Sioux Falls, SD slaughterhouse proposal gives me an excuse to talk about zoning by initiative and referendum

Gary Taylor

In South Dakota, the people have a right to propose or refer legislation at the state and also local government levels through initiative (propose new legislation through direct public vote) and referendum (put a recent legislative action up for public vote to accept or reject).

Legislative power–Initiative and referendum. The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum….This section shall apply to municipalities….

South Dakota State Constitution, Article III, Section 1

Sioux Falls City Charter Section 6.03 expressly reserves the powers of initiative and referendum to the citizens.

In September of 2021, Wholestone Farms announced their intent to build a $500 million-plus pork processing plant on a 170-acre parcel of land in northeast Sioux Falls. Soon after the announcement, an opposition group emerged seeking to halt construction of the plant. Smart Growth Sioux Falls objected to building a slaughterhouse inside the city limits. The group gathered the required signatures to have the voters of Sioux Falls weigh in on whether the city should prohibit future slaughterhouses in Sioux Falls city limits. The question is on the November 8 ballot. If approved by the voters the following language would be added to the city’s code of ordinances:

Notwithstanding any other provision of this Code to the contrary, no new Slaughterhouse may be constructed, or be permitted to operate, within the city limits.

This section does not apply to any existing Slaughterhouse constructed and operating before the effective date of this section. This section does not apply to the expansion or alteration of any Slaughterhouse constructed and operating before the effective date of this section so long as such expansion or alteration occurs at the existing site.

Governor Noem has weighed in, saying that the ballot measure was bad for business and that “at the last minute one person(1) can get mad, do a ballot petition and end my business and my investment.” The Sioux Falls Chamber of Commerce also opposes the measure and states its reasoning here.

Iowa does not allow zoning questions to be put to the people through either initiative or referenda, but a number of other states do and this South Dakota situation gives me an excuse to visit the topic. Referenda are commonly used to call for voter review of legislative actions such a rezoning or a major change to the ordinance. Administrative or quasi-judicial actions – such as conditional uses, variances, and staff decisions – are not subject to referendum, although the line between legislative and administrative decisions is well-known to get messy.

Would we be better off in Iowa if “ballot box zoning” were possible? From a policy perspective the availability of initiative and referendum for zoning matters is controversial. Proponents support ballot box zoning as the most direct expression possible of residents’ wishes for how their communities should grow and thrive. Opponents are concerned that such measures undermine planning, block needed reforms such as increased residential density and fair housing, and violate the due process rights of property owners (see the Sioux Falls Chamber’s policy position).

Zoning initiative and referenda have been the subject of a wide variety of state court cases. They focus on the validity of the ballot box process when a state’s zoning statutes define a process for notice and hearing, when individual referenda appear to conflict with state mandates for fair housing, when referenda appear to conflict with state statutes and/or caselaw requiring consistency with a comprehensive plan, and other issues. The US Supreme Court has weighed in on federal constitutional questions related to zoning referenda twice. In City of Eastlake v. Forest City Enterprises (1976) the majority opinion supported zoning referenda as giving “citizens a voice on questions of public policy” when it dismissed the developer’s contention that the referendum violated due process as a standardless delegation of legislative power to voters. The Court’s majority stated that the Ohio Constitution contemplated a reservation of the power of referendum by the people, and was not a delegation of power to them. The dissent asserted that the “‘spot’ referendum technique appears to open disquieting opportunities…to bypass normal protective procedures for resolving issues affecting individual rights.”

In City of Cuyahoga Falls v. Buckeye Community Hope Foundation (2003) voters petitioned to place site plan approval for a low income housing complex on the ballot. At city council meetings and independent gatherings, some of which the mayor attended to express his personal opposition to the site plan, residents voiced concerns that the development would cause crime and drug activity to escalate, that families with children would move in, and that the complex would attract a population similar to the one on Prange Drive, the City’s only African-American neighborhood. Voters rejected the site plan at the ballot box, and the Court rejected the developer’s Equal Protection challenge to the results. The Court affirmed previous holdings that “[S]tatements made by private individuals in the course of a citizen-driven petition drive, while sometimes relevant to equal protection analysis…do not, in and of themselves, constitute state action for the purposes of the Fourteenth Amendment….[R]espondents put forth no evidence that the ‘private motives [that] triggered’ the referendum drive ‘can fairly be attributed to [city government].”

In fact, by adhering to charter procedures, city officials enabled public debate on the referendum to take place, thus advancing significant First Amendment interests. In assessing the referendum as a “basic instrument of democratic government,” …we have observed that provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.

