MSBA Top 25 Blawg for 2010

Want another reason to follow the LMC Codification Service Blog? Here it is: the Minnesota State Bar Association (MSBA) recently named this blog as one of its top 25 blawgs (law blog) for 2010! We are really excited about being named on the list and we hope you share our excitement!

As you regular readers know, I recently took the blog over from Rachel Carlson so I can't take credit for the work of getting the blog recognized. So my congratulations and thanks to Rachel for her hard work on getting the blog to where it is.

I know that many of you readers get to the blog by clicking the link in the League's Cities Bulletin, which is a great way to get there. But, I wanted to take the time to remind you that you can sign up to follow the blog so you you get regular updates when new articles are posted. Not sure about following or don't know how? There is a Blogger website that explains what following is and the process to do it.

Meet the new bloggers!

I wanted to take the opportunity to introduce myself as the new blogger for the LMC Codification Service Blog. I am Alexis (Lexi) Stangl and have been a staff attorney in the research department at the League since 2007. While I deal with many areas of municipal law, my specialty subject areas are elections, animal regulation, dangerous properties, and foreclosures. I am now adding codification services to my list of specialties. I am excited to be blogging about codification and ordinance issues and to work with Duke Addicks, LMC Special Counsel and LMC Codification Manager, on some of the League's codification services.

From time to time you will also be reading entries from Jeanette Behr, another staff attorney in the research department. Like me, Jeanette works with many areas of municipal law, but she specializes in utilities, special assessments, and many budget related issues. Jeanette is looking forward to being a featured guest blogger.

For those of you who might be wondering what happened to Rachel, she has moved to a new position as Loss Control Manager with the League. Rachel has left some pretty big shoes for me to fill, but I look forward to sharing my thoughts, insight, advice, and quandaries about ordinances and codes. I also really hope that some of you will share your comments, questions, or suggested topics with me.

Ordinances on Disposing Animals in City Custody

While not a pleasant thing to think (or read) about, there may come a time when your city has to dispose of an animal in its custody. Cities generally do have the authority to dispose of animals in their custody as long as they follow the process spelled out by law, rule, or ordinance adopted pursuant to a law. See Minn. Stat. § 35.71; 7 U.S.C. § 2158.

There is no one-size-fits-all process for disposal of animals. The holding period and process depends on the circumstances. The minimum holding requirement is generally 5 days or more, but notice and hearing requirements could potentially extend the holding period. There are several sections in state law that govern disposal of animals. While some statutes are very detailed, this entry will only focus on the basics and point you in the right direction. The League’s memo “Animal Regulation in Cities,” which will be coming out this month, covers each situation in more detail.

Because there are several sections of law that cover disposition of animals, it is a good idea to periodically review any ordinances the city has relating to the disposition of animals to ensure they comply with the current state laws. It is also important to make sure that city practices are in-line with state law and city ordinances. Improper disposition of an animal can result in liability for the city. (See e.g. Soucek v. Banham, 524 N.W.2d 478 (Minn. Ct. Ap. 1994); Molenaar v. United Cattle Co., 553 N.W.2d 424 (Minn. Ct. Ap. 1996).)

The statutory process for disposing of unclaimed animals is the most general and covers many situations for which there is not a more specific law. (See Minn. Stat. § 35.71) Unclaimed animals must be held for at least five regular business days so they may be claimed by their owner. The city can, by ordinance, require a longer holding period. While the law does not provide notice and hearing requirements, it would be prudent for the city to notify owners or others with an interest in the animal that the animal has been seized and is being held. There should also be some process for the owner to reclaim the animal. Certain institutions are authorized to take unclaimed animals at the end of the holding period.

If no one claims the animal during the holding period and all of the statutory and due process requirements have been met, the city may dispose of the animal. State law does not dictate how animals should be destroyed, but it does prohibit the use of a decompression chamber and unjustifiably administering poison or noxious drugs or substances. (See Minn. Stat. § 343.37 and Minn. Stat. § 343.27)

There are many organizations that make recommendations or have guidelines on euthanizing animals. While these are not binding on cities (and, indeed, are not written for cities), they may provide helpful information for cities in making decisions on how animals will be destroyed. Two examples are “Statement on Euthanasia Methods for Animals in Shelters,” Humane Society of the United States (March 31, 2009); “AVMA Guidelines on Euthanasia,” American Veterinary Medical Association (June 2007).

As mentioned above, there are laws that are specific to animals taken into custody under certain circumstances. Here are a few other situations where statutes or rules discuss disposition of animals:

• Dangerous dogs. While there are many timelines that must be followed when dealing with a dangerous dog, the general rule is that a dangerous dog that has been confiscated must be held for 7 days to allow the owner to reclaim the dog and meet other requirements. If the dog is not reclaimed within seven days, it may be disposed of in the same manner as unclaimed animals. There are also detailed notice and procedural requirements provided for by law. Keep in mind that there are many nuances and requirements that must be met when dealing with dangerous dogs so the seven day holding period may vary. (See Minn. Stat. §§ 347.50-.565)

• Animal cruelty. An animal that is taken into custody under certain animal cruelty provisions must be held for 10 days. The law outlines notice, hearing, and procedural requirements that must be followed. If after all of the procedures outlined in the law are followed, the city may dispose of the animal. (Minn. Stat. § 343.235.)

• Abandoned animals. If the city is in possession of an animal and turns it over to a vet, boarding facility, or commercial facility, and the owner does not claim the animal from that facility within 10 days, the law provides a process for the facility to dispose of the animal. (Minn. Stat. § 346.37)

• Rabies. There are many provisions for disposing of an animal that has been exposed to rabies, has rabies, or has bitten a person. (Minnesota Rules 1705.1090-.1210)

• Emergencies. There are some situations where an animal may be killed immediately. These situations are relatively rare and killing animals immediately should generally be avoided. The city attorney can talk with animal control officers to help them understand the situations where an animal be immediately killed. (See e.g. Minn. Stats. § 347.17 and § 347.03)

Conclusion:

State law and rules provide several different procedures for disposing of animals in city custody. It is a good idea to make sure that the city ordinances and practices comply with all of the different provisions to ensure that the city is lawfully disposing of animals.

About Guest Author Alexis Stangl:

Alexis is a research staff attorney at the League and one of her areas of interest is in animal control and regulation issues. If you have questions, please contact Alexis at 651-281-1227 or astangl@lmc.org. Also, keep a lookout for the League’s new animal regulation memo that will be introduced this winter!

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The Barking Dog Blues: Ordinance Standards for Dogs

At some point, we have all probably had to listen to a neighbor’s dog barking its head off. And speaking as someone who has lived next to overzealous barkers, I know it can be really annoying. Barking dogs can be a livability issue for people subject to frequent barking. Sometimes the issue comes to the city council to pass an ordinance that will put a stop to the racket and make life peaceful once again. But it isn’t always that easy.

Cities have explicit authority to regulate the keeping of animals at Minn. Stat. § 412. 221, Subd 21 and such ordinances are fairly common. I see many ordinances that say something like this:

No person owning, operating, having charge of or occupying any building or premises shall keep or allow to be kept any animal which shall by any noise disturb the peace and quiet of any persons in the vicinity thereof.

While it seems like this will do the trick, there are some problems with this language. A barking dog ordinance must give guidance to the pet owners, neighbors, and enforcement officers as to what would be considered allowable or prohibited barking, whining, or other noisy conduct. People have different thresholds of how much barking would “disturb the peace and quiet.” For some, barking all day might not be a disturbance, but for others, a single bark would be. So, this sort of language is very open to interpretation, which leads to arbitrary or inconsistent enforcement, which can ultimately lead to a legal challenge.

