iowa apa conference sioux city, iowa, october 16, 2015 planning law updates gary taylor, jd, aicp...

Iowa APA ConferenceSioux City, Iowa, October 16, 2015

Planning Law Updates

Gary Taylor, JD, AICP

Associate Professor & Extension Specialist

Community & Regional Planning

Iowa State University

Reed v.

Town of Gilbert, AZ

SCOTUS, June 18, 2015

Reed v. Town of Gilbert

• Facts– The sign code for the Town of Gilbert, Arizona,

prohibited the display of outdoor signs without a permit.

– But the town exempted 23 categories of signs from that requirement.

Reed v. Town of Gilbert• Case focused on three types

of exempt signs– Ideological Signs– Political Signs– Temporary Directional Signs

Related to a Qualifying Event.

• Each were regulated differently regarding size, time and location to display.

Reed v. Town of Gilbert• Facts

– Good News Community Church, wanted to advertise the time and location of Sunday church services.

– The church owned no building and held services in different locations.

– The Church began placing 15 to 20 signs around the Town early Saturday to announce the time and location of the upcoming service. The signs were removed Sunday.


• Facts– The Town cited the Church for violating the

Town’s sign code. – The Church sued arguing that the Sign Code

abridged their freedom of speech in violation of the US Constitution.


• Decision– In a rare unanimous decision, SCOTUS struck down the

Town’s sign code as a violation of the Freedom of Speech guaranteed by the 1st Amendment.

• Justice Thomas wrote the opinion for the Court.• Justice Alito wrote a concurring opinion and was joined by

Justices Kennedy and Sotomayor.• Justices Kagan and Breyer also wrote separate concurring

opinions.

Reed v. Town of Gilbert• Decision

– City argued that because the sign code did not favor one viewpoint over another (did not favor, for example, Democratic political signs over Republican political signs) the regulations were not “content-based”

– However, majority opinion found the regulations content based because they focused on the message (a“qualifying event,” an ideological matter, an election) which triggered different regulations for each category.


– While government discrimination among viewpoints is a more blatant form of content discrimination, it is also discriminatory when government limits, or prohibits altogether public discussion of an entire topic, even if there is no improper motive or intent on the part of the government.


– As content-based regulations of speech, the regulations were subject to strict scrutiny by the Court:

• “Content-based laws--those that target speech based on its communicative content--are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”


• An article in the New York Times discussing Reed v. Gilbert described the legal concept of strict scrutiny in the following way: – “Strict scrutiny requires the government to prove that

the challenged law is ‘narrowly tailored to serve compelling state interests.’ You can stare at those words as long as you like, but here is what you need to know: Strict scrutiny, like a Civil War stomach wound, is generally fatal.”


• Decision– As a result of the decision, sign codes similar

to the Town of Gilbert’s that distinguish between signs based on their subject matter will be considered to be content-based – i.e., a fatal stomach wound.

• These laws, wrote Thomas, likely will be struck down “regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”


• Justice Alito’s concurrence lists sign regulations that he believes would not be content based:

1. Rules regulating the size of signs;

2. Rules regulating the locations in which signs may be placed;

3. Rules distinguishing between free-standing signs and those attached to buildings;

4. Rules distinguishing between lighted and unlighted signs;

5. Rules distinguishing between signs with fixed messages and electronic signs with messages that change;

6. Rules that distinguish between the placement of signs on private and public property;


• Concurrence7. Rules distinguishing between the placement of signs on

commercial and residential property;

8. Rules distinguishing between on-premises and off-premises signs; (?)

9. Rules restricting the total number of signs allowed per mile of roadway;

10.Rules imposing time restrictions on signs advertising a one-time event.

11. Government entities may also erect their own signs consistent with the principles that allow governmental speech.


• Concurrences– Justice Kagan expressed her concern that

there was no reason to apply strict scrutiny in this case, and warned that the Court risks becoming the “Supreme Board of Sign Review.”

SNAP, Inc.v.

Jennifer Joyce, Circuit Attorney for the City of St. Louis, et al.

