SCOTUS to decide major takings case in 2017

The National Constitution Center has listed Murr v. Wisconsin as one of the ten most important US Supreme Court cases to be decided in 2017.  If you attended the Planning Law session at the APA-Iowa Annual Conference in Burlington you heard me discuss the nuances of the “parcel as a whole” rule as it pertains to this case.  The National Constitution Center gives its take on what the case is about here (you’ll need to scroll about halfway down the page).

Constitutional law and history geeks will want to explore the Center’s website generally.  A lot of fascinating reading.

SCOTUS accepts takings case from Wisconsin

Last Friday the United States Supreme Court agreed to take a case from Wisconsin that has implications for takings jurisprudence.  The case is Murr v. State of Wisconsin, and the question certified for the Court is “Whether in a regulatory takings case, the ‘parcel as a whole’ concept as described in Penn Central Transportation Company v City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes.”

Links to law presentations from 2015 APA-Iowa Annual Conference

The powerpoint presentations from the 2015 APA-Iowa Annual Conference held in Sioux City on October 14-16 are now available here.

Thursday afternoon session on Signs and Cell Towers, by Peter McNally, Dustin Miller and Gary Taylor

Iowa APA 2015 Cell Towers
Iowa APA 2015 Signs

Friday morning AICP Law session by Gary Taylor

Iowa APA 2015 Law session

US Supreme Court finds local sign ordinance an impermissible content-based restriction on speech

by Gary Taylor

Reed v. Town of Gilbert
United States Supreme Court, June 18, 2015

Gilbert, Arizona adopted a comprehensive sign code governing outdoor signs.  It identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions.  The Sign Code generally prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs from the permitting requirement.   Three of those 23 categories were relevant to the litigation before the Supreme Court:

  • Political signs – defined as signs designed to influence the outcome of an election, may be up to 32 square feet and only displayed during an election season.
  • Ideological signs – defined as signs communicating a message or idea that do not fit in any other sign code category, may be up to 20 square feet and have no time restrictions.
  • Temporary directional signs – defined as signs directing the public to a church or other qualifying event, are limited to 6 square feet, no more than 4 may be on a single property at the same time, and may be displayed no more than 12 hours before, and 1 hour after the event.

Good News Community Church (Church) is a small congregation that meets in various temporary locations in Gilbert on Sunday mornings.  The Church posted signs early each Saturday morning bearing the Church name and the time and location of the next service.  The signs were not removed until around midday Sunday.  Gilbert cited the Church for violation of the Sign Code, for failing to abide by the time restrictions for temporary directional signs and for failing to include an event date on the signs.  The Church appealed the citation and lost, brought suit in federal district court and lost, and lost on appeal to the U.S. 9th Circuit Court of Appeals.  The 9th Circuit ultimately concluded that the Sign Code’s sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech.  The Church appealed to the U.S. Supreme Court.

Unlike the lower courts, the U.S. Supreme Court found the Sign Code to be a content-based regulation of speech.  It defines the categories of temporary, political and ideological signs on the basis of their messages and then subjects each category to different restrictions.  The restrictions thus depend entirely on the sign’s communicative content.  The 9th Circuit’s conclusion that the regulation was not based on a disagreement with the message conveyed “skips the crucial first step in the content-neutrality analysis: determining whether the law is neutral on its face.  A law that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motives, content-neutral justification, or ‘lack of animus toward the ideas contained’ in the regulated speech….In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.”

The 9th Circuit also erred in concluding that the Sign Code was content neutral because it does not mention any idea or viewpoint, let alone single one out for differential treatment.  The Supreme Court noted that while government discrimination among viewpoints, or based on the opinion or perspective of the speaker is a more blatant and egregious form of content discrimination, it is also discriminatory when government prohibits public discussion of an entire topic.  Gilbert’s Sign Code gives ideological messages more favorable treatment than messages concerning a political candidate, which in turn are give more favorable treatment than messages “concerning announcing an assembly of like-minded individuals.”  “That is a paradigmatic example of content-based discrimination.”

The 9th Circuit’s conclusion that the Sign Code made only speaker-based and event-based distinctions was also in error.  The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. “If a local business, for example, sought to put up signs advertising the Church’s meetings, those signs would be subject to the same limitations as such signs placed by the Church.”  Besides, speech restrictions based on the identity of the speaker are all too often simply a means to control content.

