Minnesota Cities Magazine
More from May-Jun 2016 issue

From the Bench: The Case of a Nonconforming Sign

Picture of a store with a large sign in front of it.LAND USE
Nonconforming use
Meleyco Partnership No. 2 (Meleyco) had a pylon sign lawfully constructed on its property. Meleyco entered into a lease giving Pawn America the right to use the property and the pylon sign through April 30, 2014. Meleyco’s sign became a legal, nonconforming use after the City of West St. Paul adopted an ordinance restricting the use of pylon signs. In November 2012, Pawn America notified Meleyco that it was relocating. Pawn America stopped retail operations at the property on Nov. 14, 2012, but continued to use the property for storage and other business-related purposes until April 30, 2014. In April 2013, Pawn America covered the pylon sign.

On Feb. 7, 2014, the city’s zoning administrator sent Meleyco a letter stating that the nonconforming use of the sign is considered abandoned since the property has been vacant for more than one year, and directing Meleyco to remove it. Meleyco appealed this determination, and the City Council upheld the decision, concluding: “Because there was no business operating at the property for a period of more than one year, the sign meets the definition of an abandoned sign pursuant to the Zoning Ordinance.” Meleyco appealed, and the district court ruled in the city’s favor. The Minnesota Court of Appeals reversed the district court’s decision and concluded that the nonconforming use had not been abandoned for more than one year. The Court of Appeals reasoned that for a nonconforming use to lose its legal status under the city’s ordinance, the discontinuance of the nonconforming use must be attributable, at least in part, to the actions of the property owner, and cannot be based solely on a tenant’s actions. Meleyco Partnership No. 2 v. City of West St. Paul, N.W.2d (Minn. Ct. App. 2016).

EMPLOYMENT LAW
Whistleblower Act
Yvette Ford sued the Minneapolis Public Schools (MPS), claiming she was retaliated against in violation of the Minnesota Whistleblower Act after she made reports to MPS administrators about allegedly illegal activities occurring in her department. On April 22, 2008, Ford’s supervisor told Ford that her job would be eliminated for the next school year. Ford claims that in May and June of 2008, she made further reports to MPS administrators detailing financial improprieties, disability discrimination, and retaliation. Ford’s last day of work was June 30, 2008. Ford sued MPS on June 29, 2010.

The district court dismissed Ford’s lawsuit as untimely after concluding that a two-year statute of limitations applies to her whistleblower claim. The Minnesota Court of Appeals reversed the district court’s decision and held that a six-year statute of limitations applies. The Minnesota Supreme Court affirmed the Court of Appeals’ decision and held that a six-year statute of limitations applies to a claim of retaliation for reporting violations of law under the Minnesota Whistleblower Act. The Supreme Court reasoned that the six-year statute of limitations applies because the type of legal claim at issue has been created by statute and does not have a counterpart in the common law that has been created by judicial decisions. Ford v. Minneapolis Public Schools, N.W.2d (Minn. 2016).

CRIMINAL LAW
Synthetic drug law
James Carlson was the owner and operator of a head shop in Duluth that sold synthetic drugs. Carlson and his domes¬tic partner, Lava Haugen, were convicted of several crimes, including selling misbranded synthetic drugs in violation of the Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act). Under the Analogue Act, it is unlawful to knowingly or intentionally manufacture, distribute, or dispense a controlled substance analogue. Carlson and Haugen appealed their convictions, claiming, in part, that the Analogue Act is unconstitutional because it does not provide adequate notice of what acts are criminal, and it permits arbitrary enforcement that violates the Due Process Clause. The federal district court and the 8th U.S. Circuit Court of Appeals upheld the convictions and ruled that the Analogue Act is constitutional. The Court of Appeals concluded that the Analogue Act is not unconstitutionally vague because its requirement that a violation must be “knowingly or intentionally” committed narrows the scope of its prohibition, and limits prosecutorial discretion. U.S. v. Carlson, 810 F.3d 544 (8th Cir. 2016).