8th Circuit, March 9, 2015

SNAP, Inc. v. Joyce

• MO House of Worship Protection Act defines a crime disrupting a house of worship as when a person, “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.”

SNAP, Inc. v. Joyce

• SNAP (Survivors Network of those Abused by Priests) and Call to Action are non-profits who regularly have people outside of Catholic Churches to pray and advocate for changes within the Church. Nobody has been arrested as a result of this legislation.

• These groups claim 1st and 14th Amendment violations.

SNAP, Inc. v. Joyce

• 8th Circuit focused on “profane discourse, rude or indecent behavior” language of statute.

• It found this legislation constituted content-based restriction of speech, subject to strict scrutiny. (stomach wound).

SNAP, Inc. v. Joyce

• “Governments might “seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

• “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.”

Don Norton, et al.v.

City of Springfield, IL

7th Circuit, August 7, 2015

Norton v. Springfield

• The City adopted an ordinance banning panhandling in the downtown district.

• Oral requests for donations on the spot were banned, but signs or oral requests to send money later were not.

• Plaintiffs called this content discrimination.– Initially decided in favor of the city– Reconsideration requested. 7th Circuit held off

until after Reed v. Gilbert was issued by SCOTUS.

Norton v. Springfield7th Cir., August 7, 2015

• On reconsideration:– “The majority opinion [in Reed] effectively

abolishes any distinction between content regulation and subject-matter regulation. Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.” (stomach wound).

– Topical censorship is still censorship. Few regulations will survive this rigorous standard.

Cell Towers

T-Mobile South v.

City of Roswell, GA

SCOTUS, January 14, 2015

T-Mobile South v. Roswell

– The Federal Telecommunications Act 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.”

T-Mobile South v. Roswell– 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.

• Staff recommended approval subject to several conditions. • City Council denied. Four members expressed concerns about

the tower; motion to deny 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 council did not approve detailed minutes recounting the council members’ statements until its next meeting, 26 days later.

T-Mobile South v. Roswell• Local government must provide written reasons for

denying a cell tower application. – “…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.

– “These reasons need not be elaborate or even sophisticated, but rather…simply clear enough to enable judicial review.”

– It is important that local boards and commissions base their decisions on the criteria found in the local ordinance when approving/denying cell tower applications.

T-Mobile South v. Roswell• 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.

– Letting detailed minutes (or even a verbatim transcript) of hearings stand as the “written record” of decisions satisfies the “in writing” requirement of the FTA.

T-Mobile South v. Roswell• If the decision and written reasons are in separate

documents they must be issued “essentially contemporaneously.” – The FTA requires a wireless company challenging a denial to

commence its lawsuit within 30 days of the denial.– “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.”

– “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.”

Smith Communications v.

Washington County, AR

8th Circuit, May 12, 2015

Smith Comm. v. Washington Co.

• Smith Communications applied for a CUP to build a 300 ft cell tower in Washington County, Arkansas. – Property was “Agriculture/Single Family

Residential” and there were homes near the site.

• Planning Board approved with conditions.• Neighbors appealed to Quorum Court

(ZBA?)


• Quorum Court met June 4, took extensive testimony. Met again June 24, took more testimony and voted 10-3 to reverse (reject application). – Minutes from June 4 meeting were available

June 24, but June 24 minutes not available until July 22.

• Smith appealed to district court and lost, then appealed to 8th Circuit.


• Smith argued that the county should have been compelled to issue a permit because FTA supports a quick approval in the absence of a written explanation for the denial.

• However, in T-Mobile South SCOTUS 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.”

• Because June 4 meeting minutes were available June 24, Smith knew the rationale for the denial. – Failure to issue June 24 minutes “essentially

contemporaneously with June 24 denial was “harmless error.”

Iowa Cell Tower Legislation


• HF655 is meant to work in harmony with previously adopted FCC rules, such as the shot-clock rule and the rules implementing the Spectrum Act. – Many of its provisions simply mimic language

in those rules.

• List of 13 actions local governments cannot take when presented with a proposal for a wireless facility:

Local governments cannot…1. …require an applicant to submit information about

service design, customer demand, or quality of service to or from a particular area or site.

