Category: Federal courts

Church entitled to restore prayer trail because denial likely to be proven to be a substantial burden on religious exercise under RLUIPA

Gary Taylor

by Gary Taylor

Catholic Healthcare International v. Genoa Charter Township (MI)

Federal 6th Circuit Court of Appeals, September 11, 2023

Catholic Healthcare International wanted to create a prayer trail with 14 “Stations of the Cross” on a wooded 40-acre property it owns in Genoa Charter Township. No part of the prayer trail would be visible from outside the property. A few miles away, in Fillmore County Park, the Township had created a 15-station reading trail of its own, with large signs telling the tale of “Leopold the Lion.” The Township considered the prayer trail to be a church building, for which the following special use permit application items would be required:

  • Completed Special Land Use Application.
  • Completed Site Plan Review Application.
  • $2,875.00 Special Land Use/Site Application Fee.
  • Four (4) Sets of Site Plans (folded) that comply with the applicable
    requirements found in the Site Plan Review Application.
  • Four (4) copies of an Environmental Impact Assessment.

At considerable expense, Catholic Healthcare submitted two unsuccessful applications. Catholic Healthcare moved forward anyway, creating the prayer trail as designed. The Township demanded the removal of the Stations of the Cross, plus a stone altar and mural. Catholic Healthcare did not comply with that demand; instead, given the Township’s insistence on treating the prayer trail as a church, plaintiffs decided to expedite their longer-term plan to seek approval for an actual church building. The Township Planning Commission approved the plan for a 95-seat, 6,090 square foot church with associated parking lot, lighting and outdoor accessory structures, but the Township Board denied the request and renewed its demand that the prayer trail be removed.

The rest of the facts are unclear even to the Court of Appeals. The salient point is that at some point a group of church volunteers physically removed all the religious displays from the prayer trail, and at some later point Catholic Healthcare sought a preliminary injunction to restore the Stations of the Cross, altar, and mural, claiming that, as applied to them, the Township’s zoning ordinance violated the federal Constitution, the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the Michigan Constitution. The district court twice denied that request, holding that its free-exercise and statutory claims are unripe.

The Sixth Circuit reversed, stating that in land-use cases, claims are “ripe” when the government has adopted a “definitive position” as to “how the regulations at issue apply to the particular land in question.” Here, the Township has uniformly insisted that Catholic Healthcare obtain a special land-use permit and has twice refused to grant a permit. Those events have “inflicted an actual, concrete injury” because the Township has actually forced them to remove the religious displays. Catholic Healthcare showed that it can likely prove that the Township has imposed a “substantial burden” on its religious exercise, and that the Township failed to use the “least restrictive means of furthering a compelling interest” as required by RLUIPA. Because Catholic Healthcare is likely to succeed on the merits of its claim under RLUIPA, the preliminary injunction requested by Catholic Healthcare should be granted.

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Rural water district could not prove ability to provide or make available water service in disputed area

Gary Taylor

by Gary Taylor

Washington County Water Co., v. City of Sparta, Illinois

Federal 7th Circuit Court of Appeals, August 8, 2023

The Agriculture Act of 1961 authorized the United States Department of Agriculture (USDA) to provide loans to rural water associations to decrease the cost and ensure an adequate supply of safe water for farmers and other rural residents. To ensure that these associations could repay their loans, Congress enacted 7 U.S.C. § 1926(b), which prohibits municipalities and others from selling water in an area that a USDA-indebted rural water association has “provided or made available” its service. To be entitled to protection under § 1926(b), the rural water association must have the physical capability to provide service to the disputed area and a legal right to do so under state law.

