Annual Update of Supreme Court and Missouri Land Use Cases

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1 Annual Update of Supreme Court and Missouri Land Use Cases Missouri Municipal Attorneys Association July 11, 2015 Presented By: Steve Chinn Steven Lucas Stinson Leonard Street LLP Cunningham, Vogel & Rost, P.C.

2 Project Overview Supreme Court of the United States Cases EEBN Event October 25,

3 Facts of the Case Reed et. al. v. Town of Gilbert, Arizona Sign code governing display of outdoor signs w/ various categories of signs w/ different restrictions Temporary Directional Signs Relating to a Qualifying Event, which direct the public to a meeting of a nonprofit group, is one Permit for display, but 23 exempt categories - Ideological Signs communication of message & ideas for noncommercial purposes - Treated most favorably - Political Signs designed to influence the outcome of an election - Treated less favorably than Ideological Signs - Temporary Directional Signs Relating to a Qualifying Event directing the public to a qualifying event - Treated less favorably than Political Signs EEBN Event October 25,

4 Facts of the Case Reed et. al. v. Town of Gilbert, Arizona Good News Community Church, in wanting to advertise time and place of its services, displays temporary signs, frequently in the rightof-way, which resulted in citations; an accommodation could not be reached Petition filed in District Court alleging abridgment of speech in violation of the 1 st and 14 th Amendment - motion for temporary injunction denied Ninth Circuit affirmed, holding code didn't regulate speech based on content tho enforcement officer needs to read sign to determine which provision applies, "kind of cursory examination" and "not akin to an officer synthesizing the expressive content of the sign." EEBN Event October 25,

5 Facts of the Case Reed et. al. v. Town of Gilbert, Arizona Remanded to District Court which granted S.J. Ninth Circuit again affirmed; applying a lower level of scrutiny. It held categories content neutral; distinctions between signs "based on objective factors relevant to creation of the exemptions do not consider substance of the sign." Court reasoned that regulation not adopted due to disagreement with message, rather its interests were unrelated to sign's content, therefore no First Amendment violation EEBN Event October 25,

6 Reed et. al. v. Town of Gilbert, Arizona Opinion of the Court - Thomas, joined by Roberts, Scalia, Kennedy, Alito and Sotomayor Governments have no authority to restrict expression because of its message, ideas, subject matter or content Content based laws are presumptively unconstitutional & justified only if proved to be narrowly-tailored to serve a compelling state interest Content based if law applies to particular speech due to topic discussed or message expressed defining regulated speech by its function or purpose, as well as by a particular subject matter are distinctions based on message a speaker conveys and thus subject to strict scrutiny Laws adopted because of disagreement with the message conveyed are content based and subject to strict scrutiny EEBN Event October 25,

7 Reed et. al. v. Town of Gilbert, Arizona Opinion of the Court - Thomas, joined by Roberts, Scalia, Kennedy, Alito and Sotomayor Restrictions depend on sign's communicative content; thus is content based on its face Regulation applicable to signs in question are all based on message conveyed Law content based is subject to strict scrutiny regardless of the government's benign motive or lack of animus and why Court repeatedly has considered if content neutral before looking at justification or purpose Ninth Circuit misinterpreted Ward in suggesting that purpose is relevant in whether content neutral of its face EEBN Event October 25,

8 Reed et. al. v. Town of Gilbert, Arizona Opinion of the Court - Thomas, joined by Roberts, Scalia, Kennedy, Alito and Sotomayor Ninth Circuit analysis, centered on content neutrality because the regulation didn't mention any idea or viewpoint, conflates 2 distinct, but related limitations regulation based on motivating ideology is more blatant, but First Amendment hostility to content based regulation extends also to the prohibition of discussion of an entire topic Ninth Circuit is also mistaken in its finding of neutrality based on who is speaking. The fact that a distinction is speaker based doesn't render it content neutral. Restrictions based on the identity of the speaker are often a means to control content A content based law that restricts the political speech of all corporations would not be content neutral just because it singled out corporations as a class of speakers Just because a distinction is event based does not render it content neutral EEBN Event October 25,