– All records, documents, and electronic data submitted to the local government as part of the application process are treated as information subject to the Open Records Act (Iowa Code Chapter 22).

2. …force co-location– Can require an applicant applying for a new tower to state in

it’s application that it conducted an analysis of available collocation opportunities.

Local governments cannot…

3. …dictate the type of transmission equipment or technology to be used, or discriminate between different types of infrastructure or technology.

4. …require the removal of existing towers, base stations, or transmission equipment as a condition to approval of an application.

– may adopt reasonable rules regarding removal of abandoned towers or transmission equipment. (but see #10)


5.…impose environmental testing, sampling, or monitoring requirements for radio frequency emissions.

6.….regulate radio frequency signal strength or the adequacy of service quality.

7.…reject the application based on perceived or alleged environmental effects of radio frequency emissions.

8.…prohibit the placement of emergency power systems that comply with federal and state environmental requirements.


9. …charge an application fee, consulting fee, or other fee associated with the submission, review, processing, or approval of an application that is not required for similar types of commercial development. – Fees shall be based on actual, direct, and

reasonable administrative costs • No more than $500 for “eligible facilities request”

(existing tower, no substantial change)• No more than $3,000 for new tower or those that do not

constitute an “eligible facilities request”


10...impose surety requirements to ensure removal of abandoned or unused towers equipment unless imposed on other types of commercial development.

11...condition approval on agreement to allow co-location at less than the market rate


12...limit the duration of the approval of an application

– except that construction shall be commenced within two years of final approval, and diligently pursued to completion.

13...discriminate on the basis of the ownership of any property, structure, or tower when promulgating rules or procedures for siting wireless facilities or evaluating applications.


• Airport zoning under Iowa Code Chapter 329 is still permissible.

• Regulation of alterations to exterior features within an historic preservation district, or on local historic landmarks is still permissible.

• A local government shall not mandate, require, or regulate the installation, location, or use of transmission equipment on a utility pole.

Leases on public property

• The local government must offer the market rate value for use of that land.– Goes to an appraisers panel if parties cannot

agree on market value. – Local government may refuse to lease if it

disagrees with appraisers’ opinion.

• The term of the lease shall be for at least 20 years.

Moving on

Texas Department of Housing and Community Affairs

v.Inclusive Communities Project,

Inc.

SCOTUS, June 25, 2015

TDHCA v. Inclusive Communities

• TDHCA is the department responsible for distributing federal low-income housing tax credits to developers in Texas.

• ICP is a non-profit that assists low-income families in finding affordable housing.

TDHCA v. Inclusive Communities• Facts

– ICP sued the Texas Department of Housing and Community Affairs under the Fair Housing Act over how the Department distributes tax credits for low-income housing under the Low-Income Housing Tax Credit Program (LIHTC).

– ICP claimed that the Department’s policy unintentionally resulted in granting too many credits for housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods.

– ICP contended that the Department needed to modify is selection criteria in order to encourage the construction of low-income housing in suburban communities.


• Question was whether plaintiffs are required to show discriminatory intent (improper motive), or whether disparate impact (results-oriented, regardless of motive) is sufficient to prove an FHA violation.– This has been a question for many years and

disparate impact has been sufficient.

• In a 5-4 decision SCOTUS decided that disparate impact claims are valid under FHA.


• “The FHA . . . was enacted to eradicate discriminatory practices within a sector of our nation’s economy. . . . These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification….

• The availability of disparate-impact liability…has allowed private developers to vindicate the FHA’s objectives and to protect their property rights by stopping municipalities from enforcing arbitrary and, in practice, discriminatory ordinances barring the construction of certain types of housing units.”

TDHCA v. Inclusive Communities• Qualifier: The need for a “robust causality

requirement”: • “A disparate-impact claim that relies on a

statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity.” Housing authorities have “leeway to state and explain the valid interest served by their policies….Disparate-impact liability mandates the ‘removal of artificial, arbitrary, and unnecessary barriers,’ not the displacement of valid governmental policies.”