City of Cuyahoga Falls v. Buckeye Community Hope Foundation, 538 U.S. 188, 196 (2003)

(1) Over 6,000 petition signatures were in fact required for the measure to appear on the November ballot.

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Intent must be “clear and unequivocal” to result in dedication of land to the public

Gary Taylor

by Gary Taylor

McNaughton v. Chartier and the City of Lawton
Iowa Supreme Court, June 24, 2022

In 1999 McNaughton entered into an easement agreement with the Chartiers to allow a small part of a road to pass through McNaughton’s property. The road was used to access the Chartiers’ business from Highway 20, and the dedication amounted to a 23’ x 80’ strip. The agreement provided that it was a “‘private’ easement granted for the use and benefit of the parties . . . and [was] not to be construed as an easement for the use and benefit of the general public.”

Shortly thereafter the city of Lawton paved and completed other improvements to the access road (now Char-Mac Drive). The paved portion covers 13’ x 60’ of the easement. During the early 2000s the city repeatedly asked McNaughton to dedicate the paved portion to the city but McNaughton refused. The reason he gave was that the city failed to maintain the paved portion of the easement. Language was included in the agreement between McNaughton and the Chartiers that the Chartiers “shall be obligated to take all action necessary to ensure that the town of Lawton becomes contractually obligated to maintain the easement area….” It is unclear whether this happened, but McNaughton testified that the city removed snow only a few times and generally failed to maintain the road.

When the Chartiers sold their property, they discovered that McNaughton had never recorded the easement agreement with the county. The Chartiers asked McNaughton to sign a Clarification of Easement essentially assigning the easement to the purchasers and offered him $15,000 but he refused, and thereafter made various escalating offers ($100,000, then $160,000, then $410,000, then in exchange for 50 acres of farmland) to the Chartiers to either sign the easement or sell his entire property. They refused. McNaughton sued, claiming purchaser had no rights under the easement because of failure to assign them.

The District Court found McNaughton had “dedicated the concrete portion of the easement to the City” because, among other things, the public had used the easement as the parties had agreed and because McNaughton had “never attempted to restrict the use of the concrete portion of the easement area.” Alternatively, the district court found that the easement was appurtenant to the Chartier’s property and passed to the purchaser upon sale. The Court of Appeals disagreed with both conclusions of the district court, as did the Supreme Court.

The Supreme Court observed that a grantor’s intent to dedicate land to the public for public use must be clear and unmistakable, and must be accomplished through “deliberate, unequivocal, and decisive acts and declarations of the owner, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use.” “Mere permissive use of a way, no matter how long continued, will not amount to a dedication.” The Court found that the language in the original agreement; that the easement was “not to be construed as an easement for the use and benefit of the general public” established just the contrary. Furthermore, language in the easement that “[t]he easement rights granted herein may not be assigned by Chartier to any other party or parties without the express written consent of McNaughton or his successors or assigns” served to negate the district court’s conclusion that the easement passed to the purchasers upon sale.

The specific language in an easement must be given effect. McNaughton wins.

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Was the end of single-family zoning in Minneapolis the “end the American way”? Bloomberg writer concludes “no”

Gary Taylor

Bloomberg writer Justin Fox recently posted an opinion piece on what has happened to housing in Minneapolis since December 2018, when the city council, through its Minneapolis 2040 plan, voted to allow duplexes or triplexes or reconfigure and expand existing houses to add one or two dwelling units by right on the roughly 70% of the city’s land where only detached single-family houses had been allowed. His analysis concluded that, at most 97 new units have been allowed because of this change. To place this in context, the city permitted 2,317 new housing units in the first half of 2022 alone. Almost all of the new housing in Minneapolis has been in structures of 5 or more units. Minneapolis was building at a similar pace before Minneapolis 2040 began to take effect — and the highest-profile element of the plan, the end of single-family zoning, is responsible for only about 1% of the new units permitted since January 2020.

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Flag policy catches City of Boston flapping in the breeze

Gary Taylor

by Gary Taylor

Shurtleff v. City of Boston
United States Supreme Court, May 2, 2022

For years, Boston has allowed groups to hold ceremonies on the plaza in front of city hall, during which participants may hoist a flag of their choosing on a flagpole in place of the city’s own flag and fly it for the duration of the event, typically a couple of hours. Between 2005 and 2017 groups raised at least 50 different flags for 284 such ceremonies, including flags from other countries, flags honoring EMS workers, the Pride Flag and others.

Shurtleff, director of a Christian group, wanted to hold a ceremony to celebrate the civic and social contributions of the Christian community, and raise the “Christian flag”: a red cross on a blue field against a white background. Until Shurtleff’s application, the city had never denied a request to fly a flag. No written policies existed outlining what groups could or could not participate, or dictating the contents of the flag, and city employees did not ask to see the flag before the event. The application itself only asked for contact information and a brief description of the event.

