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

Gary Taylor

by Gary Taylor

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

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

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

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

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

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

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Doctrine of necessity can immunize local governments from takings claims, but maybe not in this case

hdankbar

by Hannah Dankbar

Irwin v. City of Minot
North Dakota Supreme Court, March 24, 2015

Robert and Donna Irwin own 8.12 acres in Ward County, North Dakota. In 2011 the Souris River was flooding part of Ward County, which resulted in the City of Minot deciding to construct emergency earthen dikes along municipal streets. The City hired a contractor to gather clay to build a dike from Darrell Sedevie, the Irwins’ neighbor. The City contracted with Sedevie for removal of the clay, and paid sixty-five cents per cubic yard for 20,000 cubic yards of clay. The contractors entered the Irwins’ land to access the Sedevie property, removed an undetermined amount of clay and topsoil from both the Sedevie and Irwin properties, and used the materials to construct the emergency dike. Damage to the Irwins’ property included destruction of a cement slab, barn, damage to a fence, and destruction of native prairie grassland. The City did not contract, obtain permission, or pay compensation to the Irwins for removal of the clay from their property.

The Irwins filed a complaint of inverse condemnation against the City, citing Article I Section 16 of the North Dakota Constitution (the state Constitution’s Takings Clause). The Irwins argued that the City took deliberate action to remove soil and damage the property, the clay was removed for public use, the removal of the clay was the proximate cause of the damage to their property, and any defense that the City was acting under its police power or is protected from suit through sovereign immunity is inapplicable. The City moved for summary judgment to dismiss the claim. The City argued that the contractor’s removal of the clay was an exercise of its police power to act in a sudden emergency and did not constitute a taking under eminent domain. The City also argued it was not authorized to compensate the Irwins as a matter of law in exercising its police powers, and is statutorily immune from liability for damages resulting from the contractor’s actions.  The District Court found that the City acted under its police power authority during an emergency and not under its eminent domain authority, and therefore was not responsible for compensating the Irwins.

In North Dakota, when the state takes or damages private property without first compensating the owner through eminent domain, the property owner has to take the initiative by raising a claim of inverse condemnation. To establish an inverse condemnation claim, a property owner must prove a public entity took or damaged the owner’s property for a public use and the public use was the proximate cause of the takings or damages.  Under common law, however, a public entity can exercise a taking without compensating the owner when acting under police powers.  The “doctrine of necessity” operates to protect states from liability “when there is an imminent danger and an actual emergency giving rise to actual necessity.” Under North Dakota legal doctrine, “[t]he State or the municipality may, in the exercise of police power, exact of property owners uncompensated submission of their property in the protection of public health, safety, or morals, but such use or injury of private property under the police power is uncompensated in this State only where such power is exercised to meet sudden emergencies.”

In this instance, the record included evidence that before the flood the City contracted with property owners for clay to construct the dikes, and also that clay was available at other locations around the city.  Reviewing the evidence in the light most favorable to the party opposing the motion, a question of fact exists as to whether the imminent danger facing the City gave rise to an actual necessity to take the Irwins’ property. In this case, the North Dakota Supreme Court determined that the district court erred in ordering summary judgment.

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Defendants ‘good deeds’ not a defense to nuisance action

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by Hannah Dankbar and Gary Taylor

Flynn v. Hurley
North Dakota Supreme Court, March 24, 2015

The Flynns have lived on their property in East Fairview since 1999. This is a small-unincorporated village on the border of North Dakota and Montana. In 2007 Hurley Enterprises, which is owned by Vess Hurley, began operating an oil field service company on the property next to the Flynns. Hurley used the property to store large equipment and to dump sewage. The Flynns noticed an increase in truck traffic, dust, noise, diesel, smoke, lights and sewage odor.

The Flynns filed a complaint against the company claiming that the activity constituted a public and private nuisance. After a trial at district court it was determined that there was no private or public nuisance.  The Flynns claimed that the district court erred by allowing evidence about the reputation and good deeds of the company and the owner, and that this evidence was irrelevant to the nuisance question. The district court included in its opinion several quotes of witnesses speaking to the character of the company and of the owner, such as how he funds students to go on trips and plows snow in the town.

Section 828 of the Second Restatement of Torts (1977), states;

“In determining the utility of conduct that causes an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:
(a) the social value that the law attaches to the primary purpose of the conduct;
(b) the suitability of the conduct to the character of the locality; and
(c) the impracticability of preventing or avoiding the invasion.”

