Category: Notice

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

Gary Taylor

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.

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No need to make specific finding that building qualified as accessory building when granting special exception

hdankbar

by Hannah Dankbar

Hasanoglu v Town of Mukwonago and Town of Mukwonago Plan Commission
Wisconsin Court of Appeals, October 14, 2015

The Hasanoglus appealed a circuit court decision upholding a decision of the Town of Mukwonago Plan Commission to grant a special exemption to the Hollerns to build an accessory building on their property. The Hasanoglus argue that the Plan Commission does not have jurisdiction to grant this exception and that the exception was arbitrary and unreasonable.

The Hollerns applied for a zoning permit to build a riding arena on their property in rural Mukwonago. Mukwonago determined that the arena would be in “substantial compliance” with the town ordinances, except for the height and square footage of the building. The Plan Commission met and approved the proposal by granting a exception to the zoning ordinance. Their neighbors, the Hasanoglus, filed a certiorari action which sustained the decision.

On appeal, the Hasanoglus argued that according to the Town of Mukwonago Municipal Code §82-25(a)(2)(b)(2) the Town Board could grant this exception, but the Plan Commission does not have jurisdiction to do so in this case. While it is true that this section of the code gives this power to the Town Board, a different part of the code gives the same power to the Plan Commission (Town of Mukwonago Municipal Code §82-25(b)(3)). The court determined that §82-25(b)(3) is the appropriate subsection because there was no finding of a rural accessory building on the Hollerns’ property as is required by §82-25(a)(2)(b)(2).

Next, the Hasanoglus argued that: (1) the Hollerns did not follow the correct procedure to apply for the special exception; (2) that the Plan Commission agenda was not specific enough to give notice of the Hollerns’ request; and (3) the Plan Commission did not conduct a sufficient inquiry into whether the proposed riding arena qualified as an accessory building.

First, the question of whether the Hollerns followed the correct procedure was not raised in circuit court and the section of the municipal code that the Hasanoglus cite is only for property owners seeking exceptions for setbacks. This argument was not considered on appeal.

Second, the Plan Commission’s agenda states, “ACCESSORY BUILDING HEIGHT AND SIZE INCREASE FOR S64W27645 RIVER ROAD, MICHAEL AND LAURA HOLLERN PROPERTY OWNER.” The minutes show approval of the request. The Plan Commission is not obligated to be any more specific than that.

Lastly, The Plan Commission is not required to record a specific discussion and determination in its minutes that a building qualifies as an accessory structure.  The Plan Commission placed multiple conditions on the approval of the exception (an example being that there can be no commercial use) which demonstrated that it considered the issue and exercised its judgment.

These arguments failed, so the decision was upheld.

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Wisconsin intergovernmental agreement statutes allow for “major” boundary changes

hdankbar

by Hannah Dankbar

City of Kaukauna v. Village of Harrison
Wisconsin Court of Appeals, August 26, 2015

In 2013 the Village of Harrison was created within the Town of Harrison. The two communities created an intergovernmental cooperation agreement to share services and provide more land to the Village. The Cities of Kaukauna and Menasha, the Village of Sherwood along with individual property owners (referred to as the Challengers) argue that the agreement involved a “major” boundary change that exceeds the scope allowed by statute, and that the Town and Village did not strictly comply with statutory notice requirements.

In February 2013 voters in the Town of Harrison approved incorporating a 4.6-square-mile area as the Village of Harrison.  The Town and the Village published a notice about a hearing to discuss an Intergovernmental Cooperation Agreement concerning the provision of municipal services and the apportionment of costs, assets and liabilities, and the boundary line that would form the village limits. In addition to the published notice there was also a notice sent via certified mail to 1910 property owners. As a result of the boundary change 1,736 parcels that had been in the Town were assigned to the Village, which had an initial population of 9,597. This left the Town with 1,316 residents in “growth areas” with intermunicipal agreements with the cities of Appleton and Menasha. Prior to creation of the Village the Town of Harrison had about 10,700 residents.

The Challengers argue that WIS. STAT. § 66.0301 allows only “modest boundary changes incidental to” the sharing of services between governments and requires a prehearing notice to property owners of the effects of the intergovernmental agreement on the boundary lines. The Challengers conceded that the statute is silent on the scope of the boundary changes permitted via intergovernmental agreements, but they argue that the statute should be read to allow only “modest” boundary changes necessary to accomplish the statute’s “primary goal of sharing services between municipalities.” The Court of Appeals, however, believed that this would require it to read beyond the plain language of a statute, which the court determined it would not do.

