Kansas Supreme Court concluded that having the Assistant County Attorney represent the Board on almost all matters in this proceeding caused a risk of bias that is too high to be constitutional. He first played a role of legal advisor, second as the sole advocate for the Board, and third as an adjudicator because he had advised the Board to hire Sundgren, brought the commissioners to see the road, and drafted the decision. The Court observed that “…due process is violated when, under all the circumstances of the case, the ‘probable risk of actual bias [is] too high to be constitutionally tolerable.” The case was remanded back to the Board County Commissioners for reconsideration.

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