In fact, the language quoted above was the subject of a challenge in City of Edina v Dreher, 454 N.W.2d 621 (Minn. Ct. App 1990). The court concluded that the language was unconstitutionally vague and deprived the challenger of his due process rights. The court was concerned that the ordinance, as written, did not provide an objective standard that would allow the owner or enforcement officers to determine if the barking violated the ordinance. The lack of objective standards could potentially lead to arbitrary enforcement.

Ordinances on barking dogs should include objective criteria to determining how much barking is too much. One way to do this is to designate barking, howling, etc. for more than a pre-determined number of minutes as a violation of the ordinance. The Minnesota Basic Code states:

Habitual barking. It shall be unlawful for any person to keep or harbor a dog which habitually barks or cries. Habitual barking shall be defined as barking for repeated intervals of at least five minutes with less than one minute of interruption. The barking must also be audible off of the owner's or caretaker's premises.

With this sort of objective standard, it is easier for everyone to determine if the barking violates the ordinance.

Conclusion:

Cities may adopt ordinances regulating dog barking and howling as a nuisance. It is best to include objective standards in this type of ordinance to help ensure that enforcement is not arbitrary. Additional discussion concerning vague ordinances can be found in our previous entry at: http://lmccodification.blogspot.com/2010/05/recent-case-law-developments-vague.html.

About Guest Author Alexis Stangl:

Alexis is a research staff attorney at the League and one of her areas of interest is in animal control and regulation issues. If you have questions, please contact Alexis at 651-281-1227 or astangl@lmc.org. Also, keep a lookout for the League’s new animal regulation memo that will be introduced this winter!  

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Drafting Licensing Ordinances Part II

In my last entry on drafting licensing ordinances, I suggested that the bulk of any licensing ordinance will be devoted to minimizing hazards or nuisances associated with the licensed activity. Since this is where the hard work must be invested, this entry helps to make drafting easier by offering some tips you might want to consider.

When drafting the provisions, I suggest that a drafter first familiarize themselves with the basics of the regulated business or activity. What are its primary objectives? What are the component parts that allow it to carry out its essential functions? For example, the primary business of a liquor licensee is to sell liquor. To do this, it must attract groups of people to consume the liquor through on-site advertisement, it must provide entertainment and manage crowds. Some of the secondary components of a liquor business are receiving and storing product, waste management and building upkeep.

Existing city staff are some of the best experts available to an ordinance drafter trying to understand the essential functions of a licensed activity. In particular, police and public works staff can be of assistance. For example, police staff may be a great internal resource on the workings of pawn shops (a commonly licensed business) and some of the potential problems associated with such licensees.

Once the drafter has researched the business and broken it down into its essential components, some thought should be given to the hazards or nuisances that may be associated with each individual, essential function or component of the licensed business. For example, if receiving deliveries is an essential part of the business, what noise concerns does this generate? What visual blight concerns? Finally, how can these concerns be alleviated through ordinance requirements?

Here is a checklist of potential hazards or nuisances that should be considered for each component of the business.

Noise

Will the licensed activity generate dangerous or annoying levels of noise? A licensing ordinance can adopt state noise regulations. But annoying noise can also be minimized and or eliminated by ordinance requirements for fencing/screening and landscaping (berms), limits on hours of operation, limits on hours for truck deliveries, and limits on numbers of truck arriving and where they idle.

Dust, particulate matter & smoke

Will the licensed activity generate dust or smoke that creates a nuisance or health hazard for neighbors? I previously discussed zoning performance standards for smoke at this blog entry: http://lmccodification.blogspot.com/2010/08/smoke-readers-zoning-ordinances.html

Smoke and dust, like noise, are regulated by state standards. However, smoke and dust may also be alleviated by ordinance provisions related to landscaping and fencing, limits on truck deliveries (along with preferred routes) and limits on operation during high winds.

Visual blight and litter

Will the licensed activity generate large crowds with a concordant amount of litter or waste? Is the licensed activity prone to creating visual blight? Fencing and screening are obvious solutions to blight. However, you may also wish to draft ordinance provisions requiring regular trash pick-up, property maintenance, trash enclosures and limits on-site storage of waste. In addition, you may wish to limit, prohibit or screen outdoor sales, storage or displays.

Lighting and glare

Will the licensed activity generate lighting or glare that annoys neighbors? Lighting and glare issues can be limited by requiring a lighting plan, by prohibiting lights from being pointed towards neighboring lots, and by requiring sensors or light fixtures that limit the amount of light emitted more than 80 degrees above the nadir.

Crowds and safety

Will the licensed activity generate large crowds and disorderly conduct? Ordinance provisions can alleviate some of these concerns by requiring advance notice to the city of special events, requiring additional permitting for outdoor events, or by requiring security such as a “bouncer.”

Conclusion

The checklist above is not meant to be exhaustive. Some unusual activities may create hazards or nuisances not often encountered (vibration, explosion, heat or odor). However, taking the time to learn the essentials of activity to be licensed will often be enough of a road map to identify what potential nuisances might occur. Once these nuisances are identified, clearly drafted ordinance provisions can save your city a great deal of headache farther down the line.

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Tips for Drafting City Licensing Ordinances

Cities license certain businesses and activities to protect the public health and welfare. Often a licensed activity is hazardous in its own right or may be harmless on its own, but prone to hazardous side-effects.

An example of a direct hazard relates to dog licensing - cities license dogs to prevent roving animals that bite and spread diseases (particularly rabies). In contrast, cities regulate massage parlors to prevent harmful side-effects. Nothing about massage is inherently dangerous, but certain criminal activities related to prostitution and human trafficking are frequently associated with massage parlors. Such side-effects can pose a danger to participants, encourage criminality and create neighborhood blight.

Cities also regulate certain businesses, because state law mandates licensing. Liquor licensing is an example of mandated licensing. Cities may opt to be completely “dry” and not have liquor for sale at all within their boundaries. But all “wet” cities, who choose to allow liquor sales must license retailers. State law goes even farther to establish the types of licenses and even some fees.

Conversely, state law prohibits city licensing in other instances. For example, most cities are not permitted to license plumbers anymore. Generally, when city licensing is prohibited, a state license is available. In these instances, the state has expressed an interest in creating uniform standards for statewide licensing. Before drafting a licensing ordinance, it is important to verify that city authority to license exists. A good place to check for authority would be Minn. Stat ch. 412 and the LMC Handbook for Minnesota Cities chapter on licensing: http://www.lmc.org/media/document/1/chapter11.pdf

Once an activity is deemed hazardous, licensing serves one or all of the following purposes:

 Alerts the city that someone in the city is engaged in the hazardous activity or business;

 Allows the city to conduct background checks on persons conducting the business;

 Allows the city to impose reasonable rules on the activity that are a condition of the license;

 Requires the licensee to carry insurance adequate to protect the public from harm resulting from the business of activity.

Drafting Suggestions

When drafting a licensing ordinance, emphasis should be placed on finding language that addresses the hazards posed by the business or activity. The following questions can serve as a “checklist” to help you draft licensing provisions.

 Does state law require specific provisions or language in our local ordinance? For example, state law sets numerous criteria for city tobacco license provisions. See Minn. Stat. § 461.12.

 What type of hazards does this type of activity pose to the community? What nuisance side-effects can it potentially create? This will probably be the lengthiest part of your ordinance. For example, liquor establishments can create noise, litter and light pollution nuisances. Specific provisions should be drafted to address these issues. See our previous entry on drafting city liquor ordinances at: http://lmccodification.blogspot.com/2010/09/is-your-liquor-ordinance-tight-enough.html

 Would a background check on the persons conducting the business increase public safety? For example, background checks are required by the state for liquor licensees and common for massage parlors, pawn shops and door to door peddlers.

