Tag: Federal 8th Circuit

Co op days shy of being able to claim adverse possession

vaagea

by Andrea Vaage and Gary Taylor

Quality Ag Service of Iowa Inc. v. Burlington Northern Santa Fe Railway
Federal 8th Circuit Court of Appeals, October 30, 2015

At issue is the ownership of a sidetrack adjacent to two Burlington Northern Santa Fe Railway (BNSF) tracks running through Melrose, Iowa. Quality Ag of Iowa purchased land on August 25, 2000 from Farmers Coop, which purchased land from BNSF in 1994.  The sale did not include the sidetrack adjacent to the purchased parcel; however, Quality Ag has used the sidetrack to receive fertilizer shipments since 2000. On August 3, 2010, one of BNSF’s trains derailed east of the sidetrack. BNSF used the sidetrack to store equipment after the derailment, preventing Quality Ag from using the sidetrack for fertilizer shipments. Instead, Quality Ag was forced to truck fertilizer in at increased expense.  Quality Ag sued BNSF for damages due to the increased cost of delivery, and property damages resulting from the derailment.  The claim was dismissed and an appeal ensued.

Quality Ag’s owner testified that he believed the sidetrack was part of the land purchased from Farmers Coop because a Farmers Coop representative told him that it did at the time of the sale. He also testified that BNSF entered into a written agreement with Quality Ag that BNSF could use the sidetrack if BNSF maintained it; however, the owner was unable to produce this agreement for trial. Conversely, BNSF was able to produce a land survey showing they owned the sidetrack. On appeal, Quality Ag raised the claim that it owns the sidetrack due to adverse possession.

In order to prove a claim of adverse possession a party must “establish hostile, actual, open, exclusive and continuous possession, under a claim of right or color of title, for at least a ten year period.” Quality Ag would need to establish that it met those conditions from August 25, 2000 to August 25, 2010. Since BNSF used the track for equipment storage on August 3, 2010 and beyond, after the derailment, Ag Services failed to show continuous sole use for a full ten year period.  The maintenance agreement claim also failed because Quality Ag was unable to produce the maintenance agreement or othershow it owned the sidetrack.

The decision of the district court was affirmed.

http://media.ca8.uscourts.gov/opndir/15/10/143025P.pdf

 

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Fear about dangers in the vicinity of property insufficient to constitute nuisance

vaagea

by Andrea Vaage

Smith & Wunderlich v Conoco Phillips Pipe Line Company
Federal 8th Circuit Court of Appeals, September 15, 2015

Conoco Phillips owns a pipeline constructed in 1930 that runs through part of West Alton, a small town in Missouri. A leak was discovered near the town in 1963. The source of leak was repaired, but no remediation efforts were made to clean up the spill. Contaminants from the spill were discovered at a residence near the spill in 2002. Phillips purchased that residence and two others. Under supervision of the Missouri DNR, the buildings were demolished; 4,000 cubic yards of soil was removed; and monitoring wells were set up to test for chemicals of concern (COCs) such as benzene, toluene, ethyle benzene, xylenes, and lead.

Plaintiffs, the Smiths and Wunderlichs, property owners within 1.1 mile radius of contamination site, filed a class action suit in district court October 2011. Their complaint identified two separate classes, each including property owners within a 1.1 mile radius of the contamination site. The first class sought injunctive relief and monetary damages for creation of a nuisance and negligence for remediation. The second class sought compensation for ongoing expenses of medical monitoring due to potential exposure to pollutants from the pipeline leak. The district court certified the first class, but not the second. In certifying the first class the court relied on evidence and expert testimony that contaminants were found in the monitoring wells, that pollutants could continually shift, and that MTBE, a gasoline additive, had been found at one residence one quarter mile away from the contamination site. Phillips appealed the court’s decision to certify the first class.

In cases of certification, the district court is granted broad discretion. A higher court will only reverse a certification where there has been an abuse of discretion or an error of law. Four standards must be met to certify a class: numerosity, commonality, typicality, and adequacy of representation.