• “The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities….Disparate impact liability does not mandate that affordable housing be located in neighborhoods with any particular characteristic.”

Iowa Supreme Court

City of Iowa City v.

Iowa City Board of Review

ISC, May 15, 2015

City of Iowa City v. Iowa City BOR

Iowa Code 499A.1(1) provides:

“Any two or more persons of full age, a majority of whom are citizens of the state, may organize themselves for the following or similar purposes: Ownership of residential, business property on a cooperative basis. A corporation is a person within the meaning of this chapter.”


• In May 2012 the Iowa City BOR sent notice to 18 properties that they were being reclassified from commercial to residential for property tax purposes because they recently organized into multiple housing cooperatives by corporations.

• The City of Iowa City appealed the reclassification to district court.


• The City had two objections:1. Two natural persons, not two corporations,

must organize multiple housing cooperatives under the Iowa Code

2. The Iowa Code requires a one-apartment-unit-per-member ownership ratio for a multiple housing cooperative to be properly organized.


1. The Court concluded that a natural person need not be one of the organizers of a multiple housing cooperative. The court read the statute to require the corporate organizers have the authority to organize a multiple housing cooperative, and a majority of the corporate organizers must be Iowa corporations. • Had the General Assembly intended to adopt the

City’s position…[it] would have said a corporation could organized a multiple housing cooperative only with two or more natural persons….”


2. The Court found that the law requires only a coupling of ownership and membership interests.• “Put another way, while section 499A.11

certainly requires that each apartment be linked with a corresponding membership interest, there is nothing prohibiting one person from holding ownership and corresponding membership interest in more than one apartment unit.”

Iowa Court of Appeals

City of Postville, et al.v.

Upper Explorerland Regional Planning Commission

ICA, June 10, 2015

City of Postville v. UERPC• On remand from Iowa Supreme Court.

• The bulletin board for public notice is 30-40 feet from the main public access door. It is not visible from the entrance door, but is visible from the reception area. One cannot read the contents of notices from the reception area, however.

• The office is open to the public Monday through Friday from 8:00am to 4:30pm.

• The meeting notices have been posted on the same bulletin board in the same hallway outside the room where the Commission has met for at least twenty years.

• While the general public did not regularly frequent the hallway, or the Commission’s building itself, the public was not prohibited from entering or viewing the contents of the bulletin board.

City of Postville v. UERPC

Iowa Code 21.4.• A governmental body shall give notice of

the time, date, and place of each meeting … and the tentative agenda of the meeting, in a manner reasonably calculated to apprise the public of that information.”


• Are notices of UERPC meetings placed on this bulletin board posted “in a manner reasonable calculated to apprise the public of the information”?

• Yes.


• “The [Open Meetings] statute does not require the notice of the meeting be viewable twenty-four hours a day, or that it be in the most visible place available. All that is required is that the Commission substantially comply with the requirement that the notice be posted ‘in a manner reasonable calculated to apprise the public of the information.'”

• Substantial evidence was present to support the district court’s conclusion that the Commission had met this standard.

Millerv.

Grundy County Board of Supervisors and MidAmerican

Energy

ICA, April 22, 2015

Miller v. Grundy County(Iowa Court of Appeals, April 23, 2015)

• MidAmerican Energy requested to rezone approximately 1,200 acres in Grundy County from A-1 Agricultural to A-2 Agricultural.

• MidAmerican had “Wind Farm Option Agreements” on the acres to be rezoned, and A-2 zoning would allow MidAmerican to place larger wind turbines on the land than those that would be permitted by A-1.

• P & Z Commission voted 6-1 to recommend denial • Grundy County Board of Supervisors went against this

recommendation and voted 4-0 to approve the rezoning (one supervisor recused himself due to a conflict of interest).


• Miller argued that the Board of Supervisors acted illegally because it failed to comply with the requirements of Iowa Code 352.6, which requires supervisors to make specific findings before permitting non-agricultural uses in an “agricultural area.” – Chapter 352 authorizes the creation of agricultural

preservation districts. – It does not address county zoning as enabled

through Chapter 335 of the Iowa Code.