Having determined that the Sign Code was content-based and thus subject to strict scrutiny, the Supreme Court went on to conclude that the Sign Code did not pass Constitutional muster.  Gilbert did not demonstrate that the Code’s differentiation between the various types of signs being discussed furthered a compelling governmental interest.  Gilbert cannot claim that placing strict limits on temporary directional signs is necessary to beautify the town when other types of signs create the same problem.  Nor has it shown that temporary directional signs pose a greater threat to public safety than ideological or political signs.

The Supreme Court further observed:

Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an “absolutist” content-neutrality rule would render “virtually all distinctions in sign laws . . . subject to strict scrutiny, but that is not the case. Not “all distinctions” are subject to strict scrutiny, only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny. The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs “take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” At the same time, the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses—well might survive strict scrutiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes.

More on cell towers…”in writing” requirement

In keeping with the cell tower theme from yesterday, the following is an excerpt of my article that appeared in this month’s Iowa County regarding the T-Mobile case.

U.S. Supreme Court decision impacts local administration of cell tower applications.

The Federal Telecommunications Act of 1996 (FTA) injected federal law into local control over the siting of wireless facilities (cell towers). The FTA requires, among other things, that a local board or commission’s denial of an application for a wireless facility “shall be in writing and supported by substantial evidence contained in a written record.” This has come to be known as the “in writing” requirement. Since 1996 federal courts have come to different conclusions about what local boards and commissions must do to satisfy this requirement. Last year the U.S. Supreme Court agreed to take the case of T-Mobile South v. City of Roswell to clear up some of the confusion caused by the disagreements among the lower courts.

T-Mobile South applied to build a 108-foot cell tower in a residential neighborhood in Roswell, Georgia. The tower was to look like a pine tree, branches and all, though it would have stood at least twenty feet taller than surrounding trees. The city’s zoning department recommended approval subject to several conditions. At the city council’s public hearing four council members expressed concerns about the tower, and a motion to deny the application passed unanimously. Two days later, the city sent T-Mobile a denial letter. The letter did not provide reasons, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not formally approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later. T-Mobile filed suit, won in District Court, lost in the Eleventh Circuit Court of Appeals, and appealed to the U.S. Supreme Court. The Court issued its decision on January 14.

The following three points important to local governments result from the Supreme Court decision:

  1.  Local government must provide written reasons for denying a cell tower application. The Court determined that “supported by substantial evidence contained in a written record” imposes upon local governments a requirement to provide written reasons when they deny cell tower applications. The Court explained that it would be extremely difficult for courts to review local decisions on cell towers if localities did not state their reasoning in writing. The Court went on to stress, however, that “these rea­sons need not be elaborate or even sophisticated, but rather…simply clear enough to enable judicial review.” Although not stated by the Court, it remains important that local boards and commissions base their decisions on the criteria found in the local ordinance when approving/denying cell tower applications.
  2. The denial and written reasons do not need to be in the same document; i.e., separate detailed minutes satisfy this requirement. Local governments are not required to provide their reasons in the denial notice itself, but may state those reasons in some other written record. The practice in many communities is to let detailed minutes (or even a verbatim transcript) of hearings stand as the “written record” of board and commission decisions. The Court held that this practice satisfies the “in writing” requirement of the FTA. At the same time the Court gave advice to local governments that “if the locality writes a short statement providing its reasons, the locality can likely avoid prolonging the litigation – and adding expense to the taxpayer, the companies, and the legal system – while the parties argue about exactly what the sometimes voluminous record means.”
  3.  If the decision and written reasons are in separate documents they must be issued “essentially contemporaneously.” The Court further determined, however, that because the FTA requires a wireless company challenging a denial to commence its lawsuit within 30 days of the denial, the denial and written reasons, if separate documents, must be issued “essentially contemporaneously.” “Because an entity may not be able to make a considered decision whether to seek judicial re­view without knowing the reasons for the denial …the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.” The Court suggested that “if a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial … and instead release it along with its reasons once those reasons are ready to be provided.”

The Court concluded that because Roswell did not issue its denial and written reasoning (in the form of minutes) “essentially contemporaneously” it had violated the “in writing” requirement of the FTA.  The case was a loss for Roswell, but for local governments generally it affirms the practice of many local governments that do not issue formal denials containing the rationale for the decision, but instead rely on the minutes for the rationale.