In order for commonality to be met, the plaintiff’s must show that all class members suffered the same injury. The plaintiff’s demonstrated contamination by citing the MBTE found on the Wunderlichs’ property. However, there was no MBTE found at the contamination site. None of the chemicals found at the contamination site were detected at any of the class members’ property; however, plaintiffs’ claim that physical invasion is not required for the contamination site to be a nuisance, because the fear of contamination depressed their property values. The Court cited recent cases that establish that fear alone is not enough to meet the requirement that a nuisance be visible or capable of physical detection. “Negative publicity resulting in unfounded fear about dangers in the vicinity of the property does not constitute a significant interference with the use and enjoyment of land:  The potential for contamination does not amount to sufficient proof of a nuisance. Since plaintiff’s were unable to establish contamination on the class land, the nuisance claim fails.

The Court determined the fear of contamination without sufficient supporting proof was not enough to establish a claim for common law nuisance. The Court found the district court ruling certifying the class was an abuse of discretion. The case was reversed and remanded.

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Failure to make minutes available “essentially contemporaneously” with the decision under Federal Telecommunications Act was harmless error

Gary Taylor

by Gary Taylor

Smith Communications, LLC v. Washington County, Arkansas
Federal 8th Circuit Court of Appeals, May 12, 2015

In February 2013 Smith Communications applied for a conditional use permit (CUP) to build a 300-foot-tall cell tower in Washington County, Arkansas.  The property was zoned “Agriculture/Single-Family Residential,” and homes are located within 1/4-mile of the site.  The criteria for granting a CUP are those general considerations typical for most zoning codes (compatibility with surrounding area, no endangerment to public health or safety, not injurious to use and enjoyment of nearby properties, etc.). The Washington County Planning Board approved the CUP, but nearby residents appealed the decision to the Washington County Quorum Court [Note: apparently a body akin to a Zoning Board of Adjustment].  The Quorum Court met twice – June 4 and June 24, 2013 – and held extensive hearings. The residents in attendance focused on safety, nearby property values, the tower’s “fit” with the surrounding area, and the “destruction” of scenic views.  At the end of the June 24 meeting the Quorum Court voted 10-3 to reject Smith’s application.  Four days later the county sent Smith an email containing a letter of denial that stated, among other things, that “the minutes and video of the first and last Quorum Court meetings will act as the County’s written reason for denial.”  The minutes from the June 4 meeting were already available at that time; however, minutes from the June 24 meeting were not available until July 22.  Smith appealed to district court citing a violation of the Federal Telecommunications Act (FTA).  The district court determined that the county could not rely on the meeting minutes to constitute a legally adequate explanation for the denial under the FTA, ans so remanded the matter back to the Quorum Court with an order to explain the reasons for the denial in a writing separate from the minutes and written record.  The county did so on April 18, 2014, largely citing the reasons advanced by the neighbors.  The district court was satisfied with this, and so it was Smith appealing this ruling that brought the case before the 8th Circuit Court of Appeals.

Smith argued that under the district court’s authority to review FTA matters “on an expedited basis” the court should have simply “ordered the issuance of a permit” because the county had failed to provide an adequate written explanation for its denial.  The Court of Appeals rejected this reasoning.  It noted that in T-Mobile South the US Supreme Court recently held that “a locality may rely on detailed meeting minutes so long as the locality’s reasons are stated clearly enough to enable judicial review.”  Thus, contrary to the district court’s first ruling, the county did not violate the FTA by relying on the meeting minutes.

What about the fact that the minutes from the June 24 meeting were not available until July 22?  In T-Mobile South the Supreme Court also said that a local governments must provide written reasons for its denial “essentially contemporaneously” with the denial.  The Court of Appeals concluded that the minutes of the June 4 meeting, which were available at the time of the denial, captured essentially the same concerns as were articulated on June 24.  Representatives of Smith attended both meetings.  “In light of these facts and the record before use, Smith received adequate notice of the reasons for the Quorum Court’s denial….[The county’s] failure to promptly make the latter meeting minutes available was, at most, a harmless error,” and did not require the district court to order immediate issuance of a CUP.