GOVERNMENTAL IMMUNITY
Vicarious liability
“Jane Doe” sued the Columbia Heights School District, claiming it was vicariously liable for its employee’s sexual abuse of a student. Vicarious liability is a type of liability that is imposed on an employer because of the actions of its employee. It is different from direct liability that is imposed on an employer because of the employer’s own actions, or lack of actions, such as a claim of direct liability for negligence in hiring or supervising an employee.

The school district moved for summary judgment, claiming that the Municipal Tort Claims Act limits a municipality’s vicarious liability for its employees’ actions to only those actions that occur within the scope of their employment or duties. In response, Doe claimed that a municipality is subject to broader liability under common law doctrines of vicarious liability. The district court and the Minnesota Court of Appeals ruled in the school district’s favor in this issue of first impression.

The Court of Appeals held that the school district was immune under the Municipal Tort Claims Act because the employee’s conduct was indisputably for his own personal reasons, and that he was not acting on the school district’s behalf in the performance of lawfully assigned duties or tasks when he sexually abused Doe. The Court of Appeals also affirmed the district court’s dismissal of Doe’s claims of direct liability against the school district for negligence and negligent supervision, concluding that the employee’s sexual abuse of Doe was not foreseeable. Jane Doe 175 v. Columbia Heights Sch. Dist., 873 N.W.2d 352 (Minn. Ct. App. 2016).

PUBLIC MEETINGS
Disorderly conduct conviction
A jury convicted Robin Hensel of disorderly conduct for disturbing a city council meeting. Hensel arrived at the council meeting in question and seated herself in the front row of the public-seating area. There were no chairs between the raised dais where the city council sits and the public-seating area. Before the meeting was called to order, Hensel twice moved her chair forward into the area in between the dais and the public-seating area. At a previous meeting, the mayor’s husband had been allowed to sit in this area, which was set up with chairs and tables for a work session that had taken place before the council meeting. After Hensel refused repeated requests to move her chair back to the public-seating area, the police chief removed her from the meeting. As a result of Hensel’s conduct, the council was not able to start its meeting on time.

Hensel appealed her conviction, claiming, in part, that the disorderly conduct statute is both unconstitutionally vague and overbroad in violation of the First Amendment. The Minnesota Court of Appeals held that the statute is not void for vagueness or overbreadth. The Court of Appeals noted that, although the statute does not define the term “disturb” or itemize what conduct disturbs a meeting, it can be understood as prohibiting conduct that could be expected to interfere with the ability to conduct a meeting. The Court of Appeals also concluded that the statute is a valid time, place, and manner restriction on speech that is narrowly tailored to serve a significant government interest. On April 19, the Minnesota Supreme Court agreed to review the Court of Appeals’ decision. State v. Hensel, N.W.2d (Minn. Ct. App. 2016).

CIVIL RIGHTS LAWSUIT
Picture of dollar sign on scales of justice, illustrating attorney's fees Attorney’s fees
Under federal law, a court has discretion to allow the prevailing party reasonable attorney’s fees in a civil rights lawsuit filed under 42 U.S. Code, section 1983. The U.S. Supreme Court, when interpreting the federal law, has held that a prevailing defendant in a Section 1983 lawsuit can only recover attorney’s fees if “the plaintiff ’s action was frivolous, unreasonable, or without foundation.” The Idaho Supreme Court awarded attorney’s fees to the City of Boise, a prevailing defendant, without first determining that the plaintiff ’s action was frivolous, unreasonable, or without foundation. The Idaho Supreme Court concluded that it was not bound by the U.S. Supreme Court’s interpretation of the federal law because the limitation on the award of attorney’s fees to a prevailing defendant is not expressly stated in the federal law. The U.S. Supreme Court reversed the Idaho Supreme Court’s decision, and held that the Idaho Supreme Court, like any other state or federal court, is bound by the U.S. Supreme Court’s interpretation of a federal law. James v. City of Boise, ID, 136 S.Ct. 685 (2016).

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

Read the May-June 2016 issue of Minnesota Cities magazine.

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