9 Reed et. al. v. Town of Gilbert, Arizona Opinion of the Court - Thomas, joined by Roberts, Scalia, Kennedy, Alito and Sotomayor The town was unable to show that its distinction between signs is narrowly tailored to achieve a compelling interest. The regulation are under inclusive with respect to aesthetics and traffic safety concerns, thus not narrowly tailored Decision will not prevent governments from regulating signs; size, building materials, lighting, moving parts and portability are all appropriate distinctions Narrowly tailored sign regulations may be essential for vehicle and pedestrian safety, to guide traffic or to identify hazards and ensure safety, such as warning signs, marking hazards on private property, signs directing traffic or street numbers associated with private homes might survive strict scrutiny EEBN Event October 25,

10 Alito, with Kennedy and Sotomayor join concurring Reed et. al. v. Town of Gilbert, Arizona Agreement that code is replete with content-based distinctions That doesn't mean that governments are unable to Constitutionally regulate signs - Rules regulating size of signs - Rules regulation location - Distinctions between lighted and unlighted - Fixed v. electronic messages - Rules distinguishing the placement of signs on private and public property - Rules distinguishing the placement of signs on commercial and residential property - Rules distinguishing between on premise and of premise signs - Rules imposing time restrictions on one-time events - Rules regulating the total number of signs - Government signs EEBN Event October 25,

11 Breyer, concurring and joining Kagan s separate opinion Reed et. al. v. Town of Gilbert, Arizona "Content discrimination" is better understood here as a rule of thumb, rather than as an automatic "strict scrutiny" trigger Tho it does make sense in some instances, as in when it is used to suppress a viewpoint or in the public forum context Best approach is to treat context neutrality as a strong reason weighing against the unconstitutionality of a rule where a traditional public forum or where viewpoint discrimination is threatened, but elsewhere as a rule of thumb EEBN Event October 25,

12 Kagan joined by Ginsburg and Breyer, concurring in the judgment Reed et. al. v. Town of Gilbert, Arizona Given Court's analysis many sign ordinances are now in jeopardy Rare case in which a speech restriction survives strict scrutiny Governments will have to either repeal the exemptions for helpful signs on streets and sidewalk or lift their sign regulation altogether The subject matter exemption in the code do not implicate the concerns expressed in the Opinion as the need for strict scrutiny, i.e. preserve uninhibited marketplace of ideas and ensure against regulation based on hostility to the message We should "relax our guard so the 'entirely reasonable' laws imperiled by strict scrutiny can survive. No need to decide whether strict scrutiny applies to every sign ordinance in every town with a subject matter exemption EEBN Event October 25,

13 Walker v. Texas Department of Motor Vehicles Board Facts of the Case Texas offers specialty license plates Three methods to obtain a specialty plate; the one at issue here allows the Board to create new specialty plates on receipt of an application from a nonprofit entity Board vested, by Texas law, with authority to approve or disapprove an application; one of the authorized reasons is "if the design might be offensive to any member of the public,,,," Sons of Confederate Veterans applied in 2009 for a design with its name at the bottom of the plate, its logo, a square Confederate battle flag, at the side and a faint Confederate battle flag in the background on a lower portion of the plate. The application was denied Application renewed in 2010 and the Board invited public comment on website and at public meeting EEBN Event October 25,

14 Walker v. Texas Department of Motor Vehicles Board Facts of the Case Responses opposed the proposal Board unanimously voted against issuing the plate - Explained that denied because members of public found the plates offensive and such comments are reasonable - Public associated the flag with organizations advocating expression of hate directed toward people or groups that are demeaning Lawsuit brought in 2012 by the Sons and two board members as a violation of the Free Speech Clause and injunction sought District Court entered judgment for the Board Divided Fifth Circuit reversed; holding that plates are private speech and Board engaged in prohibited view-point discrimination EEBN Event October 25,

15 Walker v. Texas Department of Motor Vehicles Board Opinion of the Court Breyer joined by Thomas, Ginsburg, Sotomayor and Kagan When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says "Clause helps produce informed opinions among members of the public, who are able to influence the choice of a government that, though words and deeds, will reflect it electoral mandate." If it were interpreted otherwise, govern would not work Not to say that government's ability to express itself is without restriction - Other Constitutional and statutory provisions may limit - Can't compel private persons to convey the government's speech EEBN Event October 25,