The Court of Appeals also went on to determine, after thoroughly reviewing all of Smith’s contentions and the record as a whole, that substantial evidence supported the Quorum Court’s denial of the CUP application.  “Aesthetic concerns can be a valid basis on which to deny [a] permit, so long as the aesthetic judgment is grounded in the specifics of the case and not based on generalized aesthetic concerns…that are applicable to any tower, regardless of location.”

The district court decision favoring the county was affirmed.

 

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Ban on “profane discourse, rude or indecent behavior” near churches is impermissibly content based

Gary Taylor

by Gary Taylor

SNAP, Inc. v. Jennifer Joyce, Circuit Attorney for the City of St. Louis, et al
Federal 8th Circuit Court of Appeals, March 9, 2015

In 2012 the Missouri legislature enacted the House of Worship Protection Act.  It provides that a person commits the crime of disrupting a house of worship if he or she “intentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services.”  The Survivors Network of Those Abused by Priests (SNAP) is a non-profit organization that advocates for victims of sexual abuse by clergy.  Call to Action, Inc. is a non-profit organization that advocates for various changes in the Catholic Church, including the ordination of women, acceptance of gay, lesbian, and transgender people, and women’s participation as altar servers.  The members of both of these organizations (Plaintiffs) regularly meet near Catholic Churches to pray, hold signs and pictures, distribute literature, and attempt to communicate their messages to church personnel and parishioners.  Since the adoption of the Worship Protection Act members have been asked to move on, and have been threatened with jail by church ushers and parishioners; however, no plaintiff to the litigation has been arrested by Missouri officials, nor was evidence presented that plaintiff protesters have interfered in any way with churchgoers’ entry or exit from a house of worship.

Plaintiffs argued that their First and Fourteenth Amendment rights were violated by the Worship Protection Act.  They claimed that the Act chilled their expression and interfered with their ability to speak in public locations where their intended audience may be reached – church leaders, workers, and parishioners.  Defendants were granted summary judgment by the district court, and plaintiffs appealed to the 8th Circuit Court of Appeals.

The constitutionality of a restriction on speech depends in large part upon whether it is content based and thus “subject to the most exacting scrutiny,” or a content neutral time, place, or manner regulation subject to intermediate scrutiny.  The 8th Circuit focused on the Act’s ban on “profane discourse, rude or indecent behavior” in or near a house of worship and found that the ban is content based.  It noted that the US Supreme Court has stated that governments might “seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” It also noted that the “unreasonably disturbs, interrupts, or disquiets any house of worship” language is the type of language disapproved of by the Supreme Court, which has stated that “audience disapproval or general concern about disturbance of the peace does not justify regulation of expression….The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  The 8th Circuit contrasted a US Supreme Court case that upheld a Colorado ban on people within 100 feet of a healthcare facility from approaching within 8 feet of another person for the purpose of “passing a leaflet or handbill, displaying a sign or engaging in protest….” It noted that the Colorado statute was content neutral because it regulated “only the places where some speech my occur” in contrast to the Missouri statute which requires an inquiry into whether speech is “profane” or “rude.”

The Worship Protection Act could not survive the exacting scrutiny required of content based regulation.  “The existence of content neutral alternatives to protect houses of worship from disruption, such as noise regulations…casts considerable doubt” on the government’s assertion that such regulations are necessary to achieve the state’s asserted interest in protecting the free exercise of religion.  The district court’s summary judgment in favor of the government was reversed.

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Ten Commandments monument in Fargo ND does not violate First Amendment Establishment Clause

Gary Taylor

by Gary Taylor

Red River Freethinkers v. City of Fargo
(Federal 8th Circuit Court of Appeals, August 25, 2014)

A stone monument depicting the Ten Commandments, which was given to the City of Fargo by the Fraternal Order of Eagles in 1958, has been the subject of over a decade of litigation.  In addition to the Ten Commandments, the monument includes other symbols such as the American flag and the “all-seeing eye” atop a pyramid. In 1961, the monument was installed in its current location on the City Plaza, “a grassy, open area mall” on City property, where it sat without legal challenge for over forty years.  In 2002, the Red River Freethinkers sued the city seeking a declaration that the display of the Ten Commandments violated the Establishment Clause of the First Amendment to the US Constitution.  The federal district court found in favor of the city on the grounds that because of the purpose of the gift and the other secular symbols and messages on the monument “a reasonable observer could not perceive the city as adopting or endorsing the religious message of the display.” The court went further to state that “to exclude the request of a private organization, such as the Fraternal Order of Eagles, to engage in religious speech in a recognized forum on the sole grounds that their speech has religious content could arguably be a violation of their constitutional rights.”