The Challengers argue that allowing municipalities to achieve major boundary changes via intergovernmental agreements would lead to an “absurd” result and would take meaning away from other statutes related to intergovernmental agreements, and the agency and mandatory public referendum approval process required for other jurisdictional alterations. The court disagreed.  Just because there is a legislative process that the Challengers do not like does not mean it is “absurd”. Statutes can provide multiple methods for altering municipal boundaries.

The Challengers argue that even property owners who are not near the boundary are still affected by it and should be given notice. Wisconsin law provides for publication of “a class 1 notice” in a newspaper that is available to everybody in the area. The court found this to be sufficient notice to those property owners.

Both notices (direct mailed notice and newspaper notice) provided by Harrison made reference to “boundary line adjustments between the Town of Harrison and the Village of Harrison” as being part of the intergovernmental cooperation agreement. This complied with the minimal notice requirement of WIS. STAT. § 66.0301(6)(c)1 by informing property owners that the approval of the agreement would relocate many of them. The language of the statute does not specify what information is required to be in the notice.

The Court of Appeals found that Harrison fully complied with all statutory notice requirements.

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Notice of intent to demolish building “reasonably calculated” to inform owners of pending action

Gary Taylor

by Andrea Vaage

Yang v. City of Wyoming
Federal 6th Circuit Court of Appeals, July 13, 2015

Ming Kuo Yang and Julie Yang owned a commercial property in Wyoming, Michigan. The Yangs previously rented the property to a series of restaurants; eventually, the property was listed for sale in late 2010. The lease on the last restaurant ended in February 2011. The property was never sold and was then neglected. The owners continued to pay property taxes. In October 2011, city officials posted an abandonment notice on the building. The notice was also mailed to the address of the abandoned building, but listed the former owner as the recipient, not the Yangs. In July 2012, the city sent a “Notice and Order to Repair or Demolish” by signature-required certified mailing to the building address. This notice also listed the former owner as the recipient. Two months later, the post office returned the mail to the city as unclaimed. The City did a title search of the building and identified the Yangs as the correct owner. The City then sent both previous notices to the Yangs’ correct address by certified mail in September 2012.

The City did not receive a response from the Yangs. It then scheduled a hearing about demolishing the property for November 1, 2012. The City sent the Yangs a hearing notice by regular mail and also sent a notice to the Yangs’ realtor. Soon thereafter, the post office returned the original certified mailing to the Yangs as unclaimed. This information was not present. The Yangs did not appear to the hearing on November 1 where the board decided to demolish the property. The property was demolished in January 2013, and a $22,500 bill was sent to the Yangs’ address for the work.

The Yangs then discovered their building was demolished and claimed the city violated their procedural due process rights by demolishing the property without adequate notice. The standard of review is whether the City’s efforts were “reasonably calculated” to inform the Yangs of the action taken on their property. The City of Wyoming attempted to contact the Yangs through posted notices, mailed notices to the Yangs, mailed notice to the realtor, and the post-hearing notice. Michigan caselaw has established that a posted notice is, by itself, an appropriate way to inform a person of the proceedings against him. Another precedent notes that notice mailed to a person’s home address generally satisfies due process requirements. The Yangs argue, however, that notice by itself is not adequate, since the hearing notice did not provide the reasons for demolishing the property and the post-hearing notice would have come too late for the Yangs to prepare to defend themselves.

The Court found that all of the information contained in all of the notices, taken in the aggregate, were sufficient to meet due process requirements. Even though the Yangs did not actually receive notice, as the certified mailing was returned unclaimed, the additional efforts made by the City were reasonable attempts to contact the Yangs. The Court found the city’s attempts at contacting the Yangs were “reasonably calculated” to give the Yangs adequate notice.

Dissent

The dissent argued that the majority misconstrued the facts of the case and the contents of the notices provided by the City. The final four attempts at contacting the Yangs were not adequate because they did not provide the reasons for the potential demolition of the building, providing “less information than the average parking ticket.” The issue wasn’t whether the forms of notice were adequate, but whether the notices actually informed the owner of the issue. In the case, the dissent argues the City failed to provide the reasons for demolition in the follow-up notices and thus violated procedural due process.

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Notice provision for city inspection preempted by state statute

Gary Taylor

by Andrea Vaage

Olson et al. v. City of La Crosse
Wisconsin Court of Appeals, July 16, 2015

Landlords in La Crosse, Wisconsin challenged a City ordinance that would have required them to participate in an inspection and registration program. The circuit court rejected the challenge. The landlords appeal, arguing the part of the ordinance requiring the landlords to notify tenants of a city inspection was preempted by state statute.