 Are there persons who should be exempt from the licensing requirements? For example, it may be unnecessary to require a dog license for the city police dog. In addition, state law exempts blind persons from tobacco licensing fees.

 How will we recover our costs in administering the ordinance requirements? For example, through licensing fees or reimbursement for background check costs.

 What penalties do we want to impose for ordinance violations? In addition to criminal penalties, are administrative sanctions authorized or required? For example, administrative sanctions are required for tobacco and liquor licensees.

 Would insurance requirements increase public safety? For example, state law requires liquor licensees to carry dram shop insurance. Insurance may also be a good idea for public dances, dangerous dogs and body art technicians.

Finally, every licensing ordinance should contain procedures for imposing penalties, revoking licenses and dealing with bad conduct by licensees. Establishing procedures provides licensees with due process – a fair chance to be heard and dispute claims against them. This may reduce conflict and litigation related to licensing. This section of the ordinance should provide at minimum:
 A process for notifying the licensee that the city is considering revoking their license or imposing a penalty (for example, notice sent by mail 10 days before consideration of the matter);

 A process to allow the licensee to request a hearing on the matter where they may dispute statements made against them;

 A hearing process before a disinterested party (before council or city staff);

 A process to inform the licensee of the final decision on the matter (for example, a written summary mailed to the applicant within 20 days of the hearing).

Conclusion:

Licensing is an important tool for all cities to limit hazardous activities and their secondary effects. Licensing is often an area involving an interaction of local ordinance and state law, so ordinances must be drafted with care. However, once state law requirements are met, ordinance drafting should focus on the harms posed by the activity and mitigating those dangers.

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Vroom! Vroom! City Ordinances, Golf Carts, Scooters & Mini-Trucks

These days residents have many options for getting around town. With all the motorized scooters, mini-trucks, mini-bikes, golf carts and ATVs on the market, some might worry that city streets are starting to look a little crowded. Cities have authority to regulate many of these new vehicles and decide whether or not to allow them on city streets.

Proponents of mini-vehicles and golf carts often stress improving accessibility and mobility for their users. The US Department of Transportation has put together an extremely comprehensive document on the problems facing seniors and the disabled in maintaining mobility. Golf carts as a potential solution are discussed at page 355 at this link: http://goo.gl/MMC0

In addition, many supporters of mini-vehicles highlight their fuel efficiency and the environmental benefits of their use. Some of these issues were discussed in depth at a recent city of Duluth council meeting at this link: http://goo.gl/waWe

The type of regulation city ordinance may impose depends on the type of vehicle. Cities must permit some use of some types of motorized vehicles on city streets and may permit some others by passing a local ordinance. For some types of vehicles, state statute sets specific ordinance criteria.

Vehicles the City Must Allow:

Cities must allow motorized wheelchair operation, including scooters, tricycles and similar devices used by a disabled person for mobility purposes. Minn. Stat. § 169.212 permits these devices to be operated anywhere a pedestrian may walk and on streets with a speed under 35 mph where a sidewalk is not available or unsafe. Cities may authorize and regulate the use of motorized mobility devices on city streets that have a speed higher than 35 mph by ordinance.

Cities must also allow motorized foot scooters commonly used by teens and children for recreation on city streets. Riders must comply with state requirements for safety at Minn. Stat. § 169.225 and cannot ride on sidewalks. Cities can prohibit the motorized scooters on trails designated for foot traffic only.

Vehicles That May Be Authorized by Local Ordinance:

Cities may authorize and regulate the use of golf carts, smaller ATVs and mini-trucks on city streets. Cities must adopt an ordinance to regulate these vehicles. Without a local ordinance, these vehicles are not permitted on city streets.

When adopting an ordinance permitting one or all of these vehicles, it is important to know that state statute sets criteria that must be in the ordinance. For example, local ordinance must require golf carts operating on streets to display a slow moving vehicle emblem. In addition, cities must require insurance on all three types of vehicles.

These statutory requirements can be found at Minn. Stat. § 169.045. In addition, LMC has a model ordinance for these vehicles that meets the state law requirements. This model ordinance can be found in the Appendix of the LMC memo “Special Vehicles Operating on City Streets” at this link: http://www.lmc.org/media/document/1/special_vehicles.pdf

Finally, it is important to note that city ordinance will only apply to city streets. State and county streets will continue to be governed by regulations adopted by those governing bodies.

Conclusion:

Additional in-depth help on researching this topic can be found in the LMC memo “Special Vehicles Operating on City Streets” mentioned above. Since the many types of vehicles available and terminology to describe them can be confusing, the LMC memo includes pictures for ease of reference. Minnesota House Research also has a helpful memo titled “Motorized Scooters and Other Low-Power Vehicles” at: http://www.house.leg.state.mn.us/hrd/pubs/scooter.pdf

Photo courtesy of the National Archives on Flickr at: http://www.flickr.com/photos/nationaalarchief/4192749411/sizes/s/in/photostream/

Ordinance Language for Inspections & the Fourth Amendment

Often I see language related to entry onto and inspection of private property in city ordinances. For example:

The authorized employees of the City, bearing proper credentials and identification, shall be permitted to enter all properties for the purpose of inspection, observations, measurement, sampling, and testing.

Another recent example I have found states:

Animal Control Officers shall not enter the private dwelling of an individual for purposes of seizing animals or otherwise enforcing the provisions of this Chapter without first obtaining a search warrant. However, an Animal Control Officer is empowered to enter upon a property adjacent to a private dwelling for purposes of enforcing the provisions of this Chapter.

It’s important to stress that such language is not directly contrary to law. However, in practice, when such language is utilized by city staff to actually obtain entry to private property - problems may occur in some fact situations.

Administrative Inspections and the Fourth Amendment

This type of inspection language may create a false sense of security for staff that all entries onto private property are permitted by city ordinance. Of particular concern are non-public safety staff that perform inspections less frequently than police officers. For example, a city clerk trying to draft a warning letter for nuisances (garbage) on private property.

It is important to remember that even “administrative searches are significant intrusions upon the interests protected by the Fourth Amendment.” (See Camara v. Municipal Court, 387 523 (1967). The US Constitution Fourth Amendment prohibits unreasonable searches and seizures of persons or property without a search warrant.

There are some important exceptions to this blanket rule (discussed below). Generally, however, under the US Constitution, persons are promised a “reasonable expectation of privacy.” (See Katz v U.S., 389 US 347, 360 (1967). City ordinance provisions cannot and do not override these provisions.

A person’s protections under the Fourth Amendment apply as soon as a city inspector enters what is known as the “curtilage” of the person’s property. The curtilage, historically, is defined as the area adjacent to a person’s house where “intimate activities associated with domestic life and the privacies of the home” take place. Similar protections apply to businesses. (See Boyd v. United States, 116 US 616 (1886); United States v Oliver, 466 US 170, 1984; Dunn v U.S., 480 US 294 (1987).

As a result, generally, when city staff must enter private property to enforce an ordinance or perform an inspection one of the following is needed:

1) Permission or voluntary consent from an appropriate person; OR
2) An administrative warrant issued by a court with jurisdiction.

When entering a property with consent, it is important to obtain consent from the right person. Consent should not be obtained from minor children or guests. Consent should be obtained from the person “in control of the property” – this could be a renter or owner, depending on the fact circumstances. If possible, consent should be obtained in writing.

City staff may enter onto private property without consent or a warrant only in very limited circumstances:

1) Emergencies; and
2) To inspect heavily regulated industries (liquor dealers, firearms dealers, junkyards)

Consequences for Fourth Amendment Violations

Entering onto private property in violation of the US Constitution’s Fourth Amendment may give rise to legal claims against the city. Sometimes such claims are brought under the Federal Civil Rights Act – also called “1983 Claims.” Civil Rights Act claims can be costly for a city, as they are not subject to state tort law liability limits and may involve the award of attorneys fees to prevailing parties (these can be significant and more costly than the damages award).