Seizing on this language, the Freethinkers offered their own monument to the city with a request that it be placed near the Ten Commandments monument.  It was to be inscribed:

THE GOVERNMENT OF THE UNITED STATES OF AMERICA IS NOT, IN ANY SENSE FOUNDED ON THE CHRISTIAN RELIGION
From the Treaty of Tripoli, Approved Unanimously by the United States Senate, June 7, 1797. Signed by President John Adams
Presented to the City of Fargo by the Red River Freethinkers in recognition of the First Amendment right of every American to believe, or not believe, in any god

The city commission voted to reject the Freethinkers offer, and in order to avoid litigation further decided to donate the Ten Commandments monument to a private entity, who would then move it to a location off of city property.

This caused a stir. many opposed this decision, and a petition garnering more than 5,000 signatures required the commission to either adopt, or submit to a vote of the people, an ordinance that simply stated:

A marker or monument on City of Fargo property for 40 or more years may not be removed from its location on City of Fargo property.

The city adopted the ordinance and left the monument in place.  A month later, the city adopted a policy of not accepting any additional monuments for display on the City Plaza.  The Freethinkers sued again, claiming that the petition, and the city’s reaction to it, had made the monument impermissible under the Establishment Clause.  After jurisdictional issues were addressed, the district court granted summary judgment for the city.  The Freethinkers appealed to the 8th Circuit Court of Appeals.

The Court of Appeals applied the standard announced by the US Supreme Court (USSC) for evaluating “passive monuments.”  In that USSC case, a Ten Commandments monument stood for over 40 years on the Texas Capitol grounds alongside other (“17 monuments and 21 historical markers”) secular symbols.  The USSC found that the monuments represented the several strands in the State’s political and legal history,” and that “the monument had a dual significance, partaking of both religion and government.” The 8th Circuit found the Fargo monument to be identical to the Texas situation in every legally relevant way.  The Freethinkers argued that the Christian overtones to the petition movement changed public perception of the monument to one with a single religious message; however the Court of Appeals disagreed, noting that petitioners expressed both religious and secular reasons to retain the monument, and that the city commission cited the costs of a legal challenge and the importance of “embracing and tolerating all people” as the basis for its decision.  By adopting the petition, the city did not “necessarily endorse the specific meaning that any particular petitioner sees in the document.”  The Court of Appeals affirmed the district court and dismissed the Freethinker’s petition.

Judge Bye dissented.  After reciting other details of the history of the monument (including the then-mayor’s statement at the 1961 dedication ceremony that the monument “would be a constant reminder to one and all that Fargo shall go forward only as it respects and lives according to the principles of the Ten Commandments”), Justice Bye noted several distinctions between the Fargo monument and the Texas monument, including: (a) unlike the Texas monument, no other monuments share the Civic Plaza in Fargo, (b) the city now has adopted a policy that no other monuments may stand in Civic Plaza, (c) Civic Plaza is flanked on three sides by public buildings, and sidewalks from the entrances to those buildings directly intersect at the monument.  Judge Bye concludes from these facts that the city has rendered the Ten Commandments monument an “active monument” subject to a more stringent test, and that summary judgment in favor of the city was not appropriate.

