Requiring conditional use permit for residential substance abuse service facilities does not violate ADA

by Gary Taylor

Get Back Up, Inc. v. City of Detroit
Federal 6th Circuit Court of Appeals, March 13, 2015

Get Back Up operates a 160-bed all male residential facility in downtown Detroit, providing substance abuse treatment and counseling, education, and job training opportunities.  In August 2007 it purchases an unused school building from Detroit Public Schools for approximately $500,000.  The building is located in B4-H, General Business/Residential Historic zoning district.  The B4-H District allows boarding schools, child care institutions, nursing homes, religious residential facilities, adult day care centers, hospitals, libraries and religious institutions (among other uses) by right.  It lists “residential substance abuse service facilities” as one of several conditional uses requiring the satisfaction of 15 stated criteria before being allowed.  Get Back Up originally received approval of its conditional use application for the building in the B4-H District from the Building Safety and Engineering Department, but the Russell Woods-Sullivan Area Homeowners Association appealed the approval to the Board of Zoning Appeals (BZA).  The BZA voted to reverse the decision.  Get Back Up appealed the BZA decision to Wayne County Circuit Court, and after bouncing around between circuit court and the BZA several times the circuit court affirmed the BZA’s denial.  Appeals to the Michigan Court of Appeals and Supreme Court were unsuccessful.  After this, Get Back Up filed a complaint in federal court, claiming that the denial violated the American’s with Disabilities Act, the Rehabilitation Act, and the Fair Housing Act.  The federal district court also ruled in favor of the city, and Get Back Up appealed.

Get Back Up argued that requiring residential substance abuse service facilities to obtain a conditional use permit when other similar uses are allowed by right is discriminatory.  The 6th Circuit disagreed, finding that the ordinance does not allow any materially similar use to operate by right in any B4 zoning district.  Residential substance abuse service facilities are treated the same as many other residential uses such as multi-family dwellings, emergency shelters, rooming houses, and fraternities and sororities.  Furthermore, the court found that the other uses cited by Get Back Up in support of their case (nursing homes and hospitals) are not materially similar to residential substance abuse service facilities.  Hospitals are not residential uses, and they tend to have substantial impact on their immediate surroundings and are particularly well suited for busy commercial districts like B4 districts.  While nursing homes are residential uses, their residents are “often physically disabled and they rarely leave the premises….[They are a] uniquely sedate and unburdensome use, having relatively little impact on traditional zoning concerns like noise and traffic.”

The court also found no merit in Get Back Up’s argument that the 15 criteria for approving a conditional use permit are unconstitutionally vague.  The phrases “detrimental to or endanger the social, physical, environmental or economic well being of surrounding neighborhoods,” “use and enjoyment of other property in the immediate vicinity,” and “compatible with adjacent land uses” are terms with “common-sense meanings” and are not so vague as to fail to provide fair notice to applicants of what is prohibited.”

The 6th Circuit Court of Appeals affirmed the ruling in favor of the City of Detroit.

Story County District Court invalidates Ames lap dance ordinance

by Gary Taylor

Relying on Mall Real Estate v. City of Hamburg (blogged here) Story County District Court recently ruled that the Ames “lap dance ordinance” is preempted by state law.

Rebekah Beth Williams and Alijah Blue Allison v City of Ames (PDF)
Story County District Court, November 14, 2014

Dangerous Curves serves alcohol and hires women to dance while wearing bikinis or underwear.  In October 2013 an Ames police officer conducted a bar check of Dangerous Curves and observed the defendants performing lap dances while having exposed buttocks.  Ames Municipal Code Section 17.31(1) prohibits this activity.  It provides

No person appearing as an entertainer on commercial premises subject to an Iowa liquor license or beer permit, or on premises of an ‘adult entertainment business’ … shall fondle, caress or sit on the lap of any customer on said premises if the entertainer presents a performance on the premises while nude or so attired as to leave exposed the entertainer’s ….buttocks….”

The defendants were each issued a citation for violation of Section 17.31. The defendants pled not guilty and filed a motion to dismiss, arguing (1) Iowa Code 728.11 preempts Section 17.31, and (2) Section 17.31 is unconstitutionally vague and overbroad. The motion to dismiss was denied, and the District Associate Judge found the defendants guilty of violating Section 17.31.  The defendants appealed to the Iowa District Court for Story County.