The relevant conduct in a nuisance action thus is not the value of the “good deeds” of the defendant in the community, but rather the value to society of the invasive actions that allegedly are a nuisance. The testimony that the Flynns objected to is irrelevant to the nuisance question because it did not “tend to prove or disprove any fact in issue.”

The Flynns also argued that district court erred in instructing the jury on the immunity afforded nuisance defendants.  The court gave the jury the following instruction:

ACTS DONE UNDER STATUTORY AUTHORITY NOT DEEMED NUISANCE
Nothing which is done or maintained under the express authority of a statute, law, or action of a governing body shall be deemed a nuisance. This protection is lost if the authority given is exceeded or is exercised in a negligent or unreasonable manner.”

Hurley Enterprises explained to the jury how they obtained approval from the necessary boards on issues related to zoning and sewage. Hurley Enterprises argued that since they obtained approval, their actions cannot be a nuisance; however, the North Dakota Supreme Court determined that the instruction misstated the law and was not supported with evidence and should not have been included. First, North Dakota zoning statutes do not expressly or by implication authorize the actions of Hurley Enterprises alleged to be a nuisance. Second, the instruction suggested that any action of a governing body could immunize the individual creating the nuisance, whether or not such action is authorized by statute. East Fairview has a three-member sewer board, which is a nonprofit entity that met informally and infrequently. One or more members of the sewer board gave Hurley Enterprises permission to dump sewage into the manhole near the property line with the Flynns. This was beyond the scope of authority of the sewer board, and so cannot be relied upon to immunize Hurley Enterprises from nuisance liability.

The Flynns argued that these mistakes (and others not reviewed in this brief) allow for a new trial. The North Dakota Supreme Court agreed that Flynn’s substantive rights were violated and that there should be a new trial.

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Regulation of charitable donation bins was content-based, likely to be found unconstitutional

hdankbar

by Hannah Dankbar

Planet Aid v. City of St. Johns, Michigan
Federal 6th Circuit Court of Appeals, April 6, 2015

Planet Aid is a non-profit community development organization.  Among its activities, the organization gathers donations of clothing and shoes using unattended, outdoor donation bins. Planet Aid takes these donations and gives them to other organizations around the world.

To establish the donation bins Planet Aid gets consent from property owners of private businesses to put the bin on their property. Planet Aid aims to have donation bins in convenient locations and have a representative of the organization collect the donations on a weekly basis. There is contact information for the representative on the bin to be used on an as-needed basis.

In December 2012 Planet Aid placed two donation bins in the City of St. Johns, Michigan. At the time, St. Johns had no regulation of charitable donation bins. In January 2013 the City sent Planet Aid a letter that read, “clothing donation containers have been found to create a nuisance as people leave boxes and other refuse around the containers.” Planet Aid was instructed to remove the bins by January 23. If they did not remove the bins, the City would. An attorney for Planet Aid asked the City Attorney if they had to be removed by the 23rd, or if they could wait until the City Council/planning commission enacted an ordinance against the bins. Planet Aid was told to remove the bins, and was also told it did not have standing to appeal the decision because it did not own property where the bins were located. The City moved the bins and moved them to a City facility where they were later picked up by Planet Aid.

In December 2013 City Council addressed the issue of charitable donation bins. The planning commission had made a recommendation of a “total prohibition” of such bins to the Council.  At the Council meeting, the Mayor said other communities “had people dropping off their trash” at donation bins, although the Public Works Director responded that trash drop offs at the two bins had “very seldom” occurred.

Ordinance #618 was put in place.  The substantive prohibition of the ordinance read:

No person, business or other entity shall place, use or allow the installation of a donation box within the City of St. Johns….A donation box that exists on the effective date of this ordinance shall not be subject to the prohibition contained herein.

The purpose statement of the ordinance read:

It is the intent of this section to prohibit donation boxes to protect the health, safety and welfare of the citizens of the city by preventing blight, protecting property values and neighborhood integrity, avoiding the creation and maintenance of nuisances and ensuring the safe and sanitary maintenance of properties. Unattended donation boxes in the city may become an attractive nuisance for minors and/or criminal activity. It is also the intent of this section to preserve the aesthetics and character of the community by prohibiting the placement of donation boxes.