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8th Circuit finally addresses “in writing” requirement of Federal Telecommunications Act

Gary Taylor

by Gary Taylor

NE Colorado Cellular v. City of North Platte
(Federal 8th Circuit Court of Appeals, August 22, 2014)

NE Colorado Cellular, dba Viaero Wireless (Viaero) filed an application to construct a cell tower in North Platte, Nebraska (City).  The application first went to the City’s planning commission.  the commission conducted a public hearing and received both live testimony and letters from property owners near the proposed tower site.  After the hearing,the commission issued a summary report recommending denial of the application because the tower would not be in harmony with the character of the area as required by the North Platte zoning code provisions concerning cell towers.  The commission provided this report to the city council.  The city council then conducted its own public hearing, where two people spoke in favor of the tower and twelve spoke in opposition.  The council voted 6-2 to deny the application.  The minutes of the council meeting included the finding that the proposed tower “does not meet the minimum standards stated in the [zoning ordinance]…based on the [finding] that the use is not in harmony with the character of the area and it is not the most appropriate use of the land as it is a historic neighborhood and the tower could decrease property values in the area.”

Viaero filed suit against the City, alleging that the decision was neither “in writing,” nor “supported by substantial evidence” as required by the Federal Telecommunications Act of 1996 (TCA).  The district court upheld the City’s decision, and Viaero appealed to the Federal 8th Circuit Court of Appeals.

In writing.  The interpretation of the TCA’s “in writing” requirement up until this time has been an open question in the 8th Circuit.  The 1st, 2nd and 9th Circuits require that a decision (1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.  The 6th Circuit does not require that the decision and record be separate writings as long as the record permits the reviewing court to “focus with precision on the action that was taken and the reasons supporting such action.”  The 4th and 11th Circuits consider the burden on local governments to be even lighter than that imposed by the other interpretations.  The 4th Circuit has noted that “Congress knows how to demand findings and explanations” and has not done so in the TCA.  Similarly, the 11th Circuit has stated that the decision and the bases thereof can be found in the transcript of the hearing and the minutes of the meeting in which the hearing was held; neither a separate written document, nor specific findings of fact are required.**

The 8th Circuit was persuaded that the 4th and 11th Circuits articulated the better rule.  The Court did not find anywhere in the text of the TCA where the denial and the written record be separate documents.  Likewise, the language of the TCA does not require that the written denial state findings of fact or the reasons for the denial.  “Congress may require an agency or board to state its findings.  Congress did not do so here.”

Supported by substantial evidence.  The Court began by noting that “the TCA’s ‘substantial evidence’ requirement does not impose substantive standards on local governments. Rather, it requires a reviewing court to determine whether the local authority’s decision comports with applicable local law….It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  The city’s ordinance requires that a tower “shall be in harmony with the character of the area and the most appropriate use of the land” in order to be approved.  The Court found that the city council had before it the testimony of a dozen residents that the proposed tower would be an “eyesore,” would be inappropriate for the neighborhood, and would not be harmonious with the neighborhood.  This, the Court concluded, was enough for a reasonable mind to accept as adequate to support a conclusion that the proposed tower would would not be in harmony with the neighborhood.

**Note:  The US Supreme Court has accepted the case of T-Mobile South, LLC. v. City of Roswell, 731 F.3d 1213 (11th Cir. 2013), cert. granted, 134 S.Ct. 2136 (2014) to resolve these differing interpretations.

 

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Attorneys cannot represent city, then property owners, in suit concerning quarry truck traffic

Gary Taylor

by Gary Taylor

Zerger & Mauer, LLP v. City of Greenwood
(Federal 8th Circuit Court of Appeals, May 30, 2014)

From 2006 to 2010 the city of Greenwood, Missouri and Martin Marietta Minerals were in a dispute over a rock quarry south of the city.  The dispute concerned truck traffic traveling in interstate commerce through Greenwood.  eventually, the parties entered into an agreement in which Martin paid Greenwood $7 million, and Greenwood agreed to designate Second Avenue for the truck traffic.  In the agreement, Greenwood declared that the truck traffic did not constitute a nuisance.  Greenwood had obtained a prior judgement in the case against Martin for $12 million; therefore, Greenwood was essentially making a $5 million concession so that it could designate the truck traffic route it deemed most beneficial.  Zerger and Mauer represented Greenwood throughout the dispute, receiving over $4 million in legal fees.