City officials found no record of ever allowing a religious flag to be raised in the past. Because of concerns that flying the ”Christian flag” would violate the Establishment Clause of the First Amendment, officials told Shurtleff that his group could hold the event, but could not raise the flag. Shurtleff challenged the denial of the flag-raising in federal district court, contending that it violated is right to free expression under the First Amendment. The district court sided with Boston, and the First Circuit Court of Appeals agreed.

The United States Supreme Court did not. It observed that, generally speaking, flags’ contents, presence, and location have long conveyed governmental messages. The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In these situations a Court must conduct a “holistic inquiry” into whether the government intends to speak for itself or, rather, to regulate private expression. Among the factors to consider in this inquiry are the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression. As noted above, other than day, time and location, Boston exerted little control over the expression. The lack of meaningful involvement in the selection of flags or their messages means the flag-raising event is not “government speech,” and flying the flag for a short period of time does not constitute government promotion of a particular religion; therefore, the Establishment Clause of the First Amendment was not implicated. However, Boston’s refusal to let petitioner fly his flag did violate the Free Speech Clause of the First Amendment as it was ”impermissible viewpoint discrimination” that “abridged [Shurtleff’s] freedom of speech.”

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Iowa Supreme Court backtracks on constitutionality of right-to-farm law

Gary Taylor

by Gary Taylor

Garrison v. New Fashion Pork, LLP
Iowa Supreme Court, June 30, 2022

Iowa Code 657.11 provides statutory immunity to animal agriculture producers against nuisance suits, commonly called Iowa’s “right-to-farm” law. Section 2 allows neighboring landowners to bring successful nuisance suits against such producers only if the producer fails to comply with state and federal regulations applicable to animal feeding operations, or if (1) the producer’s operation unreasonably and for substantial periods of time interferes with the person’s comfortable use and enjoyment of the persons life and property, and (2) the operation failed to use existing prudent generally accepted management practices reasonable for the operation. In 2004 in the case of Gacke v. Pork Xtra, Iowa Code 657.11 was ruled unconstitutional by the Iowa Supreme Court as applied to the facts of that case. Somewhat unusually, the Court did not base its ruling in Gacke on a Takings analysis, but rather on the Inalienable Rights clause of the Iowa Constitution (Article I, Section 1). It states:

All men and women are, by nature, free and equal, and have certain inalienable rights-among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

Iowa Constitution, Article I, Section 1

In 1972, Gordon Garrison purchased approximately 300 acres of farmland in Emmet County. He lives on the property in a home built in 1999. He at one point owned a 500-head ewe flock and could have over 1,000 animals on his property each birthing season. The sheep were kept in a barn most of the winter. After the 1980s, the size of his flock began to decrease. Some of his land continues to be farmed, but most of his acreage “is being cared for in restoration of the ‘Prairie Pothole’ ecology that was indigenous to northwest Iowa.”

In December 2015, New Fashion Pork (NFP) started operating a confined animal feeding operation (CAFO) uphill and adjacent to Garrison’s property. NFP’s subsidiary, BWT Holdings, owns additional land adjacent to Garrison’s property for disposal of manure. The confinement building is approximately a half-mile away from Garrison’s property line and is permitted to hold 4,400 to 8,800 hogs depending on their weight. The defendants put pattern tiling in the BWT property, which Garrison claims led to substantially more drainage flowing to his property. According to Garrison, in the fall of 2016, NFP’s “manure application was done when the field was saturated with water so the field could not absorb the manure and the manure discharged to [his] property.” In December 2018, NFP applied manure to frozen ground in violation of state regulations. The Iowa Department of Natural Resources entered a consent order under which the defendants paid an administrative penalty of $4,800 for that violation. From 2016 to 2020, Garrison documented the times that he smelled the CAFO’s odor – more than 100 days of the year, sometimes all day. The odor interferes with his enjoyment of working outdoors, going on walks around his property, and his sleep. His son confirmed the odor can be very pervasive depending on the wind direction.

The relevant portion of this lengthy opinion is the Supreme Court’s discussion, and ultimate overruling, of its own decision in Gacke. It began by noting that Gacke is an outlier. All fifty states have right-to-farm laws that provide farmers with various forms of statutory immunity from nuisance claims similar to section 657.11(2); however, Iowa is the only state to hold that the statutory immunity available under its right-to-farm law is unconstitutional in any manner. Gacke created a three-part test to determine whether a neighboring landowner could avoid the nuisance immunity protections offered by section 657.11(2): whether the plaintiffs can show they (1) received no particular benefit from the nuisance immunity granted to the agricultural operation other than that inuring to the public in general, (2) sustained significant hardship, and (3) resided on their property long before any animal operation was commenced. If the neighboring landowners were able to prove all three factors then they will have demonstrated that the law’s grant of immunity violated their inalienable rights granted by the Iowa Constitution.

