Existing landscaping insufficient to meet ordinance buffer standards

by Hannah Dankbar

Schall v City of Williamston
Michigan Court of Appeals, December 4, 2014

William and Melanie Schall brought suit to compel their neighbors, D&G Equipment, Inc., owned by Elden and Jolene Gustafson to comply with the City of Williamston’s zoning ordinance that requires a special use permit to allow outdoor display of farm implements for sale.  The ordinance also requires a landscaped buffer zone to shield plaintiffs’ property from the sales display. The Schalls sought a writ of mandamus to compel the city and its contract zoning administrator to enforce the ordinance. The trial court found that the Gustafson’s use of their property violated the city’s zoning ordinance and ordered for the zoning administrator to enforce the ordinance.

As an initial matter the Court of Appeals affirmed that the Schalls had standing to bring the suit.  As abutting neighbors, the Schells “have a real interest in the subject matter of the controversy.  Nothing in state law indicates that private parties are limited in their ability to ask the court to abate a nuisance arising out of the violation of a zoning ordinance.

The requirements for a landscape buffer are defined in § 74-7.101 as “a minimum 15 feet wide” and “a staggered double row of closely spaced evergreens (i.e., no farther than 15 feet apart) which can be reasonably expected to form a complete visual barrier at least six feet in height within three years of installation.” The planning commission can only modify this requirement with “a written request identifying the relevant landscape standard, the proposed landscaping, how the proposed landscaping deviates from the landscaping standard, and why the modification is justified.”

In the present case, there was no “written request” to modify the ordinance standards. Even assuming that the site plan and the zoning administrator’s written and oral submissions to the planning commission were sufficient to meet this standard, and that the modified landscape included utilizing existing vegetation as part of the buffer, it must “achieve the same effect as the required landscaping.” The minimum standards of the ordinance apply except if the standard is reached with existing vegetation.

At the time of the lawsuit the buffer did not meet the standard, but the question became whether the buffer will meet the standard in three years. Based on its review of the expert testimony the Court of Appeals agreed with the trial court’s conclusion that the landscaping could not meet the standards of the ordinance and, therefore, that the Gustafsons were in violation of the zoning ordinance.

The zoning ordinance is clear and unambiguous and the trial court did not err in granting  summary disposition by finding no material disputed fact that defendants’ buffer failed to comply with the zoning ordinance and therefore was an abatable nuisance per se.

 

Church did not have standing to appeal rejection of city’s approval of cross display

by Rachel Greifenkamp

Chris Cabral and Nancy Tarsitano v. City of Evansville, Indiana
(Federal 7th Circuit Court of Appeals, June 25, 2014)

In April of 2013 the West Side Christian Church in Evansville, Indiana submitted an application to the City’s Engineer’s Office seeking permission to erect thirty-one six-foot plastic crosses on a 1.5-mile-long public riverfront for two weeks in August of 2013. The city denied the permit originally because the display was intended to be decorated with phrases like “Jesus saves,” which was against the City municipal code regarding “First Amendment signs.” When the permit was resubmitted without the religious phrases, the Board of Public Works approved the display contingent on a disclaimer being placed on either end of the display saying that it was not endorsed by the City of Evansville.

In June 2013 Cabral and Tarsitano (plaintiffs) filed a complaint against Evansville challenging the display as violating the Establishment Clause, and requested a preliminary injunction preventing the installation of the crosses. The church then filed a motion to intervene in July. The district court entered an injunction holding that, “the City’s approval of this display of crosses constitutes an impermissible endorsement of religion that violates the Establishment Clause of the First Amendment.” The city did not appeal the decision.  The church, however, filed a timely appeal arguing that the display did not violate the Establishment Clause and that instead the injunction violates the church’s First Amendment rights.

Rather than address the First Amendment issues, the Seventh Circuit Court of Appeals found that the church lacked standing to pursue its appeal.  There are three requirements that must be met in order for a litigant to have standing: (1) they must have suffered an actual or imminent injury in fact, (2) the injury must be traceable to the challenged action, and (3) it must be likely, not just speculative,  that the injury will be redressed by the court returning a favorable decision. Standing does not exist in this appeal primarily due to the fact that even if the court were to overturn the district court’s decision, it is only speculative as to whether the “injury” suffered by the church would be redressed because the City of Evansville might deny the permit for a number of reasons.  Such speculation as to future events is not enough to support a claim of standing “[S]tanding requires that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

In addition, the only party expressly bound by the injunction – the city of Evansville – did not appeal the lower court decision and was not a party to the church’s appeal.  A judgment will not be altered on appeal in favor of a party who did not appeal, even if the interests of the party not appealing are aligned with those of the appellant.

For these reasons, the church’s appeal was dismissed for lack of standing.