16 Walker v. Texas Department of Motor Vehicles Board Opinion of the Court Breyer joined by Thomas, Ginsburg, Sotomayor and Kagan Court relied on its analysis in Pleasant Grove City v. Summun, involving religious organization's request to erect a monument setting forth the organizations religious tenants in a park, holding that the city had not provided a forum for private speech History of license plates in Texas long have communicated messages from states, in addition to state name and identification numbers Texas license plates are essentially government IDs and issuers don't typically allow messages with which they do not want to be associated Person who displays message on a license plate intend to convey to the public that the state has endorsed the message Texas retains direct control over the messages EEBN Event October 25,

17 Walker v. Texas Department of Motor Vehicles Board Opinion of the Court Breyer joined by Thomas, Ginsburg, Sotomayor and Kagan Forum analysis is misplaced here because the state is speaking on its own behalf - Parties agree not a traditional public forum - Clear that not a designated public forum which exists where government property that has not been traditionally regarded as public forum is intentionally opened up for that purpose - Clear also not a limited public forum which exists where the government has reserved a forum for certain groups or for discussion of certain topics Fact the private parties take part in the design does not change the government nature of the message or transform the government's role into that of a forum provider Here compelled private speech is not at issue EEBN Event October 25,

18 Walker v. Texas Department of Motor Vehicles Board Alito, with whom Roberts, Scalia and Kennedy join dissenting Decision passes off private speech as government speech and thus establishes a precedent that threatens private speech government finds displeasing Texas converted the remaining space on the plate to a "little mobile billboard. Can they not now do it will big billboards and allowed private individuals to post their own messages Specialty plates have none of the factors critical in Summum Texas has created a limited public forum, but rules governing the forum bar viewpoint discrimination EEBN Event October 25,

19 Facts of the Case Horne et al. v. Department of Agriculture Agricultural Marketing Agreement Act of 1937 authorizes the Secretary to promulgate "marketing orders" to help maintain stable markets for agricultural products Challenge to the Department's California Raisin Marketing Order Growers required to set aside a percentage of crop each year to the Government free of charge Growers ship raisins to handlers who separate the Government's established percentage, "reserved raisins" Government pays growers for remainder only, "free-tonnage raisins," then packages and sells reserved EEBN Event October 25,

20 Facts of the Case Horne et al. v. Department of Agriculture Government acquires title to reserved raisins and has sole discretion what to do with them Grower retain interest in net proceeds from sales of reserved raisins Hornes, as growers and handlers, refused to set aside any raisins for the Government Government assessed a fine equal to their market value, plus civil penalty Hornes turned to courts when Government attempt to collect fines and penalties, claiming a Fifth Amendment taking EEBN Event October 25,

21 Facts of the Case Horne et al. v. Department of Agriculture Ninth Circuit considered whether requirement was a per se taking or a restriction on use analyzed under the Penn Central regulatory takings standard Ninth Circuit held that it to be a use restriction similar to a condition on a land use permit As the Hornes were free to avoid the condition by planting different crops and a constitutionally proportionate response to the Government's interest in ensuring an orderly raisin market, thus not a Fifth Amendment taking EEBN Event October 25,

22 Opinion of the Court Chief Justice Roberts Horne et al. v. Department of Agriculture First question presented: Does the duty to pay compensation when government physically takes property apply to personal property, as well as real property. Answer is YES Nothing in the text or history of Takings Clause or court's precedent suggests otherwise Ninth Circuit based its contrary conclusion on its misunderstanding of Lucas, but Lucas was a regulatory takings case and not a per se takings case Reserve requirement is a clear physical taking, as growers lose entire "bundle" of property rights in reserved raisins the right to possess, use and dispose EEBN Event October 25,

23 Opinion of the Court Chief Justice Roberts Horne et al. v. Department of Agriculture Though regulatory limit on product may have the same effect as the reserve requirement, but the Constitution is concerned with the means and ends and the means must be consistent with the letter and spirit of the Constitution Second question presented: Can government avoid duty to pay compensation by reserving to the owners a contingent interest in a portion of the value of the property, Answer is NO Government contends growers retain an important property interest in reserved raisins, so no taking, but whether there has been a deprivation of all economically valuable use is not an issue when it s a physical appropriation, such as in Loretto EEBN Event October 25,