Subsequently in 2011, eighteen individuals who owned property along Second Avenue filed sued against Martin and others, seeking damages for a private nuisance among other claims.  Zerger and Mauer served as counsel for these plaintiffs.  Prior to the trial court’s resolution of the merits of the case, Greenwood – a non-party to the proceedings – moved to disqualify Zerger and Mauer from representing the property owners, arguing that the firm’s current representation constituted a conflict of interest.  In Greenwood’s view, Zerger and Mauer were advancing arguments that directly conflicted with Greenwood’s interests from the prior litigation.  The district court agreed and disqualified the law firm, which appealed to the Eighth Circuit Court of Appeals.  After settling a jurisdictional claim, the Court of Appeals examined the conflict of interest claim.

Missouri Rules of Professional Conduct for the legal profession outline the duties an attorney owes former clients:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

On the question of whether the city’s prior litigation with Martin was “substantially related” to the property owner’s suit, the court looked first to the commentary accompanying the above-cited rule of conduct. The commentary explains that matters are substantially related “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”  The court found it clear that the factual underpinnings of the two representations were nearly identical.  “Similarly, the legal issues central to both are substantially related, largely centering on the reasonableness of Martin’s conduct.  Although a private nuisance claim and a public nuisance claim may protect distinct rights, the legal theories are exceedingly intertwined.”  Given these conditions, the court found a “substantial probability – or at the very least a substantial appearance – that Greenwood disclosed confidential information related to the negotiations that the plaintiffs could use to their advantage.

Zerger and Mauer next asserted that their representation of the property owners was not “materially adverse” to Greenwood’s interests.  The firm argued that the declaration in the first settlement that the truck traffic is reasonable and not a nuisance involved a public nuisance and has no bearing on the property owners’ private nuisance claim.  The court rejected this, being “unpersuaded by Zerger and Mauer’s continued attempt to make public and private nuisances unrelated concepts….”  The court stated that the firm is advocating a position that contradicts a term in Greenwood’s settlement.  It is seeking to collect damages on behalf of the property owners “for Martin’s allegedly tortious use of Second Avenue – a path that Greenwood desires to reserve as the exclusive route for truck traffic.  Not only do [the property owners] have an interest in collecting substantial damages, they also naturally have an interest in otherwise disrupting Martin’s use of Second Avenue.”  The property owners’ overall interests are materially adverse to Greenwood’s interests, and as such Greenwood may demand that its former law firm not advocate for the property owners’ interests.  The Court of Appeals thus affirmed the district court’s disqualification of Zerger and Mauer from the second litigation.

 

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Content-neutral zoning ordinance that resulted in total ban on adult entertainment businesses deemed valid; alternative avenues of communication existed in other jurisdictions

Gary Taylor

by Gary Taylor

David Peterson and The Juice Bar, LLC v. City of Florence (MN)
(Federal 8th Circuit Court of Appeals, August 16, 2013)

Florence, Minnesota – a municipality in Lyon County – has a population of 39, and covers approximately 0.2 square miles.  It is home to sixteen single-family residences, a shop where Florence’s road equipment is stored, an unheated office that serves as the city office, and a park.

In 2008 the city adopted an ordinance prohibiting the operation of a sexually-oriented business within 250 feet of day cares, schools, parks, libraries, and any property zoned for residential use.  At the same time the city adopted a zoning ordinance that established three zoning districts (residential, commercial, and business) and zoned the entire city residential.  Sexually-oriented businesses were only permitted in the commercial district.

Peterson opened The Juice Bar in December 2010, which featured live, nude dancers.  The next day Peterson was charged with three misdemeanor counts for violating the sexually-oriented business ordinance, for operating The Juice Bar within 250-feed of a park.  Peterson filed suit against the city to enjoin the enforcement of the ordinance, for a declaratory ruling that the ordinance violated his First Amendment freedom of speech rights, and sought damages and attorney fees.  Shortly thereafter in 2011, the city repealed its sexually-oriented business ordinance in its entirety, and amended its zoning ordinance to eliminate the business and commercial districts, citing the city’s “limited infrastructure, staff, and resources” which could not support business or commercial uses.  The criminal case against Peterson was dismissed, but Peterson’s First Amendment suit continued; that is, until the district court dismissed the suit.  Peterson appealed the dismissal.