The LaCrosse notice provision in question states:

“(3) The owner [of a rental property] shall arrange for access to the dwelling or dwelling unit and all portions of the property affected by the rental of the dwelling or dwelling unit and shall notify all tenants of the [City] inspection in accordance with Wisconsin law and the lease agreement between the owner and the tenant. Failure to provide access to the property and dwelling or dwelling unit on the agreed inspection date will subject the owner to the fees specified in Section 8.09 of this Code and denial of the registration certificate.

(4)  Except as otherwise provided by law …, inspections shall not be conducted:

….(c)  Without prior notice to the tenant by the owner as required by state law or the lease agreement.”

 

The relevant Wisconsin statute provides: “No city, village, town, or county may enact an ordinance that requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.”

Despite the Wisconsin statute cited above, the City identified two state statues and an administrative code provision that they argued worked together to require a landlord to notify tenants of a city inspection. The Court found that the first of the state statutes, and the administrative code, applied to landlord inspections, not city inspections, and were inapplicable to the situation.

The other statute, Wis. Stat. 704.07(2), requires landlords to “comply with any local housing code.” The City argued that the notice provision was part of the local housing code, and therefore proper under Wis. Stat. 704.07(2). The Court interpreted these statutes in a manner that harmonized them. “We give each its full force and effect by interpreting them as requiring landlords to “comply with any local housing code” …while also prohibiting local governments from including in local housing codes any provision that “requires a landlord to communicate to tenants any information that is not required to be communicated to tenants” under any other federal or state law.” This interpretation, the court stated, would not substantially change the powers of the municipality. The City could still conduct inspections, but they would be responsible for notifying tenants of city inspections, not the landlords.

The Court reversed the circuit court decision to uphold the notice provision, while upholding the rest of the ordinance.

 

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Oklahoma annexation statute requiring notice by certified mail means what it says

hdankbar

by Hannah Dankbar and Gary Taylor

In re: Detachment of Municipal Territory from the City of Ada, Oklahoma
Oklahoma Supreme Court, March 31, 2015

In February 2013 the City of Ada passed Ordinance No. 13-02 to annex property into its corporate limits. Property owners in this area attempted to set aside the ordinance, but were denied by the City. Petitioners were property owners within the annexed territory.  They filed for a Declaratory Judgment asking the court to nullify the annexation or, in the alternative, to detach their properties from the city.  The basis for the claim was that the city did not comply with 11 O.S. 2011 §21-103, which sets forth the notice requirements for a municipal annexation.  The trial court denied their request and this appeal followed.

11 O.S. §21-103(B)(2) states:

A copy of the notice of annexation shall be mailed by first-class mail to all owners of property to be annexed as shown by the current year’s ownership rolls in the office of the county treasurer and to all owners of property abutting any public right-of-way that forms the boundary of the territory proposed to be annexed and to the Sales and Use Tax Division of the Oklahoma Tax Commission; provided that the notice of annexation shall be mailed by certified mail to every person who owns a parcel of land of five (5) acres or more used for agricultural purposes.

Petitioners alleged the City failed to provide notice by certified mail to owners of property of five acres or more used for agricultural purposes, which abuts the boundaries of the annexed territory. Certified mail “return receipt requested” was sent to all owners of property within the territory to be annexed; however, the City provided only first class mail to abutting property owners of 5 or more acres of agricultural land, despite the use of the mandatory language “shall” in the statute.

The statute reads that “every person” owning five acres or more of agricultural land should receive notice by certified mail. The record clearly shows that the City did not send notice by certified mail to all owners of five acres or more of agricultural land abutting the boundaries of the annexed territory; rather the City used first-class mail.  The certified mail requirement is meant to protect the property owners who are affected by the annexation but are not within the territory. One such owner, Mr. Plumlee, who owns more than five acres of agricultural property in section 14, testified that he did not receive any kind of prior notice of the proposed annexation. If the City had utilized notice by certified mail, it would have been obvious whether City had sent notice to Mr. Plumlee.  According to the court, “one property owner without notice is too many.”  The Court found that the legislature intended nothing less than certified mail for the agricultural owners of five acres or more within the annexed territory.  The trial court erred in disregarding the legislative intent to provide a specific level of notice to specific groups of property owners.