 

US Supreme Court issues opinion on “in writing” requirement of Federal Telecommunications Act

Today the US Supreme Court issued its ruling concerning the “in writing” requirement of the Federal Telecommunications Act.  My previous post explaining the case, and the disagreement among the federal circuit courts, is here.

by Gary Taylor

T-Mobile South, LLC v. City of Roswell, Georgia
United States Supreme Court, January 14, 2015

T-Mobile South submitted an application to build a 108-foot cell tower on a vacant lot in a residential neighborhood in the city of Roswell, Georgia. The company proposed a tower designed to look like a pine tree, branches and all, though this one would have stood at least twenty feet taller than surrounding trees. The city’s zoning department found that the application met the requirements of the relevant portions of the city code, and recommended approval of the application subject to several conditions. The city council then held a public hearing at which a T-Mobile South representative and members of the public spoke. Five of the six members of the city council then made statements, with four expressing concerns and one of those four formally moving to deny the application. That motion passed unanimously. Two days later, the city sent T-Mobile South a letter stating that its application had been denied. The letter did not provide reasons for the denial, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later.

T-Mobile filed suit, alleging that the council’s decision violated the “in writing” requirement of the Federal Telecommunications Act (FTA) that says that a denial of an application for a wireless facility “shall be in writing and supported by substantial evidence contained in a written record.” The District Court agreed with T-Mobile.  On appeal the Eleventh Circuit reversed.  Noting that T-Mobile had received a denial letter and possessed a transcript of the hearing that it arranged to have recorded, the Eleventh Circuit found that this was sufficient to satisfy the “in writing” requirement.

The US Supreme Court first determined that “supported by substantial evidence contained in a written record” imposes upon local governments a requirement to provide reasons when they deny applications to build cell towers.  It would be extremely difficult for a reviewing court to carry out its review of a local decision if localities were not obligated to state their reasons in writing. The Court went on to stress, however, “that these rea­sons need not be elaborate or even sophisticated, but rather…simply clear enough to enable judicial review.” In this regard, it is clear that Congress meant to use the phrase “substantial evidence” simply as an administrative “term of art” that describes how an administrative record is to be judged by a reviewing court.”  It is not meant to create a substantive standard that must be proved before denying applications.

Local governments are not required to provide their reasons in the denial notice itself, but may state those reasons with sufficient clarity in some other written record such as in detailed minutes. At the same time, the Court agreed with the Solicitor General’s brief that “the local government may be better served by including a separate statement containing its reasons….If the locality writes a short statement providing its reasons, the locality can likely avoid prolonging the litigation – and adding expense to the taxpayer, the companies, and the legal system – while the parties argue about exactly what the sometimes voluminous record means.”

The Court further determined, however, that because the FTA requires the recipient of a denial to seek judicial review within 30 days from the date of the denial, the denial and written reasons, if contained in separate documents, must be issued “essentially contemporaneously.”

Because an entity may not be able to make a considered decision whether to seek judicial re­view without knowing the reasons for the denial of its application, and because a court cannot review the denial without knowing the locality’s reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.
The Court observed that this rule ought not to unduly burden localities given the range of ways in which localities can provide their reasons.  Noting that the FCC “shot clock” declaratory ruling [discussed in the blog here] allows localities 90 days to act on applications to place new antennas on existing towers and 150 days to act on other siting applications, the Court suggested that “if a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial within this 90- or 150-day window, and instead release it along with its reasons once those reasons are ready to be provided. Only once the denial is issued would the 30-day commencement-of-suit clock begin.”

The Court concluded that it was acceptable for Roswell to provide its denial and written reasoning (in the form of detailed minutes) in separate documents, but did not issue these documents “essentially contemporaneously.”   As such, the city did not comply with the statutory obligations of the FTA.  The Court remanded the case to the Eleventh Circuit to address the question of the appropriate remedies.

US Supreme Court declines to take Grain Processing Corporation nuisance case

The US Supreme Court has declined to hear Grain Processing Corporation’s appeal of the Iowa Supreme Court’s decision that neither the Federal Clean Air Act nor state emissions regulations preempt nuisance suits brought by neighbors complaining of the chemicals and particulate matter from the company’s facility in Muscatine. The original blogpost of the Iowa Supreme Court case is here.

A brief article from of all places, Fox News Montana.

T-Mobile South case argued before US Supreme Court

Monday the US Supreme Court heard arguments in the case of T-Mobile South v. City of Roswell, a case interpreting the “in writing” requirement of the Federal Telecommunications Act.