Washington County Water Company (WCWC) is a rural water association that sells potable water to several counties in southern Illinois. The Village of Coulterville is adjacent to these counties. In 2019, due to the deteriorating state of its water treatment facility, Coulterville explored the possibility of buying water from either WCWC or the City of Sparta. Coulterville ultimately decided to buy water from Sparta because it was not convinced that WCWC could provide enough water to satisfy its residents’ demands. When WCWC learned of this decision, it filed a complaint in federal district court alleging that § 1926(b) prohibited Sparta from selling water to Coulterville because WCWC had “made its service available” to Coulterville. The district court granted summary judgment in favor of Sparta, holding that WCWC was not entitled to § 1926(b) protection because WCWC did not have a legal entitlement to provide water to Coulterville under Illinois state law. WCWC appealed to the Seventh Circuit.

Because the Seventh Circuit had not explicitly addressed the question of how to determine when an association has “provided or made available” service to a certain area, it looked to other federal circuits’ opinions. Every other circuit has adopted some variation of the “physical capability” test: a two-pronged test that asks (1) whether the association had “water pipes either within or adjacent to the disputed area before the allegedly encroaching association begins providing service to customers in the disputed area,” and (2) whether the association has the “legal right under state law to provide water to the disputed area. In this case the Seventh Circuit focused on the “legal right under state law” question. The Illinois Environmental Protection Agency (IEPA) – the state agency regulating water service – mandates that a water service provider’s system “must be designed to produce at least 20 percent greater than [its] maximum average daily demand ….” in order to establish a right to provide service to a given area. The district court calculated WCWC’s maximum average daily demand to be 1,608,297 gallons per day. After adding the required 20 percent reserve WCWC needed to be “designed to produce” at least 1,929,956 gallons per day, and the district court concluded WCWC could not meet this standard.

The case eventually turned on the meaning of “designed to produce” under Illinois administrative regulations. The Seventh Circuit concluded that “designed to produce” must refer to the water association’s ability to furnish sufficient water to residents, whether it treats its own water or purchases it from others. For WCWC, this meant that the Court looked at its pumping capacity as limited by its contractual capacity, “after all, WCWC cannot pump what it cannot buy.” To interpret “designed to produce” as referring only to pumping capacity, a water association would be entitled to § 1926(b) protection even if they cannot purchase sufficient water to pump through those systems to meet demand. After reviewing the parties’ disagreements about WCWC’s pumping and contractual capacities, the Court concluded that WCWC could not meet the “20 percent greater than [its] maximum average daily demand” requirement. In doing so the Court dismissed WCWC’s contention that it could buy more water from its contractual suppliers within a reasonable time because WCWC provided no tangible evidence of this during discovery.

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Plaintiff cannot establish Section 1983 claim for erroneous application of solid waste ordinance

Gary Taylor

by Gary Taylor

Kiefer v. Isanti County, Minnesota

Federal 8th Circuit Court of Appeals, June 29, 2023

Kieth Kiefer moved onto a 53-acre parcel in Isanti County in 1992, and purchased the property in 1996. Shortly after moving onto the property he began to use approximately one acre to store scrap and other unwanted items, including “unlicensed vehicles, piles of scrap metal, tin, old furniture, old building material….” and many other items of junk. After receiving a citizen complaint, the County sent Kiefer several letters notifying him that his use of the property violated local law. Kiefer did not respond. Eventually, on November 19, 2008 the County cited Kiefer with a zoning code violation. Then, on December 22, 2008 the County filed a two-count criminal complaint charging Kiefer with (1) violating the county zoning code, and (2) violating the county solid waste ordinance. The county eventually dropped the zoning violation charge and proceeded to trial on the violation of the solid waste ordinance. A jury convicted Kiefer, and he was sentenced to 90 days in jail, 60 of which he served.

In March 2011, the County filed a civil action in Minnesota state court alleging that Kiefer was again violating the County’s zoning and solid waste ordinances. Kiefer responded, this time asserting the County had misinterpreted and misapplied the law. Following a bench trial, the state district court ruled in favor of the County. The Minnesota Court of Appeals reversed, concluding that the solid waste ordinance only applies to commercial or industrial operations. The Court of Appeals recognized that Kiefer’s current use of the property was not permitted under the zoning code but remanded for a determination on whether Kiefer’s use was a permissible preexisting nonconforming use, as the property was zoned as agricultural at the time of his purchase in 1996. On remand, the Minnesota district court found Kiefer in violation of the zoning code. The Minnesota Court of Appeals affirmed.