After a review of caselaw from Iowa and other jurisdictions the current Iowa Supreme Court determined that the three-part test in Gacke was “created out of whole cloth,” engenders unnecessary litigation and is difficult to administer, and must be overruled. “Stare decisis does not prevent the court from reconsidering, repairing, correcting or abandoning past judicial announcements when error is manifest . . . and stare decisis has limited application in constitutional matters.”

Rather than apply the three-part test, the appropriate analysis under an inalienable rights claim is to determine whether there was a “rational basis” for the enactment of Section 657.11(2). The rational basis test is “highly deferential” to governments’ actions: the litigant challenging the local government action “must refute every reasonable basis upon which the statute could be found to be constitutional.” In the present case the Court determined that a rational basis exists for the legislature to promote farming, and that reducing nuisance liability is a proper means to that end.

Turning to the facts of this case, because Garrison relied solely on the constitutional argument at trial he presented no witnesses, expert or otherwise, to testify as to the prudence or general acceptance of any farm management practices, or to set a standard as to existing generally accepted management practices. He failed to identify any alternative technologies and approaches that would be considered “existing prudent generally accepted management practices.” Likewise, he identified no evidence that Defendants departed from any standard industry practices. He therefore failed to meet his burden of proving that he qualified for any of the exceptions to the nuisance immunity protection of 657.11.

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US. Supreme Court upholds distinction between on- and off-premises signs

Gary Taylor

by Gary Taylor

City of Austin, TX v. Reagan National Advertising of Austin
United States Supreme Court, April 21, 2022

The city of Austin, Texas regulates off-premises signs differently than on-premises signs. At the time this dispute arose Austin’s sign code prohibited construction of new off-premises signs. Existing off-premises signs were grandfathered, but could not be altered in ways that increase their non-conformity. Reagan National Advertising (RNA) sought permits to digitize some of its billboards and was denied. RNA sued, claiming the differential treatment of off-premises signs from on-premises signs (on-premises signs were allowed to be digitized) violated the First Amendment. The District Court held that Austin’s code provisions were content neutral under Reed v. Town of Gilbert and therefore did not violate the First Amendment. The Fifth Circuit Court of Appeals found the distinction to be content-based because the sign’s message must be read to determine the distinction between on- and off-premises signs, and therefore did violate the First Amendment. Austin appealed to the U.S. Supreme Court.

The Supreme Court ruled that the on- versus off-premises distinction was facially content neutral and therefore did not violate the First Amendment. Reed held that a regulation of speech is content based if it “targets speech based on its communicative content”; that is, if it applies to particular speech because of the topic discussed or the idea or message expressed. The Fifth Circuit’s interpretation of Reed – that a sign regulation cannot be content neutral if you have to read the sign to understand how to regulate it – is “too extreme” an interpretation. Unlike Reed, Austin’s sign code does not single out any topic or idea expressed for differential treatment; the message matters only insofar as it informs the sign’s location. In this respect, the on- vs. off-premises distinction is more like ordinary time, place or manner restrictions, which do not require the application of the strict scrutiny standard. Furthermore, the Supreme Court has previously validated distinctions between on- and off-premises signs as being content neutral. Reed did not overrule those cases.

Justice Thomas authored a dissent joined by Justices Gorsuch and Barrett. He asserted that the Fifth Circuit correctly interpreted Reed. The Austin code discriminates against certain signs based on the message they convey. This is not changed because the restriction depends on a content neutral factor: the sign’s location. A code enforcement official must not only know where the sign is located, but also what it says.

Suppose a sign [in a storefront window] says “Go To Confession.” After examining the sign’s message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign conveys a permissible “on-premises” message. If not, the sign conveys an impermissible off-premises message.

Justice Thomas contends that the majority “misinterprets Reed’s clear rule for content-based restrictions and replaces it with an incoherent and malleable standard.”

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I’m back

Gary Taylor 2 Comments

Over seven years ago I took my administrative position in ISU Extension and Outreach. To lend some perspective, the last time I was able to regularly post to the BLUZ:

  • The automatic transmission had just been invented
  • My kids had just started high school. They are about to graduate from college.
  • Saturday Night Fever was #1 at the box office
  • Mozart had just composed Don Giovanni
  • Nebraska was still relevant in football

I may not have all these dates exactly correct, but nonetheless I am now I’m back in the Community and Regional Planning department, once again teaching and providing outreach to communities in Iowa. I can’t cover 7+ years of lost cases, but I’ll start by grabbing some from the last few months that seem important.

