Minnesota Cities Magazine

From the Bench: SCOTUS Strikes Down Municipal Sign Ordinance

CONSTITUTIONAL LAW
Sign ordinance

SO15Sign The Town of Gilbert, Arizona, adopted a sign code that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including ideological signs, political signs, and temporary directional signs. Temporary directional signs include any sign intended to provide direction to a “qualifying event.” A qualifying event is defined as an “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar nonprofit organization.” Temporary directional signs receive less favorable treatment under the sign code in terms of allowable size and time for display.

The Good News Community Church hosts Sunday services at various locations, and began placing signs in the town providing directions to those services. The town cited the church for exceeding the time limits for displaying a temporary directional sign and for failing to include an event date on the signs. The church sued, challenging the sign code under the First Amendment. The U.S. Supreme Court held that the sign code was unconstitutional, reasoning that it was a content-based regulation that did not survive a strict-scrutiny review under which a challenged regulation must be narrowly tailored to serve a compelling state interest. The Supreme Court reasoned that the sign code is content-based on its face because it defines the categories of temporary, political, and ideological signs on the basis of their messages and subjects each category to different restrictions. Reed v. Town of Gilbert, AZ, 135 S. Ct. 2218 (2015).

LAND USE
Conditional use permit

Axelson was operating the Hidden Valley Campground under a conditional use permit (CUP) authorizing a campground containing 20 mobile home park sites and 200 campsites, provided that the campground “not encompass any further area.” The County Board revoked the CUP after determining that Axelson had expanded the size and location of the campground. Before revoking the CUP, the County Board provided Axelson with a notice of its intent to revoke and held two public hearings at which Axelson was allowed to testify and question the county’s evidence. Axelson appealed the revocation, claiming the county had not demonstrated that he had violated a CUP condition. The Minnesota Court of Appeals affirmed the county’s decision, holding that the County Board had reasonably determined that the campground now encompasses a greater area, and that Axelson had been provided sufficient due process. Axelson v. Goodhue County Bd. of Comm’rs, No. A14-1179 (Minn. Ct. App. Apr. 6, 2015) (unpublished opinion).

GOVERNMENTAL IMMUNITIES
Official immunity

Property owners sued, claiming the city had been negligent in designing, approving, and constructing an inadequate storm drainage system that had resulted in flooding that damaged their homes. The property owners also claimed that the city’s design, approval, or construction of the inadequate system had created a nuisance on their property. The city moved for summary judgment on the basis of statutory immunity for the policy decisions it had made regarding the system, and on the basis of vicarious official immunity for the discretionary decisions made by a private contractor hired to act as city engineer to design the system. The district court granted summary judgment on the claims based on negligent approval and design, but denied summary judgment on the nuisance claim. The district court also dismissed the negligent construction claim, ruling that the property owners had failed to plead any facts to demonstrate that negligent construction caused the flooding.

The Minnesota Court of Appeals affirmed in part and reversed in part, holding that the city was entitled to statutory immunity and vicarious official immunity from all of the remaining claims against it. The Court of Appeals rejected the property owners’ argument that a private contractor cannot qualify as a public official eligible for the protection of official immunity, noting that such a holding “would severely compromise the flexibility of smaller cities as they seek to efficiently obtain services at a lower volume than that often required by larger cities.” The Court of Appeals concluded that because the contractor was functioning as the city’s engineer, it was entitled to official immunity for its discretionary acts in that role, including its design of the storm drainage system. Kariniemi v. City of Rockford, 863 N.W.2d 430 (Minn. Ct. App. 2015). Note: LMCIT represented the city.

LAND USE
Conditional use permit

Volunteers of America-Minnesota (VOA) appealed, challenging the city’s denial of its application for a conditional use permit (CUP) seeking to operate a residential re-entry facility for adults transitioning out of the federal corrections system. The VOA claimed the denial was arbitrary and capricious. The city denied the CUP because the application did not satisfy the general CUP conditions in its ordinance. First, the City Council found that the proposed facility was not in substantial compliance with the comprehensive and district plans, which identify industrial redevelopment as a key priority for the area. Second, the City Council found that the facility would impede the development of surrounding industrial properties. The Minnesota Court of Appeals affirmed the city’s decision, holding that its reasons for denial were legally sufficient and were supported by the record. Volunteers of America-Minnesota v. City of Saint Paul, No. A14- 0865 (Minn. Ct. App. Jan. 20, 2015) (unpublished opinion).

TELECOMMUNICATIONS LAW
Cell phone tower

The Quorum Court of Washington County, Arkansas, denied an application from Smith Communications, LLC, to construct a cell phone tower. The county held two public hearings to consider the application—one on June 4, 2013, and one on June 24, 2013. Minutes from the June 4 hearing were made available to Smith on June 21—three days before the second public hearing. On June 28, 2013, the county sent Smith an email containing a letter of denial stating that its application was denied on June 24, 2013. The county sent another email to Smith the same day, adding that the minutes and video of the two hearings would act as the county’s written reasons for denial. The minutes from the June 24 hearing were not available to Smith until July 22, 2013.

Smith sued, claiming the denial was not “in writing and supported by substantial evidence contained in a written record,” as required by the Telecommunications Act. The 8th U.S. Circuit Court of Appeals affirmed the denial, concluding that Smith received adequate notice of the reasons for the denial, and that any violation of the Telecommunications Act by the county’s failure to make the minutes of the second hearing available “essentially contemporaneously” with the denial was, at most, a harmless error. The Court of Appeals also concluded that the denial was based on substantial evidence, noting that the county had found that the proposed tower was not compatible with neighboring property, would interfere with the use and enjoyment of the surrounding area, would significantly alter nearby residents’ views, and would harm property values. Smith Communications, LLC v. Washington County, AR, 785 F.3d 1253 (8th Cir. 2015).

DATA PRACTICES ACT
Conflicting data classifications

Harlow was fired from his job as a psychiatrist at the Minnesota Security Hospital after an incident with a SO15privatefilepatient. Harlow sued the Minnesota Department of Human Services (DHS); Proffitt, the hospital administrator; and Barry, DHS deputy commissioner, alleging violations of the Minnesota Government Data Practices Act (MGDPA) and defamation based on statements Proffitt and Barry made about the incident and Harlow’s termination. The DHS conducted both an employment investigation and a licensing investigation. Under Minnesota Statutes, section 13.43, subdivision 2a, “the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action” are public data. But under Minnesota Statutes, section 13.41, subdivision 4, “active investigative data relating to the investigation of complaints against any licensee” are confidential data. The district court denied the summary judgment motion made by the DHS, Proffitt, and Barry. The Minnesota Court of Appeals reversed, holding that the data in the employment investigation became public at the time of Harlow’s firing, regardless of the ongoing license investigation; therefore, any statements about the public data in the employment file did not violate the MGDPA.

The Court of Appeals also concluded that the challenged statements were either based on public data or based on the opinions of Proffitt and Barry, and not on any government data. Finally, the Court of Appeals held that Proffitt and Barry were entitled to absolute immunity from the defamation claims because they were high-ranking officials who made statements integral to their positions about a matter important to the public interest. Harlow v. Minnesota Dep’t of Human Servs., 862 N.W.2d 704 (Minn. Ct. App. 2015).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.

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