Conclusion

Portions of this entry were “borrowed” with permission from the LMC Administrative Searches and Seizures packet. If you would like to obtain a full copy of the packet, please email me at rcarlson@lmc.org.

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5,000 Clicks! Thanks for Reading!

After just a few months of being up and running -the LMC Codification Blog has hit 5,000 clicks!  So its time to say "thanks!" for reading!  thanks for commenting! As always, if you have any questions or concerns about the blog contact me at rcarlson@lmc.org.  Often when I write about a subject, I have more sample ordinances than I can post.  The easiest way to get these is through a quick email.  Finally, if you're interested in reading about a specific topic - or have an ordinance problem that keeps cropping up - please let me know.  I'm always looking for topic suggestions and constructive feeback.

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City Ordinances on Feeding Wild Animals

Some nuisances are easy to spot – they are as large as the rusting car in the neighbor’s front yard. Some nuisances are a little harder to define and their far-reaching effects more difficult to explain. A nuisance of this type that cities often struggle with is the feeding of wild animals or strays.

Problems Associated with Unattended Feeding:

Feeding of wild animals in rural areas is a common practice. However, in urban areas with smaller lots, the activity can quickly become a nuisance that cities wish to regulate. Feed left out for “desirable animals” such as stray (or feral) cats, dogs and deer also may attract the following:

1) Rats;
2) Raccoons;
3) Skunks;
4) Coyotes (who do not attack humans, but may attack small cats and dogs);
5) Bears (on occasion depending on locale).

It is important to note that even “desirable animals” for whom the proffered food is intended may become nuisances in large numbers. Deer can quickly ruin neighboring lawns, trees and gardens. Stray cats who linger nearby for food left outside can quickly multiply.

Attracting wild animals to a neighborhood can create some obvious problems, such as property damage (for example, raccoons tearing apart garbage), increased risk of attack (even wild turkeys may become aggressive during breeding season) and disease (for example, rabies and the roundworm parasites carried by raccoons http://www.dnr.state.mn.us/livingwith_wildlife/raccoons/index.html).

However, some less obvious problems with feeding wild animals can be just as problematic. Feeding can alter normal patterns of movement and congregation among animals. The more food, the denser the congregation of animals looking to eat becomes. This can spread disease among the animals and cause reproduction rates to skyrocket. Becoming too used to humans may make animals more susceptible to harm.

City Authority to Regulate Feedings & Sample Language:

Cities are specifically authorized to regulate the keeping of animals at Minn. Stat. § 412.221 Subd 21. Cities can and have adopted ordinances limiting feeding of wild animals. The City of Coon Rapids was recently in the news for its new ordinance (See http://tinyurl.com/29s39b3)

Here are some sources for sample ordinances from Minnesota cities on feeding wild and stray animals:

• City of Arden Hills, Chapter 4, Section 420.10: http://tinyurl.com/24gb4vt

• City of Madelia, Chapter 9, Section 92.110 http://www.madeliamn.com/Ordinance/26.php#JD_92.080

• Minnesota Basic Code Chapter 9, Section 91.19: http://tinyurl.com/2ew79fz

Some cities merely regulate the feeding of certain types of wild animals such as deer or waterfowl. For example:

Hermantown City Code, Chapter 6, Section 640.06 Feeding Wild Bears Prohibited. No person shall intentionally feed or attempt to feed a wild bear within the city. No person shall place any feed for any wild animal out of doors if a bear has been attracted to the feeding source.

Conclusion:

Often people leaving food out for animals do not understand the far-reaching effects of their actions. Some cities supplement their ordinance provisions with educational materials. For example, the City of Minnetonka posted this online information about wild turkeys: http://www.eminnetonka.com/news.cfm?story_id=WildTurkeys201009. Cities wishing to develop educational efforts about the problems with feeding wild animals may also like to review the DNR’s extensive materials on this subject. The DNR materials offer detailed information on numerous animal types and are available at this link: http://www.dnr.state.mn.us/livingwith_wildlife/index.html

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Ordinances Can Help Cities Preserve Streets

The need to maintain street infrastructure is a pressing and real concern for many cities in these tight budget times. It’s no secret that city streets cost a lot of money. The cost of street building materials is linked closely to the cost of oil – as oil prices rise, so do infrastructure costs. Even small street repairs can carry a large price tag.

In recent news reports, the American Society of Civil Engineers estimated the unfunded cost of repairing and updating the nation's roads, bridges, railways, ports, water systems and other critical assets at $2.2 trillion. (See http://tinyurl.com/2uqwsjl).

Since city streets are so expensive to build and repair, it makes good sense to use all the tools available to cities to protect existing roads. Ordinances are one tool available. City ordinances can help cities reduce the wear and tear on city existing streets – thereby reducing the need for costly repairs and extending the life of roads. Here are some suggested ordinance provisions aimed at protecting streets:

Heavy Load Restrictions:

Minn. Stat. § 169.87 allows cities to impose weight restrictions for trucks and commercial vehicles on city streets. In addition, weight restrictions may be imposed on all vehicles when the street, by reason of deterioration, rain, snow, or other climatic conditions, will be seriously damaged or destroyed by the use. Restrictions must be imposed by local ordinance and signage must be added to streets before the restrictions take effect. Local restrictions will not apply to:

• some implements of husbandry;
• school buses and HeadStart buses;
• some trucks transporting milk;
• some garbage and recycling vehicles; and
• some city vehicles (such as fire trucks).

Violation of city weight restrictions may subject a vehicle driver (or owner) to stiff civil penalties. In addition, Minn. Stat. § 169.88 requires the driver (or owner) to compensate the city for the damage to the street.

Once weight restrictions are in place, cities may also permit heavier loads pursuant to Minn. Stat. § 169.86. Terms for issuance of permits should be stated in local ordinance. In issuing a permit for a heavier load, cities may:

• prescribe conditions for operation of the vehicle to prevent undue damage to the road;
• require insurance, bond or other security in an amount necessary to compensate the city for any injury or damage to any roadway or road structure;
• require insurance, bond or other security in an amount necessary to compensate third parties for any injury or damage to persons or property.

The ability to permit heavier loads when needed, allows cities to set reasonable weight limits, while still retaining a degree of flexibility to accommodate special projects or events.

Damage from Negligence and Overt Acts:

Minn. Stat. § 160.2715 criminalizes obstructing and damaging state, town and county right-of-ways. Because of the peculiar wording of this chapter of law, these protections might not apply to cities (See Minn. Stat. § 160.02, Subd 25). As a result, cities may wish to adopt local ordinance provisions that prevent and criminalize:

• obstructing any street or ditch;
• digging any holes in any street;
• removing any earth, gravel, or rock from the street or ditches;
• committing actions that mar, damage, or tamper with any structure, work, material, equipment, tools, signs, markers, signals, paving, guardrails, drains, or any other street appurtenance on or along any street.

Organize Solid Waste, Garbage Collection:

Large solid waste (garbage) and recycling trucks can generate wear and tear on city streets. In part to limit such traffic, cities are authorized to organize (and limit) collection of garbage and recycling in their communities through local ordinance. It is important to note, however, that organizing collection involves more than passing a simple ordinance. State law requires cities to publish notice of intent to organize collection, hold public hearings and meet with stakeholders under very specific timelines.

Work, Excavation and Maintenance in the ROW:

The right-of-way (ROW) of city streets is a popular place to be. The ROW typically includes the traveled street as well as the ditches, shoulders and additional easement area on each side. All sorts of utility and cable lines may be located in the ROW, as well as private facilities of abutting landowners (for example, fences, signs and sprinkler systems).