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LaVista (NE) annexation not purely for revenue raising

Gary Taylor

by Gary Taylor

US Cold Storage, Inc. v. City of LaVista
(Nebraska Supreme Court, March 29, 2013)

In 1969, the owner of a 210-acre parcel in Sarpy County petitioned the Sarpy County Board of Commissioners to designate the tract as an industrial area and the board complied. Under Nebraska law an industrial area is land “used or reserved for the location of industry.” At the time of the designation, La Vista’s zoning jurisdiction did not reach any part of the parcel; therefore the city’s approval was not required. US Cold Storage acquired four lots in the industrial area in 1971 and has operated its business there since that time. Sanitary and Improvement District (SID) 59 was created in 1971 to provide utilities and services to the industrial area. The area of SID 59 is greater than, but includes, the entire industrial area.  In October 2009 La Vista resolved to annex SID 59. It sent written notices to the property owners within SID 59 of an October 22 city planning commission public hearing on the proposed annexation. On November 3, La Vista sent written notice to the property owners within SID 59 of a November 17 city council hearing also regarding the annexation of SID 59. On December 1, after conducting the public hearings, La Vista approved an ordinance purporting to annex SID 59 in its entirety.

On December 16, 2009, Cold Storage filed a class action complaint against La Vista and SID 59 challenging the validity of ordinance 1107. The complaint alleged that ordinance 1107 was invalid because (1) La Vista failed to comply with statutory notice requirements when adopting it, (2) the annexation was for revenue purposes only, and (3) state law prohibited the annexation of the industrial area in SID 59.

On January 18, 2011, while Cold Storage’s challenge to the validity of ordinance 1107 was pending in district court, La Vista directed its planning commission to consider the annexation of only a portion of SID 59; specifically, that portion that did not include the industrial area. On April 19, after giving proper statutory notice of this proposed annexation, La Vista adopted an ordinance (ordinance 1142) purporting to annex the portion of SID 59 that did not include the industrial area.  SID 59 filed a cross claim in the initial action, and asserted that ordinance 1142 was invalid.  The district court found in favor of La Vista on all claims, and Cold Storage and SID 59 appealed.

Statutory notice claim.  It was undisputed that the notices did not strictly comply with Neb. Rev. Stat. 19-5001 (one was 3 days late, another was 2 days early, along with  minor errors).  It was also undisputed that SID 59 had actual notice of the annexation proceedings.  In siding with La Vista, the court relied on Neb. Rev. Stat. 19-5001(5), which only voids annexation decisions on notice grounds if the errors are “willful or deliberate.”

Annexation for revenue purposes.  Caselaw in Nebraska proscribes annexation for revenue purposes only.  The court rejected the notion that because the SID was completely built out the city would be incurring no liabilities.  The court referred to La Vista’s required annexation plan, which identified the street and sewer improvements the city would become responsible for in the event of annexation, and the the additional police staff needed to patrol the area.  The city’s finance manager testified that the city would also assume all debts and obligations of SID 59, including approximately $2.1 million in net bonded debt.  The court concluded that although revenue was a factor, but other factors included the indebtedness which the city would assume, the city’s objective of orderly growth, and the perception that annexation of SID 59, which was already surrounded by the city, would improve the provision of services by eliminating jurisdictional issues.

Prohibition against annexation of industrial area.  Prior to 1991, Neb. Rev. Stat. 13-1115 only permitted the annexation of an industrial area under two circumstances (neither of which applied in this case); however, in 1991 the law was amended to allow annexation if the industrial area “is located in a county with a population in excess of 100,000 persons and the city did not approve the original designation of the tract as an industrial area.”  The court found that both conditions were met in this case.  Cold Storage contended that because La Vista could not have annexed the area prior to 1991, a vested right existed to continue the operation of SID 59 without annexation.  The court noted that the true nature of the vested right claimed by Cold Storage was the “benefit” of lower taxes accruing from not being subject to taxation by La Vista; however, the court cited numerous cases for the proposition that exemption from taxation is not a vested right.  “We find nothing in the language of the pre-1991 version of Neb. Rev. Stat. 13-1115 which would constitute a pledge by the Legislature that the circumstances under which property in an industrial area could be annexed would never be altered by an amendment to the statute.”

The Nebraska Supreme Court affirmed the ruling of the district court on all issues.