 

Realtors Association has standing to challenge rental licensing ordinance

by Gary Taylor

St. Louis Association of Realtors v. City of Ferguson
(Missouri Supreme Court, October 25, 2011)

In 2006, the City of Ferguson enacted an ordinance that created a regulatory fee and licensing system for owners of residential property within Ferguson who lease or rent their property to others.  To qualify for a rental license, property owners must undertake building inspections, file affidavits stating whether any adult tenants are registered as sex offenders, retain a property manager residing within 25 miles of the rental property and pay licensing fees. The ordinance makes it unlawful for property owners to rent or lease their property without a license.

The St. Louis Association of Realtors (Association) is a trade association with approximately 9,000 members in the St. Louis metropolitan area. The association challenged the validity of the ordinance on both constitutional and statutory grounds. Its petition asserted that it has associational standing on behalf of its members because some of those members are affected by the ordinance directly, because it has an interest in protecting private property rights of the type affected by the ordinance, and because the relief it requested is a declaration that the ordinance is invalid rather than damages and so, its suit does not require joinder of individual members.  The trial court dismissed the association’s petition, determining that it lacked standing to bring suit.  The association appealed.

According to the Missouri Supreme Court “Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote.  A legally protectable interest exists only if the plaintiff is affected directly and adversely by the challenged action or if the plaintiff’s interest is conferred statutorily….An association that itself has not suffered a direct injury from a challenged activity nevertheless may assert ‘associational standing’ to protect the interests of its members if certain requirements are met. The association must demonstrate that (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

The Missouri Supreme Court determined that the association had associational standing.  The association satisfied the first prong of the test because some of its members are property owners in Ferguson and, so, would have standing in their own right to challenge Ferguson’s ordinance. Specifically, three realtor-members testified that they own rental property within Ferguson and, as such, have felt a direct impact from the various requirements imposed by the ordinance.  The Court disagreed with the city’s assertion that a majority of an association’s members must be able to prove standing in their own right.

In assessing the association’s satisfaction of the second prong the Court observed that the relevant question is whether the basis on which the individual association members were found to have standing under the first prong also is germane to the association’s purpose.  “Mere pertinence between litigation subject and organizational purpose is sufficient. Requiring otherwise would undermine the primary rationale of associational standing, which is that organizations are often more effective at vindicating their members’ shared interests than would be any individual member.” The association supported its claim that it has an organizational interest in protecting property rights by introducing its by-laws, and mission statement, which both contain statements about the association’s stated purpose to protect members’ and homeowners’ property interests. The association also presented evidence that the association regularly engages in lobbying activities and fundraising to advance the interests of its members, including their interest in protecting real property rights. Further, two association representatives testified that the organization has initiated or participated in litigation challenging ordinances or defending its members cited for violating ordinances deemed objectionable to the association’s mission of protecting property rights.

Finally, the Court concluded that the third prong was met because the association merely sought prospective relief via a declaratory judgment that Ferguson’s ordinance was invalid. It was not pressing for damages or other relief that would require joinder of individual association members. “Where an association seeks only a prospective remedy, it is presumed that the relief to be gained from the litigation will inure to the benefit of those members of the association actually injured.”

Nebraska Supreme Court addresses standing to challenge annexation, and Open Meetings Act issues

by Melanie Thwing

Schauer v. Grooms
(Nebraska Supreme Court, August 6, 2010)

Curt and Susan Schauer live just outside of Ord in Valley County, Nebraska. In 2005 the City decided to recruit a developer to build and operate an ethanol plant on undeveloped land. Eventually, Redevelopment Area #3 (located 4 miles outside of the City’s border, and 1/8th of a mile from the Schauer’s farm) was chosen as a potential plant site.  Redevelopment Area #3 was declared blighted, then the city annexed the land to make TIF financing available for the project. 

After Val-E Ethanol was selected to construct and operate the plant numerous city council meetings were held. These meetings spanned from February to November 2005, from the time the land was blighted, a plan adopted, a financing agreement was decided and the land annexed.  These meetings were publicly noticed, consistent with Nebraska’s Open Meetings Act; however, on June 1, 2005 a dinner and tour of a similar ethanol facility were hosted by the Valley County Economic Development Board hosted without public notice.  Invitations were sent to numerous county residents including Schauers (who did not attend). Three of five city council members, and the mayor, were in attendance. (The city council consists of five people, overseen by the mayor who provides the deciding vote if there is a tie). The council members and the mayor were split into separate groups to tour – one group watched a video explaining the ethanol-making process while the other toured the plant. At the dinner the members of the council and the mayor discussed no information relating to the proposal.

Four months after the city council approved the annexation, the Schauers filed an action to void the annexation and to claim a violation of Nebraska’s Open Meetings Act. Summary judgment for the City was granted, and the Schauers appealed. 

The Nebraska Supreme Court first investigated whether the Schauers had standing to challenge the annexation.  The Court reviewed previous caselaw on the rights of landowners to challenge municipal annexations.  “This Court has never held that a neighboring landowner, who neither owns a property interest in the annexed territory nor will be subjected to new zoning regulations as a result of annexation has standing to challenge the annexation of someone else’s land….” Further, the Court noted that standing has never been conferred in an annexation challenge “simply because of proximity.”  The Court concluded that the Schauers did not have standing to challenge the annexation.