Unfortunately, all this activity can result in damage to city streets. A solid ROW ordinance will require workers or contractors in the ROW to:

• notify the city that work in the ROW will occur;
• obtain a city permit prior to commencing work;
• repair any damage they create;
• adequately address safety issues (for example, warning cones and signs); and
• carry adequate bond or insurance to guarantee that damages are repaired.

A good ROW ordinance will insure that damages to the street created by private contractors to further their business interest are not being repaired by city taxpayers. LMC has a model ROW ordinance available at this link: http://www.lmc.org/media/document/1/modelrowordinance.pdf

The LMCIT memo Do You Know What’s In Your Right-of-Way? is a helpful guide to crafting provisions as well. This is available at: http://www.lmc.org/media/document/1/doyouknowwhatsinyourrightofway.pdf

Allowing Alternative Traffic:

Wear and tear from heavy vehicles may also be reduced by allowing residents to use alternative (and lighter) means of transportation on city streets. Minn. Stat. § 169.045 authorizes cities to adopt a local ordinance allowing special vehicle use on designated roadways – including motorized golf carts, four-wheel all-terrain vehicles, or mini trucks.

City ordinance must designate the specific roadways where the special vehicle traffic is allowed (this can only cover city streets – not state or county roads). In addition, the ordinance must require a city permit and insurance. More on this topic (including a sample ordinance) can be found in the LMC memo Special Vehicles Operating on City Streets at http://tinyurl.com/23fou6e

Some cities have also adopted ordinances that assist in the creation of “complete streets.” These ordinances facilitate greater use of non-motorized traffic such as bicycles on city streets. See this link for a recent news item for the City of Rochester: http://tinyurl.com/3ab75j7

Conclusion

Maintaining streets can be a daunting and expensive task for cities. While not a complete solution to the problem of deteriorating infrastructure, ordinances can help cities preserve and extend the useful life of their streets.

photo provided by: http://www.publicdomainpictures.net/view-image.php?image=2973&picture=construction-zone

How to Select a Codifier for City Ordinances

Hiring a codifier for city ordinances is a unique process – very different from purchasing city vehicles or equipment. When the quotes for services arrive and the (sometimes significant) money needs to be spent, city officials and staff may wonder - what are the characteristics of a good codifier? Or a great one? How do we differentiate among services offered?

It is essential to know that not all codifiers offer the types same services. When reviewing a quote, it is important to ask questions, so that the city knows exactly what it is getting for its money. Here are some suggestions for questions to ask a potential codifier – to help your city make an apples to apples, oranges to oranges comparison of vendors.

Legal Review

The most important question to ask a potential codifier is “do you provide legal review of city ordinances?” Some codifiers are simply organizers and publishers. They organize and number content from A-Z, create a table of contents, index and smartly bind your ordinances into a book. They do not look at content in ordinances. They cannot tell you whether or not your adult use ordinance passes constitutional muster. They can only tell you it is located in Chapter 10, at page 80 and is cross-referenced with “bookstores.”

Other vendors will review your ordinances during the codification process to make sure they are consistent with state and federal law (in addition to organizing and indexing). They will issue you a legal report, highlighting areas of concern. If the city works closely with an attorney to review and update ordinances on a regular basis, the city may not need legal review – just organization. However, if the city ordinance book is older or has been only infrequently updated, legal review is essential.

When seeking legal review from a codifier, some good follow-up questions are:

• How many Minnesota codebooks have you previously reviewed?
• Do you use attorneys to provide the legal review? Or only “legal editors.”
• Will the codifier send a sample legal review with their quote?
• At what point in the editing process with the legal report be provided?

Use of Graphics, Maps and Charts

Many cities these days are seeking to incorporate graphics, maps and charts into city ordinances. Use of graphics can simplify reading and explaining ordinances for both city staff and citizens. (I have previously blogged about this subject at this link: http://tinyurl.com/2evqg58).

If your city is interested in adding graphics (or may be in the future), it is important to discuss this with the codifier up front. Codification vendors may use very different computer software programs to organize ordinances. Not all programs readily incorporate graphics.

In addition, different codifiers may have different preferred methods for incorporating graphics (as links, as appendices at the ends of text, or added directly into the text). These methods may not be consistent with council and staff vision for using graphics. As a result, it is important to ask the codification vendor for samples of previous codes that included graphics.

Finally, cities should ask whether an additional fee is charged to incorporate graphics, charts or maps.

Electronic Formats and Options:

Many cities would like to feature their city code on their website. This is both a convenience to city residents and a timesaver for city staff. Electronic format and access issues should be discussed in depth with a potential codification vendor. For example:

• Does the codifier offer an electronic version of the city code? Is this version available on disk? Can it be placed on the city website?
• Is the electronic format searchable by “key word?”
• Are there extra fees associated with electronic copies?
• What software does the codifier use and will it be compatible with the city’s existing IT resources? Does the codifier offer IT training and phone support?
• Can the internet version of the code be updated as new ordinances are adopted? How frequently? At what charge?
• Can the codifier provide a list of cities (and web addresses) for city clients who have posted their codes online?

Conclusion

When buying a new car it may be easy for the buyer to call to mind the features they most want (air conditioning, side airbags, sun roof). When hiring a vendor to update the city code, the features of a good codifier may be less obvious. Hopefully asking some of these questions during the initial hiring stages will help avoid problems (or disappointed expectations) farther down the road.

Quick Tips on Understanding & Writing Ordinances

Recently I had the chance to speak to a group of new city clerks. Their excitement for a speech called “Quick Tips on Understanding & Writing Ordinances” took me a little bit by surprise. I was speaking just before lunch, and I expected several attendees (at least) to attempt to sneak out for a bite. Instead, several actually stayed for questions and missed most of their lunch.

I guess I shouldn’t have been surprised – ordinance drafting is a unique task found only in local government. Previous private sector jobs could easily prepare you for contract management, budgeting and personnel supervision – but it’s hard to think of anything analogous to ordinance drafting.

So here are my quick tips for understanding and writing better ordinances – whether you’re a novice or an expert.

Tip One:

Always keep in mind that your mission with writing an ordinance is to inform the reader what type of conduct is allowed or not allowed. Your goal is clarity. Your goal is not to impress (or confuse) the reader with your advanced knowledge of the more obscure reaches of the English language. This means avoiding legalese and using cross-references sparingly. Consider using pictures or diagrams to supplement text (see my previous blog entry on images in ordinances at http://tinyurl.com/2evqg58).

Tip Two:

Use definitions excessively. If you feel positive that you know the definition of “lawn and garden center” – there is a 100% chance that someone else will feel positive you’re wrong. A Minnesota city was once required to litigate all the way to the MN Supreme Court over this exact issue. See Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604 (Minn. 1980). The best way to avoid conflicts over language is to define words carefully and often.

Tip Three:

Be cautious about using samples or models. Google has put a world of information at our fingertips – not all of it is good. Be wary of any sample that is older than 2-3 years. Ordinances have a very short shelf life, as they are affected by changing state laws and court cases. Be especially wary of older land use ordinances. Also be wary of out of state ordinances. Cities in other states may be subject to dramatically different laws than in Minnesota. For example, state laws may dictate very different holding periods for seized animals or abandoned cars.

Finally, be cautious about using model ordinances created by special interest groups or non-profits. Sometimes the agenda of the model ordinance writer is not at all clear from looking at the text (for example a model electronic billboard ordinance written by the billboard industry). Using models from special interest groups may leave regulation gaps that do not favor the city’s interests.

Tip Four:

Have your city attorney review your ordinances. This is especially true of land use, nuisance and ordinances affecting free speech (such as adult uses, signs, assemblies such as parades and protests, etc). Paying for your city attorney to review ordinances up front is always less expensive than defending a lawsuit further down the road.