Preemption.  Iowa Code 728.11 provides

In order to provide for the uniform application of the provisions of this chapter relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this chapter, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials.  All such laws, ordinances or regulations shall be or become void, unenforceable and of no effect on January 1, 1978.  Nothing in this section shall restrict the zoning authority of cities and counties.

Iowa Code 728.5 regulates public indecent exposure, and specifically provides
1.  An owner, manager, or person who exercises direct control over a place of business required to obtain a sales tax permit shall be guilty of a serious misdemeanor under any of the following circumstances:
b.  If such person allows or permits the exposure of the genitals or buttocks or female breast of any person who acts as a waiter or waitress.
The District Court noted that in Mall Real Estate v. City of Hamburg the Iowa Supreme Court concluded that the legislature intended to include live nude dancing within the meaning of ‘obscene materials,’ and the effect of Section 728.11, therefore, was to preempt Hamburg’s nude dancing regulations.  The defendants asserted that Mall Real Estate makes it clear that Section 17.31 is preempted by the Iowa Code.  The City argued, however, that Mall Real Estate only works to apply the Iowa Code to nude dancing performances, while Section 17.31 addresses physical contact. According to the City, “once the dancer touches a customer the dancing is no longer a performance fitting within the definition of ‘obscene material.'” The City then has a governmental interest in protecting the health and safety of its citizens.
The District court sided with the defendants, noting that the performances in question in Mall Real Estate included physical contact between the dancers and customers and, therefore, “the Supreme Court has already determined that a live nude dancing performance, including physical contact with customers, is obscene material under the Iowa Code.”  As a result, Section 17.31 regulates obscene material and is expressly preempted by state law.
Vague and overbroad ordinance.  Even though the ruling for the defendants on the preemption argument had the effect of ending the controversy, the District Court proceeded to the constitutional question “in the event that this decision is appealed and the Appellate Courts of Iowa take another look at the [Mall Real Estate] case, which was decided by a split court.”
The District Court made quick work of this argument.  It first cited a 1977 Iowa Supreme Court case that stated “we find it difficult to believe [the defendant] seriously contends people of common intelligence would not understand the meaning of nudity or would not be able to determine when the ordinance was violated by exposing to public view the breasts, buttocks, or genitals.”  Because the term ‘buttocks’ is not vague, requiring the entire buttocks to be covered is not overbroad.  “It would be easily discernible to observe whether or not the buttock was covered either partially or fully.”
Based on the preemption determination, the District Court reversed the defendants’ convictions.

Junk vehicle ordinance not a traffic regulation; neither overbroad nor vague

by Hannah Dankbar

Village of North Hudson v Randy Krongard
(Wisconsin Court of Appeals, November 18, 2014)

In November 2011 Krongard received two citations from Village of North Hudson for violating article II, chapter 90, § 44 of the Village Code by having two junk vehicles (cars without current registration) in plain view on his property.

Krongard pleaded not guilty in municipal court, but failed to show for his trial. He showed up a few months later with counsel seeking to vacate the municipal court judgment against him by saying that the Village ordinance is void, unlawful and invalid as it is preempted by, contrary and inconsistent with Wisconsin traffic regulations. The municipal court refused to vacate the judgment.  Krongard’s appeal was also dismissed by the circuit court. Krongard then appealed to the court of appeals.

Krongard claimed the Village’s ordinance conflicted with state traffic regulations in chapters 341 to 348 and 350.  Krongard argued that The Village’s ordinance “impermissibly defines unregistered vehicles as junk vehicles and regulates unregistered vehicles on private property.”

The Village argued that its ordinance and the state traffic regulations could not be contradictory because they regulated “two completely different issues.”  While the village ordinance is “concerned with the upkeep of private property,” the state traffic regulations were concerned “with the licensing, regulation of, outfitting and operation of vehicles[.]”

The circuit court decided, “this regulation, because of the way it is written, its location within the Village Ordinances, and the Village’s alternative definition of junk vehicle, falls under the Village’s ‘health, safety, welfare’ power granted in Wis. Stat. § 61.34.”  It also found the ordinance was a constitutionally valid exercise of that ‘health, safety, and welfare’ power.  As a result, the circuit court denied Krongard’s motion to vacate the default judgment. Krongard appealed to the court of appeals.