24 Opinion of the Court Chief Justice Roberts Horne et al. v. Department of Agriculture Dissent cites Andrus v. Allard (restraint on sale of feathers), but not precedent because there though the right to possess, donate and devise their property, there was no compelled surrender, as here Government and dissent confuse per se and regulatory takings once a physical appropriate occurs any payment only goes to the issue of just compensation Third question presented: Does mandate to relinquish specific property as a condition on permission to engage in commerce effect a per se taking, Answer in this case YES In Loretto, Court rejected claim that no taking because landlord could avoid by not being a landlord ability to rent property can't be conditioned on forfeiture of compensation for a taking EEBN Event October 25,

25 Opinion of the Court Chief Justice Roberts Horne et al. v. Department of Agriculture Ruckelshaus v Monsanto, where the Court held that the requiring companies to provide information, including trade secrets, as a condition of manufacturing dangerous chemical was not a taking because the received a valuable Government benefit in the form of a license to sell, not precedent because selling in commerce is not a governmental benefit that Government can "hold hostage No need to remand to determine just compensation, as the Government has already done so by establishing a fine that was equal to the fair market value of the raisins. The Hornes should just be relieved of the obligation to pay the fines and penalties. Bauman v. Ross (can deduct special benefits received from just compensation sought) inapplicable because does "not create a generally applicable exception to the usual compensation rule, based on asserted regulatory benefits of the sort at issue here." EEBN Event October 25,

26 Thomas Concurring Horne et al. v. Department of Agriculture Remand would be a fruitless exercise EEBN Event October 25,

27 Horne et al. v. Department of Agriculture Breyer, joined by Ginsburg and Kagan, concurring in part and dissenting in part Disagree only that it should not be remanded to determine just compensation Hornes have not established that the reserve program takes raisins without just compensation If the benefit received from the disposition of the reserved raisins equal or exceed the value of the raisins taken, then just compensation is provided Bauman v Ross is not distinguishable Takings Clause requires compensation in an amount equal to the value of the reserve raisins, adjusted to account for the benefits received and the Hornes have not demonstrated to the contrary EEBN Event October 25,

28 Sotomayor, dissenting Horne et al. v. Department of Agriculture Loretto sets a high bar Per se taking requires each and every property right be taken The Order does not deprive Hornes of all property rights and they have not made a Penn Central argument The property right at issue here is raisins they own and are subject to the reserve requirement to be a taking, each property right in that portion of the raisins must be destroyed Order provides that producers retain the right to net proceeds from the disposition of the reserved raisins and ensures that the raisins will be sold at prices and in a manner to maximize producer returns EEBN Event October 25,

29 Sotomayor, dissenting Horne et al. v. Department of Agriculture Tho those returns are subject to market forces that is not unusual and the Court has emphasized that reduction in value is not necessarily a taking When property is a commodity, the owner's most important interest is the income from it Tho the Order infringes on that potential income, it does not inexorably eliminate it That one property right is not destroyed is sufficient to hold that there has been no Loretto per se taking EEBN Event October 25,

30 Sotomayor, dissenting Horne et al. v. Department of Agriculture Takings jurisprudence establishes the Government may condition the ability to offer goods on the giving up of certain property interests without effecting a per se taking Court concedes that the growers retain an interest in the distribution of the proceeds from the reserved raisins, so the Order has not destroyed all rights in the reserves, thus not per se taking can have occurred Court creates "doctrinal damage" by "otherwise blurring the bright line and the expansion of this otherwise narrow category." It "unsettles an important area of our jurisprudence." EEBN Event October 25,

31 Sotomayor, dissenting Horne et al. v. Department of Agriculture Takings jurisprudence establishes the Government may condition the ability to offer goods on the giving up of certain property interests without effecting a per se taking Court concedes that the growers retain an interest in the distribution of the proceeds from the reserved raisins, so the Order has not destroyed all rights in the reserves, thus not per se taking can have occurred Court creates "doctrinal damage" by "otherwise blurring the bright line and the expansion of this otherwise narrow category." It "unsettles an important area of our jurisprudence." EEBN Event October 25,

32 Missouri State Court Land Use Cases EEBN Event October 25,

33 Lindbergh Legal Fund, LLC v. City of Creve Coeur (Mo. App. 2015) The City s approval of the conditional use permit could not be reviewed as a contested case A contested case requires a formal hearing that determines the legal rights of the parties To qualify for a contested case, parties must be given an opportunity for a formal hearing with the presentation of evidence, including sworn testimony and cross-examination of witnesses EEBN Event October 25,