Conclusion

Ordinance drafting can be a daunting task, but it doesn’t need to be difficult. A focus on clarity and definitions can go a long way. If you have another tip that has helped you, feel free to share in the comment section.

Image provided by: http://www.publicdomainpictures.net/view-image.php?image=3348&picture=pencil

Is Your Liquor Ordinance Tight Enough to Hold Water (Or Beer)?

Its closing time, and you may be wondering where your liquor ordinance is. Is it working for your city? Is it drafted to require patrons to stop drinking and start heading home in a prompt manner? Does it require bar staff to vacate the city premises within ½ hour of closing? Or is it letting those wily partiers simply close the doors and claim that they’re having a private party where (wink, wink) no one is being served.

Or is it license renewal time and you’re faced with a bar owner who won’t maintain the bar’s property. Are you wondering if you’ll be able to deny the renewal, because of the litter on the property? Have you checked your ordinance lately?

Or maybe the city has a bar owner who doesn’t hire adequate security and allows fights to break out. Or regularly violates noise restrictions and now the city would like to revoke the establishment’s liquor license. Does your ordinance address the procedures the council should follow to provide sufficient due process? Council may fear letting the bar owner continue to endanger the public, but also the lawsuit that might result if the disgruntled bar owner doesn’t get a fair process.

Over the years, I have heard staff and officials voice these types of nuisance concerns about liquor establishments in their city many times. Often they want to know if state law covers their concerns and provides a means to address them. Most of the time, however, it simply doesn’t. This surprises many city officials.

State Law Regulation of Liquor Establishments:

The Minnesota Liquor Act heavily regulates two main issues. First, it regulates the issuance of licenses (types of licenses, who gets them, insurance required, license fees, etc). Second, it regulates illegal sales (to minors or obviously intoxicated persons, at the wrong day or time, etc.) and related dram shop liability issues. The Liquor Act doesn’t offer much to help cities trying to deal with nuisance behaviors that can occur around liquor establishments – for example, unsightly properties, noise and disorderly conduct.

Fortunately, the Liquor Act favors city ordinance regulation on these topics. Minn. Stat. § 340A.509 states, “a local authority may impose further restrictions and regulations on the sale and possession of alcoholic beverages within its limits.” As a result, city ordinance may always be more restrictive than the Liquor Act and it can certainly “fill in the blanks” where state law is silent.

What Should We Include in Our Liquor Ordinance?

Here are some suggestions for provisions to include in your local liquor ordinance to make it tight enough to hold water (or beer). These suggestions all relate to issues generally not covered in depth by the Liquor Act. Most of these suggestions are drawn from the Model LMC Liquor Licensing Ordinance that can be found at this link: http://www.lmc.org/media/document/1/liquorlicensingandregulation.pdf. You can also find detailed sample language for these provisions there.

Evacuation Clause:

An evacuation clause requires the bar to have a “last call” and to have customers leave promptly at closing time. This prevents lingering and socializing that may create a noise nuisance or other disorderly conduct. It also reduces the temptation for illegal sales when the bar doors have closed to the public and the supposed “private party” commences. Some evacuation clauses also require staff to leave the premises within a reasonable time after closing, while still allowing for clean-up and other end of shift activities.

Nudity and Adult Uses:

Cities may ban liquor establishments from having adult entertainment or nudity on the premises. The First Amendment offers important protections to exotic dancers and other adult uses. However, the First Amendment does not protect the right of people to drink while performing (or watching) exotic dancing.

Location of Liquor Establishments:

For cities, the only state Liquor Act restriction on liquor establishment location relates to state facilities and zoning. Minn. Stat. § 340A.412 prohibits locating a liquor establishment in “areas restricted against commercial uses through zoning.” Cities who don’t want liquor establishments near schools, daycares, churches or youth centers should put these restrictions in their local ordinance. If a city doesn’t have zoning in place, the city may also wish to restrict location near residences as well.

Types of Licenses:

Over the past few years, the State Legislature has added several new types of licenses to the Liquor Act. It has also broadened the categories of businesses that may receive existing licenses. If you haven’t updated your liquor ordinance in the past decade, you may be missing out on brew-pub licenses, culinary class licenses and wine licenses for theaters. Cities are not required to issue these types of licenses, but if they choose to issue, must authorize them through local ordinance.

Times and Days of Sale:

Cities are authorized by Minn. Stat. § 340A.504 to restrict times and days of sale beyond state law requirements. However, restricted on-sale hours for intoxicating liquor must apply equally to on-sale hours of 3.2 percent malt liquor. A city may not permit the sale of alcoholic beverages during hours when the sale is prohibited by the Liquor Act.

Define Liquor Act Terms More Restrictively:

The Liquor Act allows restaurants to obtain on-sale licenses. Minn. Stat. § 340A.101 Subd. 25 defines the term restaurant pretty simply as “an establishment . . . where meals are regularly prepared on the premises and served at tables to the general public, and having a minimum seating capacity for guests as prescribed by the appropriate license issuing authority.” Cities may wish to define a restaurant more narrowly. For example, requiring a certain percentage of the profits to be related to food sales, require a minimum seating capacity, require menus and waiters, and prohibit “heat and eat” type establishments where only pizza is reheated and offered to customers.

Cities may also wish to define the terms “non-profit” or “charitable organization” for the purpose of temporary 3.2 beer licenses under Minn. Stat. § 340A.403 and “compact and contiguous” for the purposes of Minn. Stat. § 340A.410. These are both relatively vague terms found in the Liquor Act that raise concerns from time to time.

Due Process Concerns

Violations of city liquor ordinances can result in both civil and criminal penalties. As a result, ordinances should be written clearly to avoid US Constitutional 14th Amendment concerns (ordinances provisions that are vague will be considered void). The city liquor ordinance should specify the types of behaviors/problems that may result in penalties. This puts the liquor licensee on notice that they may be punished –either civilly or criminally – for violations.

There are also state law due process requirements that should be met in the city liquor ordinance. The Liquor Act at Minn. Stat. § 340A.415 specifically enumerates acts for which a license may be revoked or a penalty imposed. This is a limited list that includes:

• Selling alcoholic beverages to another retail licensee for the purpose of resale;

• Purchasing alcoholic beverages from another retail licensee for the purpose of resale

• Conducting or permitting the conduct of gambling on the licensed premises in violation of the law;

• Failing to remove or dispose of alcoholic beverages when ordered by the commissioner to do so; and

• Failing to comply with an applicable statute, rule, or ordinance relating to alcoholic beverages,

As a result, cities are limited by the Liquor Act to revoking licenses or imposing civil penalties for issues that violate city ordinance. Prohibited nuisance behaviors should be listed and defined in the liquor ordinance, if the city would like to revoke licenses or impose penalties related to these issues. For example, litter, noise, disorderly conduct, etc. The city may also choose to simply cross-reference other sections of city ordinance on these topics in the liquor ordinance.

Finally, the Liquor Act requires that notice and hearing must be provided to a licensee prior to a suspicion or revocation. As a result, city ordinance should also specify procedures for notice, hearing and imposition of any penalty.

Conclusion

Liquor establishments can be thriving local businesses that add to the local community and economy. However, these types of businesses may also create unique nuisance concerns. A carefully drafted city liquor ordinance must be the bedrock for city regulation and enforcement efforts.

Is Your Land Use Ordinance Out of Date?

Cities are authorized to adopt land use controls in the form of zoning and subdivision ordinances by a state law known as the “Minnesota Municipal Planning Act.” (MPA). The MPA requires uniformity with state law for many (if not most) aspects of zoning and subdivision. Some (but not many) non-substantive provisions do allow minor variation - but only through a charter provision. There are only 107 charter cities in Minnesota.  As a result, for most Minnesota cities, uniformity is premium and the norm.