Krongard argued that because the village ordinance concerns motor vehicles, it must be a traffic regulation. The Village argued that its ordinance only addresses the problem of uncovered junk vehicles and has nothing to do with the operation of motor vehicles on highways or city streets.  Rather, as the circuit court correctly noted it “simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.”

The court rejected Krongard’s argument that the village ordinance is a traffic regulation. It stated that Krongard’s argument “ignores the fact that § 90-44 does not affect—directly or incidentally—motor vehicle operation. Rather, as the circuit court aptly noted on remand, it ‘simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.’”

Regarding the constitutionality of the ordinance, Krongard raises due process concerns that the Village’s provisions in Article II are overbroad and vague.

An ordinance is vague if it is “so obscure that [persons] of ordinary intelligence must necessarily guess as to its meaning and differ as to its applicability.” It is overbroad “when its language, given its normal meaning, is so sweeping that its sanctions may be applied to conduct which the state is not permitted to regulate.” The court found “no indication that Krongard could reasonably have any question as to what constituted a violation of the village ordinance, or the consequences for such a violation.”

The court dismissed all of Krongard’s claims.

Kansas Court of Appeals strikes down municipal nuisance ordinance

by Gary Taylor

City of Lincoln Center v. Farmway Co-op
(Kansas Court of Appeals, April 12, 2012)

Farmway owns and operates a grain elevator located within the City of Lincoln Center, a small rural farming community in central Kansas. The neighborhood surrounding the Farmway elevator is residential. In December 2008, Farmway applied for a building permit to construct a new grain storage bin adjacent to the existing facility. The new storage bin went into operation on July 14, 2009. From that day forward, nearby residents complained about the increased noise level from the drying fans and the increased grain dust and truck dust in the air. On July 27, 2009, Dawn and Melvin Harlow filed a noise complaint against Farmway. The Harlows described the increased noise levels from the new grain bin and its effect on their everyday life. Other neighbors also complained about the noise, and explained how their yard and vehicles were covered with grain dust and how the operation of the new facility had led to increased health problems.

The Kansas Department of Labor and the Kansas Department of Health and Environment made a total of four visits to the site to investigate and take measurements.  All tests for noise and dust were well within legal limits.  No citations were ever issued.  Nonetheless, on December 9, 2009, the City charged Farmway with violating City ordinances regarding excessive loud noises and nuisances. Count I of the City’s complaint alleged that between July 16, 2009, and December 3, 2009, Farmway willfully, unlawfully, and intentionally did “make, continue, maintain or cause to be made or continue an excessive, unnecessary, unreasonable or unusually loud noise which annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City of Lincoln Center, Lincoln County, Kansas, in violation of [City] ordinance #643.”  Count II alleged that Farmway did “maintain a public nuisance by act or failure to perform a legal duty intentionally causing or permitting a condition to exist which injures or endangers the public health, safety, or welfare, namely the excessive, unnecessary, unreasonable or unusually loud noise, and by causing or permitting excessive air pollution and contamination from grain dust all generated by, for or from the new concrete grain storage bin facility” in violation of ordinance #633.  Farmway was found guilty in municipal court and charged a total of $466 in fines and assessments.  Farmway appealed to district court, where the judge threw out the complaint because “the City’s ordinances provide no guidelines or constraints on those that enforce it. One must guess at the meaning of these ordinances and its application may depend upon those attempting to enforce it.”  The City appealed to the Kansas Court of Appeals.

The Court of Appeals stated that “in determining whether an ordinance is void for vagueness, two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.”  The court observed that the case fell somewhere in between a long line of cases in which the courts found the ordinances constitutionally deficient because of the complete lack of an objective standard, and another line finding ordinances constitutional because they contained expressly stated-objective standards clarifying the ordinance’s application.  The Lincoln Center ordinance’s use of the word “unreasonable” in describing one type of loud noise “appears to be an attempt at creating an objective standard”; however, the court concluded that the noise ordinance “does not give fair warning to those potentially subject to its reach because there are no objective standards imparted.”