Peterson first argued that the 2011 zoning ordinance constitutes an invalid total ban on the operation of adult entertainment businesses in the city.  The 8th Circuit agreed that the zoning ordinance resulted in a total ban; however, this was not fatal to the ordinance because the ordinance prohibited an entire class of conduct – all commercial and business uses – not just adult entertainment establishments. “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” A content-neutral time, place, or manner regulation will be upheld if it is narrowly tailored to serve a substantial governmental interest and leaves open ample alternative channels for communicating the speech.  The Court found that the city articulated substantial governmental interests with its zoning ordinance; mainly the preservation of the quality of life of its residents, and its limited ability to accommodate commercial or business establishments.  Further, the Court found that ample alternative channels of communicating the speech existed because over 200 acres of Lyon County were zoned in a manner that would accommodate adult entertainment businesses.  “The Supreme Court has left open the question of whether, at least in the case of small municipalities, opportunities to engage in the restricted speech in neighboring communities may be relevant to determining the existence of adequate alternative channels.”  The 8th Circuit thus walked through that opening to close the door on Peterson’s claim.

 

 

 

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St. Louis’s definition of ‘sign’ unconstitutionally content-based

Gary Taylor

by Victoria Heldt and Gary Taylor

Neighborhood Enterprises, Inc.; Sanctuary in the Ordinary; Jim Roos v. City of St. Louis; St. Louis Board of Adjustment
(Federal 8th Circuit Court of Appeals, July 13, 2011)

Neighborhood Enterprises manages the properties of Sanctuary in the Ordinary (SITO), a non-profit organization working with rental properties in St. Louis.  Jim Roos, the founder of both organizations, is involved in the Missouri Eminent Domain Abuse Coalition (MEDAC).  Roos and MEDAC commissioned a sign/mural to be placed on the side of a SITO-owned building.  The sign mural/ was approximately 363 square feet in area and was visible from Interstates 44 and 55.  It read “End Eminent Domain Abuse” inside a red circle with a slash through it.  The sign was similar to the design MEDAC uses in other literature [NOTE: The city of St. Louis had previously condemned 24 buildings owned either by SITO or Neighborhood Enterprises for a private development project] .

In April 2007, the City’s Division of Building and Inspection issued a citation for an “illegal sign” and declared that a permit was required for the sign to be in compliance.  SITO applied and was denied the permit because the sign was painted on a building that was zoned “D” or “Multiple Family Dwelling,” where signs are limited to a maximum 30 square feet, and also because the wall face did not have street frontage and therefore was not allowed to have signage.  SITO appealed to the Board of Adjustment and countered that the sign was, in fact, a “work of art” not required to meet the zoning code’s definition of “sign.” The City justified the requirements in its Zoning Code on concerns for traffic safety and aesthetics.  The Board upheld the zoning administrator’s denial on July 2007.  SITO appealed.

In district court SITO argued, among other things, that the zoning regulations were invalid and unconstitutional pursuant to the First and Fourteenth Amendments to the U.S. Constitution, and as such the Board’s decision should be reversed. The district court granted summary judgment in favor of the City and the Board, finding the zoning regulations were not in violation of the U.S. Constitution and that the Board’s decision was not arbitrary, capricious, unreasonable, unlawful or in excess of the Board’s jurisdiction.  SITO appealed this decision to the 8th Circuit.

On appeal, the 8th Circuit first looked to the issue of standing.  The City and Board argued that SITO only has standing to challenge the provisions within the Zoning Code that were actually applied to the decision to deny the sign permit.  It claimed that SITO could not “show a causal connection between its purported injury and the provisions of the zoning code not applied to it.”  The Court found that SITO had standing to challenge the clauses that were cited in the denial of the permit.  Additionally, it could challenge the sections of the Code that defined a sign and the scope of signs allowed.