On July 31, 2018, Kiefer petitioned in state court for postconviction relief, seeking to vacate his criminal conviction after the Court of Appeals found the solid waste ordinance inapplicable. On October 8, 2018, Kiefer’s petition was granted. His conviction was vacated, and the clerk was ordered to refund the fine, court costs, and court fees imposed and paid by Kiefer. Two years later, Kiefer filed this federal lawsuit under 42 U.S.C. § 1983, claiming unlawful seizure and violations of his due process rights, along with state law claims for false imprisonment, malicious prosecution, and abuse of process. The district court dismissed the case after determining Kiefer failed to sufficiently plead the County had violated his rights. Kiefer appealed.

A plaintiff may establish municipal liability under 42 U.S.C. § 1983 if the violation resulted from (1) an official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise. Kiefer raised claims related to official policy and unofficial custom.

Official policy. The Sixth Circuit dispatched with Kiefer’s “official policy” claim because he only argued that the solid waste ordinance was the official policy of the county for the first time on appeal, and further that the county prosecutor was the official with policymaking authority when in fact it is the County Board of Supervisors.

Unofficial custom. To demonstrate the County violated his rights through an “unofficial custom,” Kiefer must show: “(1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity’s policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the governmental entity’s custom, i.e., that the custom was a moving force behind the constitutional violation. Kiefer asserted that the County used the solid waste ordinance to allege criminal violations against individual the county knew the statute did not apply to. The Sixth Circuit found the claim to be nothing more than “threadbare recitals” supported by “mere conclusory statements” and not enough to raise a right to relief. Even if Kiefer sufficiently alleged a “continuing, widespread, persistent pattern,” the complain did not allege the County was in some manner deliberately indifferent after notice of a possible violation. Even after it was established that Kiefer should not have been prosecuted under the solid waste ordinance “the doctrine of substantive due process is reserved for truly extraordinary and egregious case; it does not forbid reasonable, though possibly erroneous, legal interpretation.” Without a constitutional violation, there can be no § 1983 liability.

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The duty to provide “reasonable accommodations” under the Fair Housing Act Amendments does not extended to alleviating downstream economic effects of a handicap.

Gary Taylor

by Gary Taylor

Klossner v. IADU Table Mound MHP, LLC and Impact MHC Management, LLC

Federal 8th Circuit Court of Appeals, April 10, 2023

Suellen Klossner has lived in a mobile-home park in Dubuque, Iowa, since 2009. The park is owned by IADU Table Mound MHP, LLC, which is controlled by Impact MHC Management, LLC (Impact). Tenants in the park pay rent for a lot where they can situate a mobile home. Klossner receives income from government programs that she used to pay her rent for ten years. She is unable to work full-time due to psychiatric and physical disabilities.

In 2019, the City of Dubuque approved a measure allowing the local public housing authority to provide residents of mobile-home parks with housing choice vouchers that could be used to supplement their rent payments. Under this voucher program, the federal government provides funds to local public housing agencies, which in turn may distribute them to low-income tenants. As the rent on Klossner’s lot increased, she received a voucher and sought to use it to supplement her rent payments, but the companies declined to accept the voucher. Federal law does not require landlords to accept housing choice vouchers, and Impact declines to do so except (1) where state law requires acceptance, or (2) where the company has purchased property where a prior owner accepted vouchers from a holdover tenant—a total of approximately forty tenants out of more than twenty thousand under Impact’s management. Impact cited the administrative burdens of accepting vouchers.

