Iowa APA Conference
Sioux City, Iowa, October 16, 2015
Planning Law Updates
Gary Taylor, JD, AICP
Associate Professor & Extension Specialist
Community & Regional Planning
Iowa State University
Signs
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.
Reed v. Town of Gilbert
• 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.
Reed v. Town of Gilbert
• 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.
Reed v. Town of Gilbert
• Decision
– 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.
Reed v. Town of Gilbert
• Decision
– 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.”
Reed v. Town of Gilbert
• 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.”
Reed v. Town of Gilbert
• 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.”
Reed v. Town of Gilbert
• 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;
Reed v. Town of Gilbert
• Concurrence
7. Rules distinguishing between the placement of signs
on commercial and residential property;
8. Rules distinguishing between on-premises and offpremises 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.
Reed v. Town of Gilbert
• 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 nonprofits 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 contentbased 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. Springfield
7th 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?)
Smith Comm. v. Washington Co.
• 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 Comm. v. Washington Co.
• 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
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)
Local governments cannot…
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.
Local governments cannot…
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”
Local governments cannot…
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
Local governments cannot…
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.
Iowa Cell Tower Legislation
• 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.
TDHCA v. Inclusive Communities
• Question was whether plaintiffs are required
to show discriminatory intent (improper
motive), or whether disparate impact (resultsoriented, 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.
TDHCA v. Inclusive Communities
• “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.”
TDHCA v. Inclusive Communities
• “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.”
City of Iowa City v. Iowa City BOR
• 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.
City of Iowa City v. Iowa City BOR
• 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-apartmentunit-per-member ownership ratio for a
multiple housing cooperative to be properly
organized.
City of Iowa City v. Iowa City BOR
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….”
City of Iowa City v. Iowa City BOR
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.”
City of Postville v. UERPC
• Are notices of UERPC meetings placed on
this bulletin board posted “in a manner
reasonable calculated to apprise the public
of the information”?
• Yes.
City of Postville v. UERPC
• “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.
Miller
v.
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 v. Grundy County
(Iowa Court of Appeals, April 23, 2015)
• 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.
Miller v. Grundy County
(Iowa Court of Appeals, April 23, 2015)
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.
Miller v. Grundy County
(Iowa Court of Appeals, April 23, 2015)
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.”
Miller v. Grundy County
(Iowa Court of Appeals, April 23, 2015)
• 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
County
v.
City of Valley
Nebraska SC, February 6, 2015
SID no. 196 v. City of Valley
Nebraska 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.
SID no. 196 v. City of Valley
Nebraska SC, February 6, 2015
• 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).
SID no. 196 v. City of Valley
Nebraska SC, February 6, 2015
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.
SID no. 196 v. City of Valley
Nebraska SC, February 6, 2015
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.”