SITO’s free speech claim was grounded in the belief that the sign regulations were “riddled with content-based exemptions and restrictions.”  Furthermore, traffic safety and aesthetics were not previously considered “compelling” interests of the government.  The Court found that the Code’s definition of a sign was unconstitutionally content-based because “the message conveyed determines whether the speech is subject to the restriction.”  If a sign/mural of the exact same dimensions and at the same location contained a symbol or crest, or if it were a national, state, religious, fraternal, professional or civic symbol it would not be subject to the city’s regulation.  The Court also found that while the regulations may generally promote aesthetics and traffic safety, the city failed to show how the distinctions between exempt and non-exempt signs found in the code further those goals. The court further held that the code’s exemptions are not narrowly tailored to accomplish goals of traffic safety or aesthetics which, “while significant, have never been held to be ‘compelling’ government interests.

The Court determined the regulation’s definition of a sign to be a violation of the First Amendment but could not rule on whether those clauses could be effectively separated from the Code since the district court never addressed the issue.  It reversed the decision and remanded the case in order for the district court to rule on that matter.

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Surface water permit holders not entitled to a predeprivation hearing when DNR issues notices to cease witdrawals

Gary Taylor

by Gary Taylor

Keating v. Nebraska Public Power District, Nebraska Department of Resources, et al.
(Federal 8th Circuit Court of Appeals, November 8, 2011)

Due to a decrease in water levels in the Niobrara watershed, in 2006 the Nebraska Public Power District (NPPD) requested that the Nebraska Department of Natural Resources (DNR) issue Closing Notices (notices to cease water withdrawals) to hundreds of farmers and ranchers who held surface water appropriation permits that were junior to those permits held by NPPD. In the summer of 2007, the DNR issued such Closing Notices to junior permit holders without providing them notice or a hearing prior to the issuance of the Closing Notices. The appellants filed suit, arguing that the Closing Notices effected a property deprivation, and accordingly they were entitled to the procedural due process protections of a predeprivation hearing. The district court dismissed the suit, holding that the claim was not ripe and that appellants had not exhausted administrative remedies prior to filing the complaint.  After an initial decision, an appeal to the 8th circuit and a remand, district court determined that although the appellants held a property right that entitled them to use the surface waters of the Niobrara River, that right was qualified and subject to the DNR’s administration of the appropriation system. Also, the district court held that the DNR’s administration of the system did not cause the appellants to suffer a deprivation of their property rights. Accordingly, the district court granted summary judgment in favor of the appellees.

In this case the appellants argue they are entitled to a predeprivation hearing prior to the DNR conducting its administration of the Niobrara Watershed and issuing Closing Notices. Specifically, appellants seek a predeprivation hearing to challenge the validity of the NPPD’s permits on the grounds that the NPPD was not beneficially using its appropriation to produce power and to challenge the DNR’s determination of water scarcity.  In addressing the right to a hearing – due process question – a court must first determine whether state action has deprived an individual of a protected property interest, and only after finding such a deprivation does the court consider whether available procedures for challenging the deprivation satisfy the requirements of due process. The US Supreme Court “usually has held that the Constitution requires some kind of hearing before the State deprives a person of liberty or property.”  The 8th Circuit noted that the parties agreed that a water permit entitling the holder to use surface water within the capacity limits of the Niobrara Watershed represents a property right under Nebraska law. That right, however, is not one of ownership of the surface water prior to capture. Instead, the holder of a permit acquires the rights granted by the permit, and is subject to constraints articulated by the permit. Here, the appellants’ permits allows them to use specific amounts of surface water so long as there is sufficient capacity, subject to the rights of senior appropriators and subject to regulation by the State through the DNR.  Appellants argued that when the DNR administers the Niobrara in a manner that requires permit holders to stop taking water, the state should conduct a hearing to give permit holders an opportunity to challenge the DNR’s determination that there is a scarcity.  The 8th Circuit rejected this argument. On the face of the permits, permit holders are warned that there are periods of time when water supply on the Niobrara River is insufficient to meet the demands of all appropriators and that permit holders are “hereby given notice that [they] may be denied the use of water during times of scarcity.” Thus, when the DNR determines that the watershed no longer has the capacity to supply all permit holders, appellants no longer have a legitimate claim of entitlement to use the surface water and thus do not suffer a deprivation of a property right.  The 8th Circuit affirmed the determination of the district court that appellants did not suffer a deprivation of their property rights by the DNR’s actions.

Due Process, Federal courts, Property law, water resources , , ,
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