The FHAA makes it unlawful to discriminate in housing or make unavailable a dwelling “because of a handicap of [a] buyer or renter.” “Handicap” is a “physical or mental impairment which substantially limits one or more of such person’s major life activities.” “Major life activities” means “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” The statute prohibits “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.” Klossner sued Impact and IADU Table Mound, alleging that the companies violated the Fair Housing Amendments Act by refusing to accept her voucher. Her theory was that she is a person with a “handicap” under the FHAA, and that the law required the companies to accept the housing voucher as a “reasonable accommodation” that was “necessary” to afford her “equal opportunity to use and enjoy a dwelling.”

The companies argued that although the FHAA calls for reasonable accommodations that directly ameliorate the effect of a handicap, the statute does not require a landlord to accommodate a tenant’s economic circumstances by accepting housing vouchers, and cited similar cases from the Federal 2nd and 7th Circuits in support of their defense. In the 2nd Circuit case the court reasoned that “the duty to make reasonable accommodations is framed by the nature of the particular handicap,” for example, providing a preferred parking space for tenants with difficulty walking, or lifting a no-pets rule to allow the use of a service dog by a blind person. The court concluded, however, that economic discrimination “… is practiced without regard to handicap,” and that the accommodation sought was not “necessary” to afford handicapped persons an “equal opportunity” to use and enjoy a dwelling. The court emphasized that the FHAA “does not elevate the rights of the handicapped poor over the non-handicapped poor,” and that “economic discrimination” is “not cognizable as a failure to make a reasonable accommodation” under the FHAA. In the 7th Circuit case a developer of a community designed for tenants using wheelchairs asked a municipality to grant a zoning variance to allow the construction of more structures on a plot of land, arguing that the proposed variance was necessary as a “reasonable accommodation” under the FHAA because it would reduce the cost of each housing unit, and thereby alleviate the economic impact of handicaps on prospective tenants who needed inexpensive housing. In rejecting the developer’s argument the 7th Circuit pointed out that if the reasonable accommodation provision required consideration of a tenant’s financial situation, then the statute would allow developers not only to ignore zoning laws, but also to obtain a “reasonable accommodation” that suspended a local building code that increased the cost of construction, or a minimum wage law, or regulations for the safety of construction workers. The statute did not call for these results, the court explained, because the duty of “reasonable accommodation” is limited to modifying rules or policies that hurt handicapped people by reason of their handicap, rather than by virtue of circumstances that they share with others, such as limited economic means.

The 8th Circuit found these cases persuasive in the present situation and ruled against Klossner. In interpreting the predecesor statute to the FHAA courts called for accommodations that provided the “direct amelioration of a disability’s effect,” but nothing in the law suggested that the duty of “reasonable accommodation” “extended to … alleviating downstream economic effects of a handicap.”

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Seventh Circuit follows SCOTUS lead, upholds validity of distinction between on- and off-premises signs

Gary Taylor

by Gary Taylor

Adams Outdoor Advertising v. City of Madison, Wisconsin
Seventh Circuit Court of Appeals, January 4, 2023

Adams Outdoor Advertising (AOA) owns billboards throughout the Midwest, including 90 in Madison, Wisconsin. Like a majority of cities Madison adopted a sign ordinance to promote traffic safety and aesthetics. It comprehensively regulates “advertising signs,” which is defined under the ordinance as any sign advertising or directing attention to a business, service, or product offered offsite; in other words, a sign that advertises something unrelated to the premises on which the sign sits. The construction of new advertising signs has been banned under the Madison ordinance since 1989. Existing advertising signs were allowed to remain but cannot be modified or reconstructed without a permit and are subject to size, height, setback, and other restrictions. In 2009, Madison amended its sign ordinance to prohibit digital displays. In 2017, the definition of “advertising sign” was amended to remove references to noncommercial speech. Several of these amendments spurred lawsuits against Madison by AOA which are not relevant to the present case. As the ordinance now stands, the term “advertising sign” is limited to off-premises signs bearing commercial messages.