[T]he critical piece of the Lincoln ordinance is … the fact that it only applies where the noise “either annoys, disrupts, injures or endangers” the comfort, repose, health, peace or safety of others within the City. It is the ordinance’s application language that makes it vague. There is no objective standard by which to judge whether the complainants have reasonable grounds to complain about the noise either annoying, disrupting, injuring, or endangering them. We agree with the district court that this language fails to provide an objective standard. The absence of an objective standard subjects the defendant to the particular sensibilities of the complainant, not something that is geared toward a “reasonable sensibility” standard. Consequently, the ordinance does not adequately guard against arbitrary and discriminatory enforcement….

We find there is no reason that the City cannot enact a more specific ordinance to proscribe the objectionable conduct involving dust and industrial noise and provide constitutionally acceptable objective standards for consideration of the conduct. We realize that small farm towns depend on the agricultural economy for its survival and vice versa…. However…if dust and industrial noise present a public nuisance, then it lies within the power of the City to enact an ordinance specifically prohibiting such nuisance and defining objective standards to give anyone subject to its criminal penalties fair warning for what conduct will be prosecuted.

Ordinance prohibiting lot splits found constitutional

by Victoria Heldt

Richard W. Guse and Clara Guse v. City of New Berlin and Common Council of the City of New Berlin
(Wisconsin Court of Appeals, January 18, 2012)

The Guses own a lot in the Hillcrest Terrace Subdivision in the City of New Berlin.  They wanted to divide their existing lot into two lots, with each measuring approximately 29,000 square feet with a width of 147 feet.  The average lot within the subdivision contained approximately 41,000 square feet and measured 181 feet wide.  Both the New Berlin Plan Commission and the New Berlin Common Council denied the Guses’ request based on NBMC §235-23(G).  This ordinance allows the City to prohibit new lots that are smaller than or not as wide as existing lots in the subdivision.  It also allows the city to prohibit the formation of new lots in a subdivision that is more than 25 years old.  The Guses appealed the decision to the district court, arguing that the ordinance was unconstitutionally vague and that the Council’s denial of their request was arbitrary, unreasonable, and discriminatory.  The court agreed and reversed the Council’s decision, ruling in favor of the Guses.  The City appealed.

The Court looked first to the constitutionality of NBMC §235-26(G).  An ordinance is unconstitutionally vague if “it fails to afford proper notice of the conduct it seeks to proscribe or if encourages arbitrary and erratic enforcement.”   The Guses argued it was vague because it did not set forth adequate standards for the City to consider when deciding whether to allow such a lot split.  The Court looked to previous judicial decisions regarding vague statutes and ordinances.  In the case of Humble Oil, the Court struck down an ordinance that allowed a city to prohibit gas filling stations.  In the ordinance in that case, the only factors that were to be considered when deciding on a permit were public health, safety, convenience, prosperity, or general welfare.  The Court deemed those standards to be too vague and concluded there should be some standards to guide the municipality’s actions.

Next the Court looked to cases in which it upheld statutes and ordinances.  In Wadhams Oil Co. v. Delavan the Court upheld an ordinance allowing the city to prohibit a gas station to be placed within 165 of the main street of a city.  In Smith v. Brookfield, the Court upheld an ordinance that required the submission of location and a plan of operation before a board would allow certain types of businesses.  It also contained language in the preamble that required consideration of general welfare objectives.  After analyzing those cases, the Court concluded that “ordinances may vest boards with some (and even significant) discretion without being unconstitutionally vague.”  Turning to the ordinance in question, the Court determined that the New Berlin Municipal Code clearly outlines three considerations for the court to consider when contemplating the issuance of a permit, so it is not unconstitutionally vague.

The Guses further argued that the Council’s decision to deny the request was arbitrary because the lot in question is relatively large compared to those around it, and that the denial was unreasonable because it “lacked a health, safety, or general welfare basis.”  The Court noted that the existence of differences in decisions is not necessarily indicative of arbitrariness.  In making the decision, the Council considered the criteria of the statute and citizen’s opposition to the division, so there was clearly a rational basis for the decision.

The Guses finally argued that the decision was discriminatory because the Council previously approved lot divisions that created lots smaller than the average lot size within the subdivision.  The Court found this claim to be unsupported by the record.  The Guses presented evidence of previous lot divisions, but no evidence of how those lots compared in size to surrounding lots.  The Court reversed the trial court’s decision, ruling in favor of the City.

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