Frequent Changes in State Law

The MPA has been in effect since the 1970’s, but has not been without controversy. As a result, the MPA is frequently changed and amended, requiring cities to monitor state law and adapt local zoning and subdivision controls on a frequent basis to be uniform.
Land use controls that are not up to date may create an unwanted (and potentially expensive) liability for cities. In addition, out of date ordinances may render important land use controls unenforceable in a court of law, thus leaving the city with no protections against a problematic development or land use.

Suggestions for Ordinance Review

As recently as the 2009 legislative session important changes were made to the MPA. If you have not reviewed your land use ordinances since then, there is a possibility they are out of date.
The following are some common mistakes in land use ordinances.

Timelines. State law sets timelines for review of both zoning and subdivision applications. Zoning applications must be reviewed under the “60-Day Rule” found at Minn. Stat. 15.99. Preliminary plat applications must be reviewed within 120 days and final plats 60 days pursuant to Minn. Stat. § 462.358 Subd. 3b. City ordinances that contain timelines not consistent with these requirements should be updated.

Non-Conforming Uses. Legal non-conforming uses are uses that do not conform to the current zoning requirements, but were legal at the time they were commenced. As a result, the MPA provides non-conforming uses with certain protections that allow for their continued existence, renovation and rebuilding (but not expansion). The state legislature amended the MPA provisions on non-conforming uses in 2001 and 2004 and as recently as the 2009 legislative session. As a result, cities should compare their existing provisions with the most current version of the law at Minn. Stat. § 462.357 Subd. 1c.

Manufactured Homes and Parks. The MPA provides that no city zoning regulation may prohibit manufactured homes that are built in conformance with the manufactured home building code and otherwise comply with all other zoning ordinances. Cities can apply architectural and aesthetic requirements to manufactured homes only if the same requirements also apply to all other single-family homes in the zoning district. In addition, manufactured home parks are by law a conditional use in any zoning district that allows the construction or placement of a building used or intended to be used by two or more families. Many local ordinances do not reflect these state law requirements and may need to be updated.

Conclusion

Annual review of city land use ordinances is essential to prevent unanticipated liability in ordinance enforcement. This article highlights only a few areas of frequent concern. More information about updating your land use ordinances can be found in the LMCIT article “Land Use Ordinance Mistakes” available at: http://www.lmc.org/media/document/1/landuseordinancemistakes.pdf

City Zoning Ordinances Can Be Improved with Images & Diagrams

When drafting the LMC Zoning Guide a few years ago, I included a section called “suggestions for drafting a readable zoning ordinance.” My number one tip was “use graphics, tables, maps and illustrations wherever possible.”

Describing sight triangles in legal language can be arduous. Explaining in text where to begin measuring a fence can be complex. Often painstakingly detailed and accurate text can leave even the most earnest readers still scratching their heads saying “now wait a minute, I think I got it – but let me read it again.” Images and graphics can improve readability for citizens and officials by a hundred fold.

Why is readability in ordinance language important? Readability – the use of clear concise language – reduces staff time in explaining nuance. Readability also decreases cases of accidental non-compliance. These are the cases of the sympathetic, well-intentioned citizen who “thought they installed grandmother’s access ramp in the right place.” But now it will cost them $10,000.00 to move everything. These types of cases can demand extensive enforcement efforts from city staff and create difficult political situations for city council members. It is much easier on the front end to take the time to craft ordinances that are easy to understand. Images can help.

Sample Images Used in City Ordinances:

Here are some great examples of where a well placed diagram is worth a thousand words:

1. City of Minnetonka, MN Zoning Code, Section 300.02, Definitions:

Building height” - the vertical distance above a reference datum measured to the highest point of the coping of a flat roof or to the deck line of a mansard roof or to the average height of the highest gable of a pitched or hipped roof. The reference datum shall be selected by either of the following, whichever yields a greater building height:
a) the elevation of the highest adjoining sidewalk or ground surface within a five foot horizontal distance of the exterior wall of the building when such sidewalk or ground surface is not more than 10 feet above lowest grade. (No. 1)
b) an elevation 10 feet higher than the lowest grade when the sidewalk or ground surface described in item 1 above is more than 10 feet above lowest grade. (No. 2) (Figure 3)

2. City of Minnetonka, MN Zoning Code, Section 300.02, Definitions:

“Cul-de-sac” - a street with a single means of ingress/egress and having a turnaround at the end. A turnaround may be in the form of a circular “bubble” of pavement or an internal “looped” street. (Figure 4)

3. City of Cary, North Carolina Zoning Code:

9.1.5 Computations


(A) Area Computation of Individual Signs


The area of a sign face (which is also the sign area of a wall sign or other sign with only one face) shall be computed by means of the smallest rectangle that will encompass the extreme limits of the writing, representation, emblem or other display, together with any material or color forming an integral part of the background of the display or used to differentiate the sign from the backdrop or structure against which it is placed, but not including any supporting framework, base, bracing or decorative fence or wall when such fence or wall otherwise meets the regulations of this chapter and is clearly incidental to the display itself. For a single wall on a single-occupant building, all pieces of information or other graphic representations on that wall shall be measured as though part of one (1) sign, encompassed within one (1) rectangle, which may not exceed ten (10) percent of the total wall area to which the sign is affixed. For a single wall on a multi-occupant building, the area of signs shall be computed using these principles, and each individual sign shall not exceed ten (10) percent of the total wall area to which the sign(s) is affixed.

Common Concerns Related to Adding Images

Two main concerns arise when dealing with images in ordinance text. First, it is important to note that images and graphics shouldn’t replace or conflict with carefully drafted text.

When incorporating maps and images into an ordinance, it is advisable to specify in a separate ordinance provision that the text takes precedent in the event of conflict. For example, “illustrations and ‘principles of interpretation’ included in the code shall be used in interpreting the relevant provisions, but where the text conflicts with an illustration or 'stated principle,' the text shall control.” (See City of Cary, North Carolina Code Appendix A, Chapter 9 § 1.4 (http://tinyurl.com/22w9y3l).

Secondly, cities who are eager to use images may encounter resistance from a surprising source – their codifiers. This past April, when I attended the Government Training Services Land Use lecture “So You Want to ReWrite Your Zoning Ordinance,” this was a concern voiced by both the presenters and audience members.  Some codifiers may be using software that doesn’t have the capacity to incorporate images. This can be an unfortunate surprise for a city, if this ocurs after it has drafted an ordinance or hired a codifier.

As a result, when hiring a codifier, cities should directly ask their vendor if they have the ability to incorporate images into codebooks. Even if the city isn’t interested in doing this now, it may wish to at some point in the future. In addition, it may be helpful to ask the codifier to provide samples of codebooks it has recently finished that incorporate images. Not all codifiers approach this task in the same way.  Cities may find that they have pointed preferences for how images should be include.  For example - should an image be directly in the text?  only available in an appendix?  linked electronically?

Conclusion

A simple picture can go a long way in making complex ordinance provisions understandable. Images simplify the regulatory process for all people involved – city staff, council and residents. Some cities are doing innovative things with images in their ordinances. I would particularly recommend reviewing the sign code provisions for the City of Cary, North Carolina, as an example of great innovation. Cary uses LMC’s codification partner, American Legal Publishing. The ordinance is available on the American Legal website at this link: http://tinyurl.com/22w9y3l.

Smoke Readers & Zoning Ordinances

Welcome to Our Series on Regulating Smoke


One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational activities or industrial activities. Whatever the source, smoke is a frequent topic of city regulation.