Is anybody still out there reading this?

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2021 Intro to Planning and Zoning Workshops

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To allow the greatest number to participate, our Spring 2021 workshops will be offered virtually. Hopefully we’ll see you on the road next year!

Registration is open for the following workshops. To register click on the link next to the date on which you would like to attend.

The cost to participate is $45 per registrant or $35 each if a city or county registers five or more. Workshops are limited to 50 participants.

February 16: 1pm – 4 pm – http://bit.ly/pz17388

February 22: 1pm – 4 pm – http://bit.ly/pz17388

March 1: 5:30pm – 8:30 pm – http://bit.ly/pz17408

March 4: 5:30pm – 8:30 pm – http://bit.ly/pz17410

March 11: 1pm – 4 pm – http://bit.ly/pz17410

Participation will require a computer with a strong internet connection, but all interaction will take place through chat and interactive questions on the screen. No microphone or camera are necessary for participation. We will send you the link for participation the day before your scheduled workshop and you will have access to a recording of the presentation for one month after the date of the workshop.

Registration will close the day before the workshop. But, if possible, please register at least one week in advance as we will be mailing the workbooks to you so you can follow along and take notes as we move through the presentation. If you register less than a week before the workshop you will still receive a notebook, but it may be after the workshop.

In addition, we can conduct an online workshop tailored to an individual community upon request.

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2020 Legislative Changes Impacting Planning and Zoning in Iowa

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By: Eric Christianson

In addition to the changes to county zoning, discussed in this post, brought about by HF 2512 and HF 2477. There were a number of other legislative changes this past session. These include limitations on the ability of cities or counties to regulate: short-term rentals, shooting ranges and ammunition storage, cell tower siting, and food stands operated by minors.

Short-term rental regulation preemption

HF2641 adds a definition of “short-term rental property” to Iowa Code and places restrictions on the ability of cities and counties to regulate properties managed as short-term rentals. Essentially, short-term rentals are any dwelling that, “is offered for a fee for thirty days or less.” Cities and counties are required to consider property managed as a short-term rental a residential land use.

Local governments may not prohibit, require a license or permit, or charge any fee for short-term rental property. It also prevents cities and counties from adopting, “any regulation, restriction, or other ordinance… relating to short-term rental properties.” There are a handful of exceptions to this allowable only, “if enforcement is performed in the same manner as enforcement applicable to similar properties that are not short-term rental properties.”

Regulation of weapons, shooting ranges, and ammunition

HF 2502 contain a number of restrictions on local governments relating to the regulation of firearms.

The major change to city and county zoning enabling legislation says that in approving the use, establishment, or expansion of a shooting range, the city or county zoning commission may apply and enforce zoning regulations, but may not require compliance with “any conditions… that are more stringent than those imposed by state law.” In cases where there is no zoning commission, then this applies to the city council or county board of supervisors.

A notable element of this addition is that it implies that the zoning commission, an advisory body to the city council or county board of supervisors, is responsible for the application and enforcement of zoning regulations when applied to shooting ranges.

Additionally, local governments may not regulate the storage of weapons or ammunition. There are other restrictions on local governments in this bill, which have little impact on land use regulation.

Extension of the Iowa Cell Citing Act

The Iowa Cell Citing Act, HF 487, passed during the 2019 legislative session requires local permitting authorities to accept an application for a cell tower if the proposed tower is:

  • In an unincorporated part of a county with <15,000 population
  • Not on land used for single family housing
  • Not within a designated area of historical significance
  • Tower will be part of the nationwide public safety radio network

The act was originally passed in response to a specific denial of a permit for a cell tower in Allamakee County in 2018 and was set to expire July 1, 2022. SF 2196 adopted this year extends the act through July 1, 2025.

Regulation of food stands operated by minors

HF 2238 makes it so that state and local governments may not require a license, permit, or fee for temporary food stands on private property operated by minors. The exceptions to this are foods that require time/temperature control for safety purposes or alcoholic beverages.

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Introducing Monthly P & Z Workshops Online

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In addition to our in-person workshops that will be held Spring 2021 if conditions allow, we now will offer online workshops on an ongoing basis.

The cost to participate is $45 per registrant or $35 each if a city or county registers 5 or more. The dates and times for these workshops are:

To register click on the date that you would like to register for. New dates will be added three months in advance. In addition, we can conduct an online workshop tailored to an individual community upon request.

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