In February 2014 Planet Aid filed a complaint in district court claiming that the ordinance violated their First Amendment right of charitable solicitation and giving. They claimed that the ordinance is a content-based restriction and deserved strict scrutiny. The City claimed that the bins were advertisements, and therefore the ordinance is content-neutral. The District granted Planet Aid’s motion for a preliminary injunction pending trial, and the City appealed.

The US Supreme Court has held that speech regarding charitable giving and solicitation is a protected First Amendment activity, and has applied strict scrutiny to local ordinances that presume to regulate charitable giving activities.  The Supreme Court has not addressed unattended donation bins, but the Fifth Circuit invalidated a Texas law that required such bins to make note of whether the donated items would be sold or not (National Federation of the Blind of Texas, Inc. v. Abbott). The Fifth Circuit stated that “public receptacles are not mere collection points for unwanted items, but are rather “silent solicitors and advocates for particular charitable causes.” The Sixth Circuit agreed with the reasoning of the Fifth, and noted that just because speech related to charitable giving may take the form of a bin does not mean it deserves less than strong constitutional protection.

Still, government regulations of protected speech only receive strict scrutiny if they are content-based.  Government actions that merely regulates the time, place, and manner of protected speech are subject to an intermediate level of scrutiny.  The US Supreme Court has analyzed the content-based versus content-neutral question in a number of ways: (1) whether the “government has adopted a regulation of speech because of a disagreement with the message it contains” (Hill v. Colorado); (2) whether the regulation hinders the “communicative impact of the [the speaker’s] expressive conduct.” (Texas v. Johnson); (3) whether the legislature’s predominant intent regarded the content of speech, rather than its’ secondary effects (Renton v. Playtime Theaters, Inc.); (4) whether the regulation is “based on the content of the speech” and not “applicable to all speech irrespective of content” (Consol. Edison Co., 447 U.S. at 536.). Under the guidance of these factors the Sixth Circuit determined that Ordinance #618 was content-based because it only banned outdoor bins that share a common topic – charitable giving – and not other outdoor bins or receptacles  such as dumpsters.  The concerns about overflowing items, trash dumping, and the risk of children climbing into such receptacles apply with equal force to dumpsters, receptacles at recycling centers, and public and private trash cans.

Because the ordinance was found to be content-based, it must stand up to strict scrutiny. The Sixth Circuit determined that there was sufficient evidence on this question to justify the district court’s determination that Planet Aid was likely to succeed on the merits (thereby justifying the preliminary injunction).  For these reasons the Court affirmed the ruling from district court.

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Flooding in Iowa project receives national and regional awards

Gary Taylor

The Flooding in Iowa project (accessible here and via the “Flooding in Iowa” tab at the top) received the national Educational Materials Award for 2015 from the National Association of Community Development Extension Professionals (NACDEP), and the regional Educational Materials Award from the NACDEP North Central Region.  These awards are given annually to recognize “outstanding materials that educate through credible, accurate and concise information.”  Both awards will be presented during the NACDEP Annual Conference, May 17-20 in Little Rock, Arkansas.

The Flooding in Iowa project is a series of 21 short, web-based videos and related materials designed to educate the public about floodplains, flood risks and basic floodplain management principles.

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DoT must pay just compensation for property erroneously recorded as “dedication” on plat map

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by Hannah Dankbar and Gary Taylor

Somers USA, LLC v. Wisconsin Department of Transportation
Wisconsin Court of Appeals, March 25, 2015

Somers purchased about 47 acres in 2007 to build a truck stop off of I-94. At the time the state was planning on using about 9.5 of those acres for a frontage road, and about 3 acres for an on ramp for a highway project. An engineering company helped create the Certified Survey Map (CSM).  The initial draft of the CSM reserved both the 9.5-acre and the 3-acre parcels as “Future Wisconsin D.O.T. Right-of-Way.”  The Kenosha County Land Use Committee approved the CSM without any conditions or communications regarding land dedication for public use.

In 2008 when Somers recorded their final CSM it dedicated the 9.5 acres as “Road Dedication for Future Highway Purposes,” and the 3 acres as “a road reservation for potential future state highway purposes.” All parties agree that Somers never intended to dedicate land for the highway project and that none of the governmental bodies involved had required or asked for a dedication. Individuals involved with drafting and signing the CSM stated that they do not know how the “dedication” language wound up in the document.  The State thereafter built a frontage road and on-ramp on the two parcels without compensating Somers, relying on the “reservation” and “dedication” language in the CSM to give it a right to the property without any requirement to pay Somers for the land taken. Somers filed a complaint seeking just compensation for their land. The court ordered the state to pay Somers $500,000 plus attorney fees, costs and interest. The state appealed this decision.