The Court did find the Schauers, as citizens of Valley County, had standing to bring a claim for violation of the Open Meetings Act.  The Schaurs first argued that because the City described Redevelopment Area #3 as “within the City” in various documents prior to annexation of the land it was misleading to the public. The Court disagreed, finding the contents of the notice reasonable.  The notices described the exact location of the property and included a map of the vicinity.

Next, the Schauers contended that the minutes of the city council meetings failed to identify an established method of notice, which they claim violated the Open Meeting Act. The Court also dismissed this claim.  It had been the long standing history to post agendas at the township library, the County courthouse, and city hall, as well as being made available at the city clerk’s office. The Open Meetings Act simply requires the public body to choose a method of notice, and that the method chosen be recorded in the minutes. In this case, the city clerk was able to establish through testimony that a consistent method of notification had been utilized.

The Schauers finally alleged that the tour and dinner on June 1, 2005 constituted a meeting, that public notice of the meeting was not provided, and it therefore violated the Open Meetings Act.  The Court again disagreed.  Under §84-1410 of the Open Meetings Act no informal meetings can be used for the purpose of circumventing meeting requirements. This however, does not apply to any chance meetings, or travel of members of the public body where no action is taken on matters they supervise.  The Court found that no policy decisions were made or discussed during the tour and dinner.  The separation of city council members into smaller groups was not done to circumvent the Open Meetings Act; rather, the small groups were acquiring information that was later commented on by the public in an officially-recognized meeting of the council. The Court stated that the Open Meetings Act, “does not require policymakers to remain ignorant of the issues they must decide until the moment the public is invited to comment on a proposed policy.” One purpose of the Open Meetings Act is to balance the public’s right to be heard and the public’s “need for information to conduct business.”

The Court then observed that there were never more than two city council members together at the same time during the evening.  The Court noted that the presence of the mayor was immaterial, as the mayor is not a member of the city council.  “The fact that a statute gives a certain official the right to cast the deciding vote in case of a tie…does not, of itself, make that official a member of that body for the purposes of ascertaining a quorum or majority….”  

The decision of the district court was affirmed.

Need not exhaust administrative remedies at City Development Board before bringing suit on notice issue

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.

Although house not yet built, landowner had standing to claim injury from CAFO approval

by Allison Arends

Hagerott v. Morton County Board of Commissioners
(North Dakota Supreme Court, February 22, 2010)

In 2008 Fred Berger applied to the Morton County Commission for a conditional use permit that would relocate an existing feed operation to a proposed site that was zoned for agricultural use.  The Morton County Feeding Operation ordinance requires a minimum separation of one mile between feedlots and residences.  Berger’s application indicated that there were no existing residences within one mile of his proposed feed lot; however, Donald Hagerott had also applied for a building permit in 2008 in order to build a house for his son, Mark Hagerott. The house would sit within one mile of the proposed feedlot. The Morton County Building Department issued him a building permit, noting that it was null and void if construction was delayed or suspended for a period of 180 days. Although the Hagerott’s placed a mobile home on the property they did, in fact, delay construction for over 180 days.  Hagerott maintained that the delay was a result of Berger’s pending application for the feedlot.

The commission approved Berger’s application for a 8,000 animal feeding operation and Hagerott appealed. The district court found that Hagerott did not have standing to challenge the commission’s approval.  Hagerott then appealed to the North Dakota Supreme Court.

The North Dakota Supreme Court first noted that for an individual to have standing, he must have some legal interest that may be enlarged or diminished by the decision to be appealed from, and such party must be injuriously affected by the decision. In regards to Hagerott’s standing the court found that, “the commission’s decision to grant a conditional use permit for a feedlot within the one mile odor setback of the proposed house has the effect of diminishing and injuriously affecting his personal and individual interest in his land in a manner different than that suffered by the public generally,” therefore making him factually aggrieved by the issuance of Berger’s conditional use permit and providing him with standing to appeal the commission’s decision.

In response to Hagerott’s second claim, the court first made clear that a county commission’s decision to issue a conditional use permit must be affirmed unless the commission acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision. The court went on to find that the commission correctly concluded that the Hagerotts did not have an “existing residence”  within one mile of Berger’s proposed feedlot after extensive consideration of what constitutes an existing residence.  The court also found that there was no evidence that the Hagerott’s made substantial expenditures in reliance on the zoning ordinance and therefore had no protection against zoning changes prohibiting that use. The court found that the commission issued the conditional use permit through a “reasoned discussion and mental process for the purposes of achieving a reasoned and reasonable interpretation,” and therefore did not act arbitrarily, capriciously or unreasonably.  The North Dakota Supreme Court therefore affirmed the district court’s decision.

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