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Letter to council member insufficient to give notice of charges for removal from office

Gary Taylor

by Gary Taylor

Clark v. City of Sidney
(Iowa Court of Appeals, November 29, 2012)

Clark was elected by popular vote to the city council of the City of Sidney in November 2009 as one of its five at-large members. Regular meetings were held the second Monday of each month, and special meetings at other times. From January 2010 through September 13, 2010, Clark attended five of nine regular meetings and five of ten special meetings.  In June 2010, the attorney for the City sent Clark a letter asserting his failure to attend the last three regularly scheduled meetings rose to the level of “willful or habitual neglect or refusal to perform” his duties under Iowa Code section 66.1(1). This same letter noted that, should Clark continue to be absent, he may be asked to step down or the City may take action to remove him. Despite this warning, Clark failed to attend three subsequent meetings.  In August 2010, Clark received another letter from counsel for the City of Sidney, informing him that a hearing would take place at the September regular meeting of the Council “on written charges filed with the Council of the City of Sidney to remove you as City Council member for the willful or habitual neglect or refusal to perform your duties as a City Council member, for willful misconduct or maladministration as a City Council member and for intoxication as a City Council member.”  The letter was filed with the Council, but no written charges were prepared and filed.

Clark attended the September regular meeting with an attorney. His attorney objected to the removal hearing, stating both he and Clark had “no idea what the complaints” against him were. The mayor, who ran the meetings but did not vote, responded that these complaints were regarding Clark’s attendance and misconduct at a local establishment. No witness was put under oath and the statements were made in a question and answer format. Clark presented several witnesses including his wife, father-in-law, and mother. He stated he missed one meeting due to the death of his father and another due to a no-contact order which forbade him from having contact with another council member’s son and immediate family, which arose out of an altercation between the son and Clark at a local bar. Clark also stated that he could not attend special meetings because their timing conflicted with his work. The City presented no independent witnesses and no written evidence, although the other council members made statements concerning Clark’s failure to attend meetings, with lesser attention paid to the misconduct and intoxication allegations. Following this, a vote of the five council members occurred. The vote was 4-1 in favor of Clark’s removal, with Clark himself casting the lone dissenting vote. Clark appealed his dismissal to the district court through a writ of certiorari, which was dismissed.  He then appealed to the Court of Appeals.

Clark contended the August letter filed with the city council did not comply with the statutory requirements under Iowa Code section 66.29 which states:

Any city officer elected by the people may be removed from office, after hearing on written charges filed with the council of such city for any cause which would be ground for an equitable action for removal in the district court, but such removal can only be made by a two-thirds vote of the entire council.

The district court found that “[o]ther than the letters from the city attorney, there were no other written charges or specifications filed against Mr. Clark.” The city clerk testified the August 2010 letter to Clark from the city attorney was filed with her, and that she stored it with the other city council filings and gave a copy to the mayor. She told Clark before the September hearing that no charges were filed. The letter specifically noted the hearing was “on written charges filed with the Council.” The August letter itself, therefore, was not intended by the council or their attorney to be “written charges.” Observing that the statute requires written charges to be filed and that a court must give a removal statute strict construction, the Court of Appeals found that Clark was required to receive notice of the details of the charges before the council’s hearing in this case. The August certified letter received by Clark restated the language of the removal statute, failed to set forth any specific information regarding the grounds for removal, and referred to written charges filed with the city council that did not exist. The August letter did not fulfill the City’s statutory duty to provide Clark with notice prior to removal.  The Court of Appeals reversed the district court’s decision and remanded the case for entry of an order sustaining the writ of certiorari.

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Court must consider evidence of non-receipt of certified letters in due process claim

by Kaitlin Heinen

Alford Cotton v. City of Cincinnati
(United States 6th Circuit Court of Appeals, August 21, 2012)

Alford and Rubbie Cotton bought a building, with address 1673 Westwood Avenue, in 2002, but had allowed it to deteriorate over the next seven years. In 2009, city inspectors reported that the building was empty, had no heat or running water, was infested with rodents, and was littered with human excrement and drug paraphernalia. The City of Cincinnati sought to declare the building a public nuisance. Before this can happen, though, the Cincinnati Municipal Code requires the City to hold a public hearing and that the City send notification of the hearing to the building’s owners via certified mail. After consulting the county land records, the City found only the Cottons listed as the owners of the building and their residential address was listed as 1673 Westwood Avenue—the same address as the vacant, run-down building in question. The City proceeded to send notice to 1673 Westwood, posted a notice on the building, and published a notice in the City’s Bulletin for two weeks, in accordance with the Cincinnati Municipal Code.