AOA initiated the present litigation based on the U.S. Supreme Court’s 2015 decision in Reed v. Town of Gilbert. Although the distinction between on-premises and off-premises signs was not at issue in Reed, AOA argued that, under Reed, any ordinance treating off-premises signs less favorably than other signs is a content-based restriction on speech and thus is unconstitutional unless it passes the high bar of strict scrutiny. The district court disagreed and applied intermediate scrutiny. Relying on the Fifth Circuit case of Reagan National Advertising v. City of Austin AOA appealed the district court ruling. When the U.S. Supreme Court agreed to take up the Austin case the Seventh Circuit delayed ruling on the AOA v. Madison case pending the outcome of Austin. As readers of this blog know, the U.S. Supreme Court used the Austin decision to clarify that nothing in Reed altered its earlier precedents applying intermediate scrutiny to billboard ordinances and upholding on-/off-premises sign distinctions as ordinary content-neutral “time, place, or manner” speech restrictions.

For time, place, and manner restrictions to be valid they need only be narrowly tailored to serve a significant governmental interest.” It has been established through countless cases that traffic safety and visual aesthetics are significant governmental interests. AOA nonetheless argued that the Madison ordinance failed intermediate scrutiny because the city failed to provide empirical evidence linking billboards to aesthetic or safety-related harms. Citing earlier precedent, the Seventh Circuit stated that “billboards, by their very nature…can be perceived as an esthetic harm” and the city “need not try to prove that its aesthetic judgments are right.” Likewise, the connection between billboards and traffic safety is too obvious to require empirical proof. “It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it.”

The Seventh Circuit affirmed the district court’s dismissal of AOA’s claim.

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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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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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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.”

Federal courts, First Amendment claims, United States Supreme Court , , ,
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What to Make of Murr v. Wisconsin

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by Eric Christianson

Suppose a landowner owns two adjacent parcels, which she purchased at two different points in time.  One parcel is 20 acres that consists almost entirely of wetlands. The second parcel, immediately to the west, is 50 acres of rolling, developable land.

Years after she purchased both parcels the state enacts a law that effectively prohibits filling, dredging, developing, or otherwise modifying wetlands. The landowner sues the state, claiming a taking of “all viable use” of her property.

What is her “property”?  The landowner will claim that her property for purposes of her takings claim is only the parcel made up of the 20 acres of now-unbuildable wetlands. The state will argue that her property is both parcels taken together, which means the landowner continues to have “viable use” 50 of her 70 total acres.

Who is right?  Courts have long struggled with developing rules for determining the appropriate “denominator parcel” for analyzing taking claims. In Murr v Wisconsin (see the full case brief from last week below) the Supreme Court dealt with precisely this question. And while not offering any clear rules, the court does seem to give local governments the benefit of the doubt in this determination.

A key element in arguing a regulatory takings claim successfully is that the owners show that they have been deprived of, “all or nearly all economically beneficial use of their land” by the offending regulation. This is often determined by comparing the value of the property before the law in question went into effect to its value under the effects of the new law.

Defining the property more narrowly usually gives the landowner the upper hand. Focusing only on the effected parcel makes the loss more severe relative to its value. However, when considered with the entirety of a property owner’s holdings, the deprivation may be less significant relative to the the full value of the land. This is often called the “denominator problem” in takings analysis. Courts need to determine which value to divide the loss by to see if a law has resulted in a loss of all economically viable use.

One complicating factor is the existence of merger provisions in state and local law which under certain circumstances automatically merge adjoining parcels held under common ownership. Such merger provisions have been features of local zoning ordinances for a long time. Towns began enacting them in the 1920s. They were very common by the 1960s, because local governments and state courts recognized that they represent an attractive middle ground between two unattractive extremes: (1) entirely prohibiting the development of substandard lots, which would be a hardship to their owners, and (2) allowing the development of all substandard lots, which would be a hardship to neighbors and restrict the ability of a community to pass regulations.