This article is the final segment in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on zoning ordinance standards regulating smoke and ambient air standards.

Smoke in Zoning Ordinances

Cities commonly regulate smoke as part of their zoning ordinance. Frequently, these rules are found in a “performance standards” section that regulates all types of nuisance conduct that may result from uses, such as noise and vibrations.

In reviewing these ordinances, I find that cities generally follow three methods of smoke regulation, including the Ringlemann chart, adoption of current Minnesota Pollution Control Agency (MPCA) standards and use of something called “State of Minnesota Pollution Control Standards, Minnesota Regulation APC 1 15.” For this blog entry we will discuss each method in detail.

Minnesota Pollution Control Standards:

Many cities simply adopt MPCA standards as their performance standards for zoning uses. Typical language is as follows:

SMOKE AND PARTICULATE MATTER. The ambient air quality standards of the Minnesota    Pollution Control Agency shall apply to the release of airborne materials.

Generally, MPCA standards are found in the Minnesota Rules ch. 7009 (available at this link: https://www.revisor.mn.gov/rules/?id=7009). The MPCA standards appear to be based on federal standards. According to the MPCA, cities may adopt more stringent local standards for smoke.

The Ringlemann Chart:

Ringlemann was a French scientist born in 1861. His practice of measuring smoke by using cards of various colors from white to black is still used today. More his smoke chart can be found on the CDC website at: http://www.cdc.gov/niosh/mining/pubs/pubreference/outputid330.htm.

Ordinance provisions using the Ringlemann chart typically look like this:

Smoke: Measurement of smoke shall be at the point of emission. The Ringlemann Smoke Chart published by the United States Bureau of Mines shall be used for the measurement of smoke. The following table indicates for the various zoning districts the acceptable level of smoke emissions. These provisions, applicable to visible gray smoke, shall also apply to visible smoke of a different color but with an equivalent apparent opacity.
Zoning District Maximum Level of Emission Exception
R-1, R-1x, R-2, R-3, R-4, and Developing Residential Areas Ringlemann No. 0 None
B-1, B-4, CDC, M-3, MRD Ringlemann No. 1 Smoke of a Shade Equal to No. 2 on the Chart may be Emitted for a Total of Eight Minutes during any one hour period.

Cities using the Ringlemann chart are using a legal and legitimate standard for measuring smoke. However, cities using the chart may run into practical difficulties related to enforcement should they have a true smoke problem use on their hands.

The problem with the Ringlemann chart is that it is speaking a different language from the current MPCA standards. Smoke at Ringlemann No. 1 does not automatically equate to a similar smoke measurement under MPCA standards. As a result, it may be difficult for a city to understand (without expensive professional evaluation) how their standards relate to mandatory state standards.

In addition, cities needing to take a Ringlemann measurement may have difficulty finding a suitable “expert” trained in measuring smoke this way. Smoke measurements these days are typically obtained by certified “smoke readers.” Smoke readers are generally trained to measure smoke using MPCA and federal measurement standards. This is because most smoke reading programs are designed to help people become “in-house” smoke readers for private industries that may be facing federal penalties for emissions violations.

Minnesota Regulation APC 1-15

A substantial number of cities also have this language adopting Minnesota Regulation APC 1-15 as their standard for smoke regulation:

The emission of smoke by any use shall be in compliance with and regulated by the State of Minnesota Pollution Control Standards, Minnesota Regulation APC 1-15, as amended.

This language is potentially problematic because it is outdated. These standards have not been current since the mid-80’s and have been superseded by the current Minnesota Rules. If faced with an enforcement issue, the city may have difficulty obtaining a copy of these standards and reading them in concordance with current standards. In addition, certified smoke readers might not be familiar with these standards.

Conclusion

This concludes our 4-part series on smoke regulation. Far from being an ephemeral topic – smoke is a frequent and lasting concern to Minnesota cities. Ordinances on smoke touch many areas of resident lives – from business endeavors to private recreational uses. Recent changes in technology – related to both methods of heating (such as the new popularity of outdoor wood boilers) and methods of measuring smoke may prompt cities to review their ordinances. In addition, recent law changes related to tobacco products regulation may require ordinance redrafting.

Regulating Smoke Part 3: Smoking & Tobacco Products

Welcome to Our Series on Regulating Smoke

One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational activities or industrial activities. Whatever the source, smoke is a frequent topic of city regulation. This article is the 3rd in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on indoor air quality and the regulation of tobacco products.

Indoor Air Quality and Smoking

Indoor air quality issues related to smoke from tobacco products used to be a heated concern. Now this issue is primarily regulated by state law. Local regulation of this issue was largely pre-empted through the “Freedom to Breathe Act” (FBA) of 2007.  The FBA essentially prohibits smoking in all indoor public places and places of employment. The details of this law are summarized on the MN Department of Health website at: http://www.health.state.mn.us/divs/eh/indoorair/mciaa/ftb/docs/f2bgeneral.pdf.

Cities may still regulate issues related to smoking by:

• Adopting more stringent measures than state statute (such as prohibitions on smoking in city parks, bus shelters and near air intakes of buildings); and
• Regulating sellers of tobacco products.

The City of Rochester, Minnesota has adopted an ordinance related to smoking that is stricter than the state statute. See Chapter 85 General Regulations, Section 85.26 at: http://www.rochestermn.gov/departments/attorney/ordinances/pdf/ORD85.pdf. Cities generally regulate sellers of tobacco products by licensing them through local ordinance.  The focus of these local ordinances is usually on limiting youth access.

Licensing Tobacco Sellers

Cities are not required to license tobacco sellers. In contrast, the county must license all retailers that sell tobacco products, unless a city adopts its own tobacco ordinance. A city adopting a tobacco ordinance must give general notice of the intent to adopt or amend a tobacco ordinance, and must give retailers a 30-day written notice of the time, place, and subject matter of the meeting where the proposed ordinance or amendments are to be considered.

A tobacco ordinance must contain at least the following provisions:

• The ordinance must establish an administrative hearing system where an alleged violator has the right to be heard before a designated hearing officer or panel (which could be the city council) and where a fine, instead of a criminal penalty, could be imposed for violating the ordinance. State law establishes a schedule of minimum fines;
• The ordinance must provide for at least one, unannounced compliance check each year; and 
• The ordinance must prohibit self-service (vending machines) sales of individual cigarette packages, except in establishments that prohibit minors, and in establishments that derive at least 90 percent of their revenue from the sale of tobacco.

The ordinance may establish a licensing fee sufficient to cover the costs of enforcing the above provisions.

Tobacco Modernization and Compliance Act of 2010

Cities who license tobacco sellers should be aware of the Tobacco Modernization and Compliance Act of 2010 (TMCA). The TMCA is effective August 1, 2010. The main feature of the TMCA is to expand the definition of what is regulated as tobacco in the state of Minnesota. “Tobacco products” were formally defined at Minn. Stat. §297F.01, Subd 19 as:

“cigars; little cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine-cut and other chewing tobacco; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco, and other kinds and forms of tobacco.”

The definition is now expanded to also include:

“any products containing, made, or derived from tobacco that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, or any component, part, or accessory of a tobacco product.”

This expanded definition encompasses new products on the market, such as tobacco laced mints and “e-cigarettes.” The e-cigarettes are typically a plastic container (that looks like a cigarette and may even have a red-lighted end) that delivers nicotine through a mist. The e-cigarettes are smokeless. The new law also criminalizes sale of these tobacco related products to minors.

Cities may now regulate these new forms of tobacco the exact same way they have always regulated traditional cigarettes, cigars, snuff and chew via a local licensing ordinance. Cities should review their licensing ordinance in light of the TMCA. Cities may need to amend their ordinance’s terms and definitions section to mirror the new expanded definitions.

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