The Cottons did not attend the hearing held on October 30, 2009, where a building inspector testified that the building violated numerous code provisions; the police department testified that the building is a safety concern as it frequently harbors vagrants; the fire department testified that the building is a fire hazard; and a certified property manager testified that building’s condition had lowered property values in the neighborhood. Based on this evidence, the City declared the building a public nuisance and ordered its demolition, for which the Cottons would foot the bill. The City mailed a letter to the Cottons–again at the Westwood Avenue address–informing them of the hearing’s outcome. The City hired private contractors for the demolition and issued them a permit, which was completed in May and June 2010.

“After the dust settled,” the Cottons filed suit against the City and the private suit in state court, alleging their Fourteenth Amendment due process rights were violated, in that the City did not provide adequate notice of nor obtain a warrant for the demolition of their building. The Cottons also claimed trespass and sought a writ of mandamus to force the City to institute eminent domain procedures for the taking of their building. On appeal before the district court, the Cottons cited the U.S. Supreme Court decision in Jones v. Flowers, which held that if the initially mailed notice is unclaimed, the City must take additional steps to provide notice to the property owner. The district court granted the City’s request to take judicial notice that the letters were mailed and held that the letters mailed by the City satisfied Fourteenth Amendment due process requirements. The Cottons objected in federal court, urging the U.S. 6th Circuit Court of Appeals to take judicial notice of the public records that show that the letters were returned as undelivered.

The City did not offer an explanation for why the court should take judicial notice of public records that show the letters were mailed but not public records that show the letters were returned as undelivered. “To respect the one form of judicial notice but not the other creates a half truth, and an important one at that.” (Fed. R. Evid. 201(b).  As a result, the 6th Circuit vacated the district court’s judgment and remanded the case back to the district court to decide the Cottons’ case in  consideration of all relevant public records.

Due Process, Federal courts, Notice , ,
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Need not exhaust administrative remedies at City Development Board before bringing suit on notice issue

Gary Taylor

by Allison Arends

Oglesby, et al v. City Of Coralville
(Iowa Court of Appeals, November 25, 2009)

Scanlon Properties submitted an application to the City of Coralville for annexation of property it owned, including a half mile of the right-of-way for North Liberty Road that connects the city to the Scalon property.  The property is in the two-mile extraterritorial area of the city of North Liberty.  Owners of adjacent property to the proposed annexed land filed a petition seeking a write of certiorari, a declaratory judgment and injunctive relief. The petition alleged that the city had not complied with Iowa Code section 368.7 (1)(b) and (d) when it failed to provide required notice of the annexation. Additionally the plaintiffs argued that although Iowa Code chapter 368 allows the annexation of adjoining land, this particular annexation involved a “shoestring” or “umbilical cord” annexation in which the annexation included noncontiguous land that was only connected to the city through the proposed annexation of one half-mile of a right-of-way. Despite the petition, the City Council voted to approve the annexation application.

At the district court hearing, the city moved to dismiss the petition arguing that the plaintiff’s failed to exhaust all administrative remedies with a state agency and that because they did not own property within the territory of the proposed annexation, the plaintiffs lacked standing .The district court denied their dismissal and enacted a temporary injunction which prevented the city, “from taking further action on the proposed Scanlon property annexation until such time as it complies with all statutory notice requirements.”

The city, in its appeal, first argued that the plaintiffs failed in exhausting all administrative remedies specifically because the City Development Board had not yet approved the annexation, and therefore a judiciary decision on the annexation violated the very principle of exhaustion remedies. The court responds by noting that it is, “well established that a party must exhaust any available administrative remedy before seeking relief in the courts.”  “The exhaustion doctrine applies when (1) an adequate administrative remedy exists and (2) the governing statute requires the remedy to be exhausted before allowing judicial review.”  The court found that there was not an adequate administrative remedy available, because the City Development Board’s review of annexations within the extraterritorial area of another city does not include review to ensure compliance with the landowner notification requirements.  The CDB would not have had information about the extent to which landowners were notified before the city acted, and therefore concluded that, “a resort to the Board to rectify a failure by the city to give notice is permissive only, not exclusive of the judicial remedy.”

In response to the city’s claim that the plaintiffs lacked standing because they did not own property within the territory of the proposed annexation, the court noted that Iowa Code section 368.7 provides that, “Any approval must occur at a public hearing.  At least fourteen days before that hearing, the city must provide written notice to certain entities and landowners, including any non-consenting owners of property in the territory to be annexed and any owners of property adjoining the territory to be annexed.”   The court concluded that plaintiffs were entitled to notice, and thus had standing as owners of land adjacent to the road.  The district court’s decision was affirmed.

Annexation, Iowa Court of Appeals, Notice, Standing to sue , ,
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