Court • Chapter 352 is inapplicable in this case because “there is

no evidence in the record that the Grundy County Board of Supervisors has ever designated any of the land involved in the zoning amendment as an ‘agricultural area'” as it is meant in Chapter 352, “nor, for that matter, is there any evidence in the record that any owner of any of that land has ever consented to the owner’s land being included in an area designated as an ‘agricultural area.'”

• Simply zoning land as A-1 Agricultural does not of itself create or expand an “agricultural area” as defined in Chapter 352.


The Court, on conflict of interest:• Proof of a COI must be “direct, definite, capable of

demonstration, not remote, uncertain, contingent, unsubstantial, or merely speculative or theoretical.”


• One supervisor owns the AmericInn Motel, which offers discounted rates to wind energy officials. No evidence that any discounts received by wind energy officials were different than discounts available to other guests.

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

Olinger, et al.v.

Harrison County, Iowa, Utman Drainage District

ICA, March 25, 2015

Olinger v. Harrison County

• The trustees for the Utman Drainage District went into closed sessions on November 7 and November 14, 2013, allegedly to discuss matters relating to pending litigation.

• In court documents the trustees admitted that legal counsel for the district was not present at either meeting.

Olinger v. Harrison County• Open Meetings Act. Iowa Code 21.5:

1. A governmental body may hold a closed session only by affirmative public vote of either two-thirds of the members of the body or all of the members present at the meeting. A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons:….c. To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.

Olinger v. Harrison County

• Can you discuss strategy with counsel when counsel isn’t present?

• The Iowa Court of Appeals didn’t think so, either.

Nebraska

SID no 196 of Douglas Countyv.

City of Valley

Nebraska SC, February 6, 2015

SID no. 196 v. City of ValleyNebraska SC, February 6, 2015

• Valley is a second class city in Nebraska. • These cities are allowed to annex

contiguous or adjacent lands that are urban and suburban in character, but not agricultural land.


• In 2010 the City passed Ordinance 611 to annex six areas near the City. – One was a subdivision in Sanitary

Improvement District (SID) no. 196.• Largely developed residential area, but separated

from city by undeveloped area that was subject of one of the other pending annexations.

– The other areas included sand and gravel mines owned by Lyman-Richey (L-R).


Contiguous and Adjacent • Generally, a municipality may annex

several tracts as long as one tract is substantially adjacent to the municipality and the other tracts are substantially adjacent to each other. ….The annexation as a whole – looking at all parcels together – met the contiguous or adjacent requirement of the statute.


Character of the area • SID 196 claimed that because the property

was being used for mining operations, and because the property was zoned transitional agriculture it could not be annexed.

• Court disagreed. Mining has traditionally never been considered an agricultural use of property, and zoning does not dictate the ability to annex.

Buck’s, Inc. v.

City of Omaha

NCA, November 24, 2014

Buck’s v. Omaha

• Buck’s owns and operates a gas station on the northwest corner of the intersection of 144th Street and Stony Brook Boulevard.

• In August 2009, the City eliminated a cut in the median on Stony

Brook Boulevard that gave eastbound traffic access to the gas station, but no access points to the gas station were eliminated, and Buck’s continued to have three entrances after project completion..

• The city engineer testified that the decision to eliminate the median cut was made to address safety concerns associated with increased traffic generated by a new grocery store in the area.

• The city’s right-of-way manager testified that the City did not acquire any property or property interest from Buck’s for this project.

Buck’s v. Omaha

• Buck’s nevertheless brought an inverse condemnation action against the City.

Court• The right of an owner of property that abuts a street or highway

to have ingress and egress by way of the street is a property right in the nature of an easement; however, the damages result from the exercise of the police power and are noncompensable as being incidental to the doing of a lawful act.”

• “The fact that left-hand turns are now restricted is but an inconvenience shared with the general public.”

iowa apa conference sioux city, iowa, october 16, 2015 planning law updates gary taylor, jd, aicp...

Documents

town of gilbertfactsthe

town of gilbertdecisionin

town of gilbertcase

town of gilbertdecisioncity

town early

regulations content

town of gilbertan article

categories of signs