Back to the Mar-Apr 2021 issue

Court Upholds Local Government Sign Ordinance

CONSTITUTIONAL LAW
Sign ordinance

The Town of Pembroke, New Hampshire, has a sign ordinance that bans electronic signs in all its zoning districts, except for its commercial district and certain nearby areas, for aesthetic reasons. The ordinance provides an exemption for electronic signs that federal, state, or municipal laws require. The nonprofit organization Signs for Jesus and the Hillside Baptist Church (together referred to as “church”) jointly submitted a request to the town seeking an exemption to the sign regulations that would permit the church to display religious messages on an electronic sign on its property. The church property is in a zoning district subject to the ban on electronic signs.

Neon sign

The town’s Zoning Board of Adjustment denied the church’s request, concluding that the sign would “detract from the rural character of the Route 3 corridor,” and noting the town’s interest in maintaining its “quaint little New England village” aesthetic. The church sued, claiming that the denial was unconstitutional because it violated the church’s First Amendment free-speech rights. The church also claimed the denial violated the federal Religious Land Use and Institutionalized Persons Act by treating comparable nonreligious entities more favorably and by imposing a substantial burden on the church.

The district court granted summary judgment (court-issued judgment without a trial) in the town’s favor. The 1st U.S. Circuit Court of Appeals affirmed the district court’s decision and upheld the sign ordinance. The Court of Appeals concluded that the challenged provisions were content-neutral regulations that were narrowly tailored to serve a significant governmental interest, and that they left open ample alternative methods of communication. The Court of Appeals also concluded that there was no evidence that the town had imposed a substantial burden on the church’s exercise of religion or had applied the ordinance in an uneven way. Signs for Jesus v. Town of Pembroke, 977 F.3d 93 (1st Cir. 2020).


ADMINISTRATIVE LAW
Record on appeal

Several environmental advocacy groups and the Fond du Lac Band of Lake Superior Chippewa filed two combined appeals with the Minnesota Court of Appeals, challenging the decision of the Minnesota Pollution Control Agency (MPCA) to grant an air-emissions permit to a mining company for a proposed copper-nickel-platinum group elements mine operation. The challengers claimed the MPCA had failed to adequately consider whether the mining company intends to operate within the limits of the permit for which it applied or if, instead, it was seeking a “sham” permit.

To support their claim, the challengers relied on documents that were not part of the administrative record that the MPCA had considered before it issued its decision. The MPCA claimed that the additional documents, which were submitted after the close of the public comment period but before the MPCA issued its decision, were outside the administrative record and should not be considered on appeal.

The Minnesota Court of Appeals agreed that the challenged documents were not part of the administrative record that the MPCA was required to submit on appeal. But the Court of Appeals also concluded that, in evaluating a challenge to an agency’s decision for failure to adequately consider an important aspect of a permitting decision, documents that were submitted to the agency at any time before it issues its decision may be considered. The Court of Appeals sent the case back to the MPCA for additional proceedings, ruling that the existing administrative record was insufficient for the Court of Appeals to determine whether the MPCA’s permitting decision should be reversed because it was arbitrary and capricious or because it was unsupported by substantial evidence. In the Matter of Air Emissions Permit No. 13700345- 101 for PolyMet Mining, Inc., 943 N.W.2d 399 (Minn. Ct. App. 2020). Note: The Minnesota Supreme Court has granted review of this appeal.


GOVERNMENTAL IMMUNITIES
Qualified immunity

In response to an anonymous tip made to the Arkansas State Police Child Abuse Hotline, county and city law enforcement staff conducted an investigation into whether an 18-year-old man had, several years ago on several occasions, molested four of his younger sisters and a fifth unnamed individual. The investigation included confidential interviews with the sisters, their siblings, and their parents. At the time of the interviews, the four sisters were all under the age of 16. No criminal charges were ever filed. The family that was investigated later became the subject of the reality television show, “19 Kids and Counting.”

A tabloid obtained and published the county and city investigation reports detailing the alleged sexual misconduct.

A tabloid obtained and published the county and city investigation reports detailing the alleged sexual misconduct. The reports were poorly redacted and contained enough detail to identify the sisters. The four sisters sued several parties, including the city, the county, and several city and county officials in their individual and official capacities, claiming the release of the poorly redacted reports had violated their constitutional and common-law rights, including their constitutional right to privacy.

The city and county defendants filed a motion to dismiss the lawsuit, claiming in part that they were entitled to qualified immunity. The district court denied the motion. The defendants appealed, and a three-judge panel of the 8th U.S. Circuit Court of Appeals affirmed the district court’s decision. The defendants appealed the panel’s decision, and there was a rehearing before all the judges for the 8th Circuit. The Court of Appeals reversed the panel’s decision, concluding that the county and city defendants were entitled to qualified immunity because there is no clearly established constitutional right to informational privacy. Dillard v. O’Kelley, 961 F.3d 1048 (8th Cir. 2020). Note: The sisters have filed a petition asking the U.S. Supreme Court to review the Court of Appeals’ decision.


LAND USE
Nonconforming use statue

The nonconforming use statute (Minnesota Statutes, section 462.357, subdivision 1e) authorizes an existing land use to continue, but not to expand, after a zoning change is made that prohibits the use. The statute also provides that a nonconforming use will terminate if it is “discontinued” for more than one year. AIM Development (USA), LLC, owns property in the City of Sartell that previously had operated as a landfill for a paper mill’s waste. The landfill became a nonconforming use in 1989 and continued to collect the paper mill’s waste. Fire destroyed the paper mill in 2012, and AIM purchased the landfill property in January 2013.

Scale of justiceIn January 2014, AIM applied to the Minnesota Pollution Control Agency (MPCA), seeking a permit to deposit waste generated by new sources that were not connected to the paper mill site. The city objected to AIM’s application, and a dispute arose about the existence and scope of AIM’s nonconforming use rights. AIM sued in district court, seeking a declaratory judgment to establish its rights. The city claimed in part that the nonconforming landfill use had terminated by discontinuance because no waste had been deposited on the property for more than one year. AIM claimed in response that it had continuously maintained the property and had intended to use it as a landfill in the future once it received the required MPCA permit.

The district court ruled that there were unresolved fact questions about whether the landfill use had been discontinued for more than one year. Further, the district court ruled, even if the landfill use had been discontinued, AIM could prove that it had not abandoned the nonconforming use if it could demonstrate that it had intended to use the property as a landfill.

The city claimed in part that the nonconforming landfill use had terminated by discontinuance because no waste had been deposited on the property for more than one year.The Minnesota Court of Appeals affirmed the district court’s decision in part, reversed it in part, and sent the case back to the district court for additional proceedings. The Court of Appeals agreed that there were fact questions about whether the nonconforming landfill use had been discontinued, but it ruled that the district court had erred by interpreting the nonconforming use statute to include an abandonment requirement.

The Court of Appeals ruled that the city was only required to prove that the nonconforming landfill use had been discontinued for more than one year, and that it did not need to prove that AIM had intended to abandon the use of the property as a landfill. AIM Development (USA), LLC v. City of Sartell, No. A18-0443 (Minn. Ct. App. Dec. 7, 2020) (unpublished decision). Note: The League of Minnesota Cities Insurance Trust represented the city. Also, in an earlier related appeal, the Minnesota Supreme Court ruled that AIM’s proposed use of the property — as a landfill for new sources not connected to the paper mill site — did not constitute a prohibited expansion of the original nonconforming use. The Supreme Court sent the case back to the Court of Appeals for it to consider the city’s additional arguments about why it has authority to prohibit AIM’s proposal to operate a landfill.

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