Whether the inclusion of a merger provision in local law is enough to determine the relevant parcel was one of the most important aspects of Murr v. Wisconson. In this case, the Supreme Court adopted a three-part test to help guide lower courts in making this determination. It also gives local governments some idea what the extent of their power is in setting land use regulations.

This new test directs courts to take into account: (1) state and local law, (2) the physical characteristics of the land, and (3) the prospective value of the land. This case does not give us any bright line rules, but it appears that merger clauses will determine the relevant parcel in most cases. Kennedy’s argument in adding physical characteristics and prospective value to the equation is his attempt to avoid “gamesmanship” by states to avoid paying for regulatory takings. States do not have total power to determine what property rights are.

In returning to our example above, while we do not have a clear answer as to how a court would rule, we do have some idea how a court should reason. (1) What does state and local law say about these two parcels? Are they entirely separate? Or, is there some provision in state law which treats them as merged? (2) How do these two parcels fit together? Are they simply touching along a short edge or do they form a cohesive whole? (3) Finally what is the financial impact of the regulation on the parcels? Are the 20 acres of wetland a total loss or can they serve some economic purpose? Perhaps the wetland is an attractive amenity raising the value of a future housing development on the other 50 acres. Clearly our simple example does not have enough detail for us to answer all these questions.

The second and third factors have to do with the inherent qualities of the land and the local property market, but local governments do have control over the first. In Murr the Court gave significant weight to the existence of a merger provision local law.

In the end, this decision preserves the right of local governments to set minimum lot sizes and avoid further subdivision even where lot lines may appear on a plat map. This is overall a win for local and state governments. However, Kennedy finishes up the opinion of the court by reflecting that much like the analysis of regulatory takings itself, determining the relevant parcel “cannot be solved by any simple test.” If recent takings fights have taught us anything, where there is ambiguity, there will be litigation. Stay tuned.

Federal courts, Property law, Takings, United States Supreme Court, Wisconsin courts
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Planning Board denial not a “final action” under Federal Telecommunications Act when review by Board of Appeals required by ordinance

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by Hannah Dankbar and Gary Taylor

Global Tower Assets, LLC; Northeast Wireless Networks, LLC v. Town of Rome
Federal 1st Circuit Court of Appeals, January 8, 2016

Global Tower Assets and Northeast Wireless Networks obtained a leasehold interest in Rome, Maine. According to Rome’s Ordinance applicants must get permission from Rome Planning Board to build a wireless communication tower.

The Ordinance includes a section that reads, “[a]dministrative appeals and variance applications submitted under this Ordinance shall be subject to the standards and procedures established by the Town of Rome Board of Appeals.”

The companies first asked for permission from the Planning Board to build the tower on April 8, 2013. The Board discussed the proposal on May 20, 2013 and held other meetings over the next few months. On February 10, 2014, the Planning Board voted to deny the application because the application was not complete. On March 10, 2014 the Planning Board published their decision. The decision was sent to the Board of Appeals for Review. The next day, the companies filed suit in the United States District Court for the District of Maine.

Part of their suit included complaints under the Telecommunications Act (TCA) of 1996. The TCA provides relief to those who are denied permission to build telecommunication facilities at the state or local level trough “final action”. However, the TCA does not define “final action”.  In this case, the question is whether the administrative process ended. The companies filed their TCA challenge to the Town of Rome Planning Board’s decision before the decision was reviewed by the local board of appeals. In Maine there is a general requirement that land use and zoning appeals are first heard by a zoning board of appeals before they can be litigated in state court.  Thus under Maine law “Rome necessarily made review by the board of appeals a prerequisite to judicial review.” There was an opportunity for the Planning Board’s decision to be overturned through an administrative (rather than judicial) process, meaning that the decision of the Planning Board was not a “final action” within the meaning of the TCA. The legislative history of the TCA does not reject a two-step administrative process at the local level to determine “final actions.”  Because the administrative process, as defined by Rome’s Ordinance was not complete the District Court was correct to dismiss the complaints.

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