T-Mobile South submitted an application to build a 108-foot cell tower on a vacant lot in a residential neighborhood in the city of Roswell, Georgia (the respondent). The company proposed a tower designed to look like a pine tree, branches and all, though this one would have stood at least twenty feet taller than surrounding trees. The city’s zoning department found that the application met the requirements in relevant city ordinances, and recommended approval of the application subject to several conditions. The city then held a public hearing at which a T-Mobile South representative and members of the public spoke. Five of the six members of the city council then made statements, with four expressing concerns and one of those four formally moving to deny the application. That motion passed unanimously. Two days later, the city sent T-Mobile South a letter stating that its application had been denied. The letter did not provide reasons for the denial, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later.

47 U.S.C. § 332(c)(7)(B)(iii) – a provision of the Federal Telecommunications Act – requires that state or local government decisions denying wireless infrastructure requests “shall be in writing and supported by substantial evidence contained in a written record.” The question in front of the Supreme Court is  “Whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s ‘in writing’ requirement.”

A recap of Monday’s arguments by Miriam Seifter with SCOTUSblog can be found here.  From this summary the reader is left with the impression that the city of Roswell was not particularly interested in standing up for the interests of other local governments in how it focused its argument.

Supreme Court agrees to hear case on prayer at government meetings

by Gary Taylor

Congress shall make no law respecting an establishment of religion….

Yesterday the U.S. Supreme Court agreed to hear the case of Greece, NY v. Galloway, which focuses on the first ten words of the First Amendment, commonly referred to as the Establishment Clause.  The Second Circuit Court of Appeals ruled last year that the Establishment Clause was violated when the Greece Town Board repeatedly used Christian clergy to conduct prayers at the start of its public meetings. The decision created split with other appeals courts that have upheld prayer at public meetings.  This split among the appeals courts led to the Supreme Court taking the case.  The Court will hear the case in its next term, which begins in October. Its decision should come in the spring of 2014, and could have broad implications for public schools and public events.

Analysis from Scotusblog is here.

US Supreme Court validates FCC’s shot clock ruling for local decisions on cell tower permits

by Gary Taylor

City of Arlington, Texas v. Federal Communications Commission
(U.S. Supreme Court, May 20, 2013)

This case was previously discussed in this blog here.  On Monday, the U.S. Supreme Court issued its opinion, which effectively validates the FCC’s shot clock declaratory ruling.  A summary of the Court’s opinion:

The Federal Telecommunications Act (FTA) requires state or local governments to act on siting applications for wireless facilities “within a reasonable period of time after the request is duly filed.” Relying on its broad authority to implement the FTA, the Federal Communications Commission (FCC) issued a Declaratory Ruling (the shot clock) concluding that the phrase “reasonable period of time” is presumptively (but rebuttably) 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications. The cities of Arlington and San Antonio, Texas, argued that the Commission lacked authority to interpret the language “within a reasonable period of time” because doing so amounted to determining the jurisdictional limits of its own authority – a task exclusively within the province of Congeress. The Fifth Circuit Court of Appeals applied precedent from the case of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to that question. Finding the statute ambiguous, it upheld as a permissible construction of the statute the FCC’s view that the FTA’s broad grant of regulatory authority empowered it to adopt the Declaratory Ruling.

In a 6-3 decision, the U.S. Supreme Court affirmed the Fifth Circuit.  Writing for the majority, Justice Scalia found no distinction between an agency’s “jurisdictional” and “nonjurisdictional” interpretations. When a court reviews an agency’s interpretation of a statute it administers, the question is always, simply, whether the agency has stayed within the bounds of its statutory authority. The “jurisdictional-nonjurisdictional” line is meaningful in the judicial context because Congress has the power to tell the courts what classes of cases they may decide—that is, to define their jurisdiction—but not to prescribe how they decide those cases. For agencies charged with administering congressional statutes, however, both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is beyond their authority and can be struck down by a court.  Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. If, however the statute is silent or ambiguous, the court must defer to the administering agency’s construction of the statute so long as it is permissible. Because the question is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out an arbitrary subset of “jurisdictional” questions from the Chevron framework.

The Court rejected Arlington’s contention that Chevron deference is not appropriate here because the FCC asserted jurisdiction over matters of traditional state and local concern. The case does not implicate any notion of federalism: The statute explicitly supplants state authority, so the question is simply whether a federal agency or federal courts will draw the lines to which the States must hew.

A general conferral of rulemaking authority validates rules for all the matters the agency is charged with administering. In this case, the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency’s interpretation of “reasonable period of time” at issue was promulgated in the exercise of that authority.

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