An update: The Maxons have filed an appeal in the Michigan Supreme Court seeking to overturn this decision. The Institute for Justice is backing the Maxons. The IJ attorney states that “Americans have a right to be secure in their homes and backyards without being watched by a government drone.” The Michigan Court of Appeals decided that even if the drone flights violated the Maxons’ Fourth Amendment rights, the government should still be allowed to use the evidence obtained from the unconstitutional search in court because the Fourth Amendment’s protection applies to criminal prosecutions and does not apply to civil code enforcement proceedings.
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.
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.
by Eric Christianson
The Johnson County Board of Supervisors voted 5-0 Thursday, September 14, 2017 to deny the rezoning of 63 acres from Agricultural to Agricultural Residential. The board’s primary reasoning was the potential impact of such a large rezoning in a rural part of the county and the impossibility of negotiating a conditional rezoning without approval of the current title-holder. The board encouraged another application after the applicant obtains full ownership of the property.
The original post is below:
An Iowa City resident’s attempt to rezone 63 acres of rural Johnson County has attracted international attention. Grant Schultz manages a 143 acre farm he calls Versaland in northeastern Johnson County. He is seeking the zoning change to allow him to build rental cabins and worker housing in addition to other accessory uses. Staff recommended against the rezoning because of the potential impact of a large land use change in a rural part of the county and the infrastructural improvements that would be needed to support the potential new uses. On August 14 the planning and zoning commission voted 5-0 to recommend to the board of supervisors that the rezoning be denied.
In response on September 8, Schultz created a 25 minute video with the headline “Johnson County Assaults Local Foods“. The video has, as of today, been viewed over 80,000 times and received comments of support from all over the world.
Johnson County has since published a memo refuting many of the points made in the video.
Additionally, Paul Durrenberger and Suzan Erem, founders of the Sustainable Iowa Land Trust, and owners of the property in question have published a blog post of their own entitled, “Grant Schultz: Facts to Consider”. They are opposed to the proposed rezoning.
The Johnson County Board of Supervisors will vote on the rezoning request Thursday September 14, 2017.
For more information read the Press Citizen article about the fight.
By Eric Christianson
House File 134 was signed into law on April 21 by Gov. Branstad limiting the ability of cities to set occupancy restrictions based on familial relationships. This law has appeared several times in various forms over the past few years in the Iowa legislature. It was opposed by many larger cities along with the Iowa League of Cities. It was supported by the Iowa ACLU as well as the Landlords of Iowa.
The bill amends Iowa Code 414.1 subsection 1, adding the bolded text:
a. For the purpose of promoting the health, safety, morals, or the general welfare of the community or for the purpose of preserving historically significant areas of the community, any city is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.
b. A city shall not, after January 1, 2018, adopt or enforce any regulation or restriction related to the occupancy of residential rental property that is based upon the existence of familial or non familial relationships between the occupants of such rental property.
This change will mostly impact college towns which were actively trying to limit the number of students moving into historically single-family neighborhoods.
You can find a copy of the bill as well as its history here.
Dunn County will ask the North Dakota Supreme Court to uphold its authority to apply zoning to oil and gas development.
The county decided to appeal a district court judge’s decision that the North Dakota Industrial Commission (NDIC) has sole jurisdiction over an oil waste treatment facility in the county.
The dispute started in 2013, when Environmental Driven Solutions sued the county for denying zoning for storage tanks on property adjacent to the treatment facility. EDS said state law gives NDIC authority that preempts local zoning. In this case, the NDIC had issued a permit for the treatment plant. The district court agreed, saying that state law gives the commission control over drilling, all operations for oil and gas production, and, since 2013, the disposal of saltwater and oilfield wastes.
The North Dakota Attorney General filed in support of EDS’s case.
The American Civil Liberties Union of Nebraska announced Tuesday that it sent a letter to the City of Lexington, urging the City to grant the Islamic Center of Lexington’s request for a conditional use zoning permit. The Center applied for the permit in 2015 so they could expand in their location at 401 N. Grant, but the Lexington City Council denied the request, stating that the expansion would harm the development of that area of downtown, as well as expressing concerns over parking. The Center, which has occupied a portion of the building in question for several years, actually expanded into the contested area in March 2015 without making a conditional use request.
The full story from the Lexington Exchange is here.
The Wisconsin Assembly voted Tuesday, 62-35, to approve a bill that would allow Dane County towns to opt out of county zoning. Under current law, cities and villages control zoning development, while most towns share authority with the county, which has veto power.
Members of the Dane County Towns Association pushed for the changes, arguing they will offer more local autonomy to grow tax bases. But county, city and village officials lobbied heavily against it, arguing it would fragment decision-making and could erode the current balance of farmland and development in the county.
As written, the bill would only apply to Dane County.
The full story from the Capital Times is here.
A follow up to a story posted here in November: A Dakota County District Court Judge has ordered Castle Rock Township to issue a conditional use permit for an Islamic cemetery.
Agstar Financial Services submitted an application to the township in March 2014 for a proposed Islamic cemetery and funeral home on property it owned. In June 2014, Castle Rock Township’s planning commission recommended the approval of the application without the plan to build a funeral home on the property; however, the Castle Rock Township board rejected the application in August 2014, expressing concerns of potential loss of a “lot of tax base” and that the property “would not be open to the public for burials.”
When Al Maghfirah Cemetery Association closed on the sale of the property with Agstar, it submitted its own conditional use permit to the township on Nov. 17, 2014, and agreed not to build a funeral home on the property, but three days later, the board of Castle Rock Township denied Al Maghfirah Cemetery Association’s application.
The Dakota County District Court Judge wrote that he wrote that Al Maghfirah Cemetery Association “is entitled to free use of its property, subject to reasonable zoning restrictions….That right was denied to them by the arbitrary decision of the Castle Rock Township Board of Supervisors, which was later framed as a concern over the loss of tax base.”
The full Minnesota Public Radio article is here
A man in Marquette has been living in a mobile home on his property while constructing a brand new house on the same property. But it’s illegal, according to city ordinance, to have a mobile home on that property, because it isn’t properly zoned for it. After refusing to issue a variance, the city was taken to court, where a magistrate judge ruled the city must issue the variance.
Although the Mayor received legal advice that the city would most likely win if they appealed the decision, Marquette’s City Council voted 3-1 to not pursue any more legal action. That didn’t sit will with the Mayor, a City Council Member or a member of the city’s board of adjustment, all of whom resigned last week.
Full story here courtesy of KWWL.com