The Fifth Amendment of the US Constitution and Article I section 13 of the Wisconsin Constitution prohibit the taking of land without just compensation. The state relied on Wis. Stat. §236.29(1) which states, ““[w]hen any plat is certified, signed, acknowledged and recorded as prescribed in this chapter, every donation or grant to the public … marked or noted as such on said plat shall be deemed a sufficient conveyance to vest the fee simple of all parcels of land so marked or noted.” However, for the state to rely on this statute the land must be dedicated according to proper procedure under Wis. Stat. §236.34(1m)(e), which require a local governing board to approve the dedication in the CSM. No governmental board involved in Somers’ development approved any road dedication or land grant for inclusion in the CSM; therefore, the CSM lacked the force and effect required to convey the property to the State.

The court went on:  “Undeterred by the evidence that no dedication was ever intended or approved, the State proffers the absurd argument that it can still take Somers’ property without compensation as it was entitled to rely on an invalid dedication in a CSM.”

When a court leads by calling an argument “absurd” you can anticipate the results….

The court found no legal dedication, and therefore found that the state owes just compensation to the Somers.

 

 

 

 

 

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All states in designated non-attainment area must include Reasonably Attainable Control Measures and Technologies in State Implementation Plans (acronyms omitted!)

hdankbar

by Hannah Dankbar

Sierra Club v Environmental Protection Agency
Federal 6th Circuit Court of Appeals, March 18, 2015

In 2011 the EPA reported that the Cincinnati-Hamilton metropolitan area attained national air quality standards for particulate matter. A regional cap-and-trade program helped the area reach this standard. The EPA gave the area “attainment” status, even though the three States that administer its pollution controls never implemented the provisions known as “reasonably available control measures” (RACM) that apply to nonattainment areas. Sierra Club filed a complaint against the EPA for acting illegally.

The Clean Air Act (CAA) allows the EPA to add different kinds of emissions that can damage public health to the National Ambient Air Quality Standards. When an emission is added to this list each state must submit a State Implementation Plan (SIP) for achieving the standard. After receiving the plan the EPA will designate areas in each state as “attainment areas” (areas that attain the standard), “nonattainment areas” (areas that do not) or “unclassifiable areas”. If a state has “nonattainment areas” the state, or states, must revise their plan to meet additional requirements. One requirement is “RACM”, or “RACT”, which requires that the SIP “provide for the implementation of all reasonable available control measures (RACM) as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, or reasonably available control technology (RACT) and shall provide for attainment of the national primary ambient air quality standards.” Id. 7502(c)(1). There are five conditions that must be met in order for the EPA to switch a “nonattainment area” to an “attainment area.”

To address areas of concern along state lines, the EPA created a cap-and-trade system. A “cap” is set on allowable emissions; anybody who has emissions above this limit can either invest in clean technology or “trade” emission credits with another entity.

Sierra Club argued that the improvement in area quality that could be attributed to the cap-and-trade program was not “permanent and enforceable reductions in emissions” required under the CAA, and that the nonattainment State Implementation Plan (SIP) had never been implemented. The State of Ohio and the local utility company joined the EPA in disagreement. The EPA claims that Sierra Club does not have standing in this matter and they challenge the interpretation of the CAA.  After addressing the standing questions (it was determined that the Sierra Club did have standing) the court addressed the CAA interpretation argument.

Sierra Club first questioned EPA’s interpretation of a provision of the CAA that bars redesignation to attainment unless “the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions[.]” Sierra Club claimed that the cap-and-trade system is not “permanent and enforceable” because a company could simply buy more credits from polluters outside the nonattainment area and increase their emissions. Sierra Club wanted “permanent and enforceable reductions in the nonattainment area”. The EPA acknowledged that the statute does not clarify from which area the reduction comes from. The court decided that the statute is “sufficiently ambiguous” to clear the first part of the test.