34 Campbell v. County Commission of Franklin County (Mo. App. 2015) What constitutes a valid public hearing under RSMo? Public hearing on a zoning amendment requires, at a minimum, that the public be given the opportunity to present its views about the subject matter of the proposed zoning amendment EEBN Event October 25,

35 Labrayere v. Bohr Farms LLC (Mo. 2015) Section precludes recovery of non-economic damages for items such as loss of use and enjoyment, inconvenience, or discomfort caused by a crop or animal production nuisance Held constitutional because the limitation results in a public benefit, not a purely private benefit Additionally, while the section limits the recovery to economic damages, a fair market rental value is a proper calculation of damages for temporary nuisance claims EEBN Event October 25,

36 Metro St. Louis Sewer Dist. v. City of Bellefontaine Neighbors (Mo. App. 2015) Does one political subdivision have standing to bring a claim of inverse condemnation against another political subdivision? Section RSMo grants the City the right to take private property for public use. The court will not extend the statute to apply to public land - In United States v. 50 Acres of Land, the United States Supreme Court held that local governments are entitled to compensation when the federal government take their land or rights, the same as a private party Pursuant to Rule 83.02, the Court transferred this case to the Missouri Supreme Court for the purposes of reexamining existing law EEBN Event October 25,

37 McNeil v. City of Kansas City (Mo. App. 2015) Petition for wrongful demolition Decision in 2002, Woodson case, held that a demolition order that did not include findings as mandated by the City Code was invalid Here, McNeil s building was demolished in 2009 pursuant to 2001 order of condemnation of dangerous building order was void for failure to include findings of fact, thus in excess of City s delegated authority pursuant to its own ordinances Since the demolition was void it was subject to collateral attack EEBN Event October 25,

38 Dynasty Home L.C. v. Public Water Supply District No. 3 of Franklin County (Mo. App. 2015) Requiring a property owner to pay delinquent utility service charges for a tenant is not a taking of property Section deems water service as furnished to both an owner and occupant - Offers the district a remedy to sue both - States that tenants are not liable for an owner s delinquency but owner s are liable for their tenant s delinquency Because the legislative framework places the risk of delinquency on the property owner, the district did not inversely condemn the property by requiring the payment of the delinquency EEBN Event October 25,

39 State ex rel. Watson v. Sherry (Mo. App. 2014) Under the TIF Act, a city may utilize eminent domain for redevelopment purposes - Section (3) provides, in pertinent part, that no property for a redevelopment project shall be acquired by eminent domain later than five years from the adoption of the ordinance approving such redevelopment project[.] - Acondemnor acquires the condemned property through eminent domain on the date on which the condemnor pays the amount of the commissioner s award into the court EEBN Event October 25,

40 Avery Contracting, LLC v. Niehaus (Mo. App. 2015) Avery sought a court order for a permanent easement across land owned by private landowners and the MHTC pursuant to RSMo To bring a claim under RSMo, the plaintiff must plead all three points of the claim; - 1) that the plaintiff owns the property - 2) no private or public roads run through or alongside the property, and - 3) the new road is necessary Avery s failure to plead this second element was fatal to its petition Avery s condemnation claim against the MHTC was dismissed because there is no language in RSMo that gives individuals the right to take public property EEBN Event October 25,

41 Questions/Comments EEBN Event October 25,

42 Presented By: Steve Chinn STINSON LEONARD STREET LLP 1201 Walnut, Suite 2900 Kansas City, MO & Steven Lucas CUNNINGHAM, VOGEL & ROST, P.C. legal counselors to local government 333 S. Kirkwood Road, Suite 300 St. Louis, MO These materials and the related presentation are intended for discussion purposes and to provide those attending the meeting with useful ideas and guidance on the topics and issues covered. The materials and the comments of the presenters do not constitute, and should not be treated as, legal advice regarding the use of any particular technique, device, or suggestion, or its legal advantages or disadvantages. Although we have made every effort to ensure the accuracy of these materials and the presentation, neither the attorneys presenting at this meeting nor Cunningham, Vogel & Rost, P.C. assume any responsibility for any individual s reliance on the written or oral information presented. EEBN Event October 25,