In the question of whether the EPA’s interpretation is a permissible construction of the statute, they found that this rested on the acknowledgement of regional problems. The EPA acknowledged that the pollution is a regional problem. The court did not see the word ‘permanent’ as being sufficient enough to close cap-and-trade programs. Neither Congress nor Sierra Club offered a definition of enforceable. From the statute it does not appear that Congress intended cap-and-trade programs to be excluded. This is enough to conclude that their focus is “sufficiently rational” and within the statutory limits and blocks the warrant for deference to their technical expertise.

Sierra Club challenged EPA’s approval of the state’s SIPs without RACM/RACT. Indiana and Ohio did not have these provisions in their plans. A state seeking redesignation “shall provide for the implementation” of RACM/RACT, even if those measures are not strictly necessary to demonstrate attainment. If the State has not done so, EPA cannot “fully approve” the area’s SIP, and redesignation to attainment status is improper.

Because the Ohio and Indiana SIPs for their respective portions of the Cincinnati-Hamilton area did not provide for RACM/RACT, the EPA acted in violation of the CAA when it approved those redesignation requests. The court ordered the EPA to reject the redesignation of Ohio and Indiana’s portions of the Cincinnati-Hamilton area, and leave the Kentucky area as was originally defined.

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Nonconforming use provision preventing re-leasing of mobile home park lot when tenant leaves found unconstitutional

Gary Taylor

by Hannah Dankbar

State ex rel. Sunset Estate Properties, LLC v. Village of Lodi
Ohio Supreme Court, March 10, 2015

Sunset Properties, L.L.C. and Meadowview Village, Inc. both own property in the village of Lodi where they operate mobile-home parks. Both of the properties are in R-2 zones, which do not allow for mobile-home parks. The mobile-home parks were established before establishing the zone as an R-2 zone, so they are considered legal nonconforming uses under R.C. 713.15.

In 1987 the village of Lodi passed Lodi Zoning Code 1280.05(a), which reads;

Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evidence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further use shall be in conformity with the provisions of this Zoning Code. In the case of nonconforming mobile homes, their absence or removal from the lot shall constitute discontinuance from the time of absence or removal.

This ordinance is specific towards each individual mobile home; meaning that when a tenant leaves a mobile home and the lot stands vacant for more than six months, Lodi will not reconnect water and electrical service for the new tenant. This results in the mobile home park owners not being able to rent these lots and essentially losing their property. The property owners claim that this ordinance is unconstitutional on its face.

The property owners claim that this ordinance violates the 14th Amendment of the United States Constitution and Section 16 Article 1 of the Ohio Constitution. these clauses provide that no person shall be deprived of life, liberty or property without due process of law. In Akron v Chapman the Ohio Supreme Court held, “Zoning ordinances contemplate the gradual elimination of nonconforming uses within a zoned area, and, where an ordinance accomplishes such a result without depriving a property owner of a vested property right, it is generally held to be constitutional.”  The state and local governments have wide reaching powers to regulate land use, but that power is not unlimited.

The last sentence of the ordinance deprives the owner of the ability to use the property that was considered legal before the adoption of this ordinance. Even though the mobile home tenant is the one who makes the decision to leave, the park owner is the one who loses their property right to use their entire property in a way that was legal before the adoption of this ordinance. This deprivation trumps Lodi’s goals of promoting development and protecting property values. All other parts of this ordinance are constitutional, it is only the last part that cannot be applied.

The dissenting opinion argues that there are non-constitutional issues in this case that can be addressed to resolve this case without making constitutional claims. The property owners claimed that the ordinance conflicted with state law. The majority found the ordinance ambiguous as to whether Lodi would classify the individual lots as nonconforming uses. The dissent argued that this issue should have been addressed and decided before the constitutional issue.

 

 

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News from Nebraska: Livestock siting bill, significantly amended, moves forward

Gary Taylor

The Nebraska Legislature’s attempt to create uniformity in the livestock permitting process, first discussed here, is advancing as a result of compromise language.  Under the bill, a panel of experts appointed by the State Department of Agriculture would develop a matrix that county officials could use to determine whether to approve a livestock operation. LB106 passed its first reading on a 32-3 vote to advance, however, by removing language that made state livestock siting regulations mandatory for elected county officials. It would be up to individual county boards to decide whether to use the state standards.

Most of the senators who opposed the original bill said it substantially reduced local control over where to allow major livestock facilities. Livestock industry groups that support the bill say uniform standards on setbacks, odor control and other requirements would make the state more attractive to livestock producers.

An article from the Omaha World-Herald is here.

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