Interview with Duke Addicks , LMC Codification Manager
What is the latest news for LMC Codification?
The MN Basic Code for our smaller cities has been updated to be current with all legislative and court changes through March of 2010. This is the first update in five years, so we’re very excited.
What is the MN Basic Code (MBC)?
The MBC is a subscription service that provides a complete code of ordinances for small cities. There is no need for smaller cities to reinvent the wheel when in comes to their local ordinances. We’ve done all the work and really put our best thinking into these ordinances. All the city needs to do is sign up, pay the subscription fee and adopt a local ordinance putting the code into effect. Once they become an MBC city we’ll send out updates as the law and caselaw changes.
What is the ideal size for an MBC city?
The MBC is designed for cities under 1000 in population. We have cities as small as 50.
Why was the 2010 update to the MBC necessary?
Because the law changes. There are new state and federal court cases decided each year. When things change, city ordinances must change too—or create unwanted liability for cities.
How can a city subscribe to the MBC?
The first step is to contact our publisher and codification consultant Ray Bollhauer at 1-800-445-5588 or rbollhauer@amlegal.com.
Thursday, May 27, 2010
Tuesday, May 11, 2010
Recent Case Law Developments: Vague Ordinances
by Rachel Carlson
Good fences make good neighbors.
-Robert Frost
A recent unpublished MN Court of Appeals case State v. Enright (No. A09-795)(March 30, 2010) serves as a reminder of the court’s long-standing dislike of vague ordinances.
The City ordinance in Enright required a fence to be built to separate industrial from residential land. However, according to the case’s appellant, the ordinance failed to direct in clear terms who exactly was responsible for building and maintaining the fence – the residential owner or the industrial owner. Ultimately, the MN Court of Appeals sided with the city – stating that the totality of the ordinance made it clear which landowner needed to construct the fence.
Courts dislike vague ordinances for constitutional reasons. The US Constitution’s Fourteenth Amendment requires due process of law before a person is deprived of life, liberty or property. Underlying this is a fundamental notion of fairness – a person should be given a fair chance to understand the law, before they face a penalty as a result of breaching it.
Avoiding vague language in ordinance drafting can be a tricky proposition – the language used must be specific enough to give fair warning of the conduct prohibited, but general enough to cover various and different fact situations. Even the most careful word choice can still create problems. Words by their nature can have many different and entirely subjective meanings – they fail to approach the precision of math. (As the US Supreme Court itself noted in Grayned v. City of Rockford, 408 U.S. 104, (1972))
Thankfully the court does not expect perfection from ordinance drafters. Instead an ordinance that imposes criminal penalties (such as the misdemeanor fine in Enright) must meet two standards:
1) It must provide specific notice of conduct prohibited by the ordinance; and
2) It must not be so vaguely drafted as to authorize or encourage arbitrary and discriminatory enforcement.
The first prong is fairly well known among ordinance drafters. The notice of prohibited conduct must be clear enough to be understood by “persons of common intelligence,” or “ordinary people.” Plain language is therefore preferred. If words are susceptible to more than one meaning, an added definition may be needed. Some ordinance drafters will even add a visual image, where appropriate, to eliminate confusion. The goal in meeting the first prong is to remove any guess work in understanding the ordinance.
The second prong is less discussed. How does one draft an ordinance to avoid arbitrary or discriminatory enforcement? The Minnesota case of State v. Newstrom, 371 N.W.2d 525 (Minn.,1985) noted that this prong is met when:
“the statute [or ordinance] affords . . . guidance to enforcement officials limiting their discretion in determining whether certain conduct is allowed or prohibited.”
An ordinance should not “imply a judgment without indicating who is to make the judgment or what criteria are to be used.” (Newstrom). Restraints must appear on the face of the ordinance and not be implied.
The case of State v. Reha, 483 N.W.2d 688 (Minn.,1992) also helps shed some light on this second prong. In Reha, the court notes that unless the ordinance implies a First Amendment right, the court will only review “actual” conduct of city officers in enforcing an ordinance. The danger of “speculative” enforcement conduct under the ordinance will not render the ordinance void for vagueness under the second prong. As a result, when the city was able to demonstrate that all normal practices were followed in enforcing the ordinance, the city’s actions were upheld.
Conclusion: Practitioner’s Tip
A vagueness challenge to an ordinance can occur with any type of ordinance. Traditionally, however, ordinances regulating barking dogs and noise, property maintenance and zoning are frequently challenged on this basis. It may be worthwhile to review these ordinances in light of Enright and its related cases.
Good fences make good neighbors.
-Robert Frost
A recent unpublished MN Court of Appeals case State v. Enright (No. A09-795)(March 30, 2010) serves as a reminder of the court’s long-standing dislike of vague ordinances.
The City ordinance in Enright required a fence to be built to separate industrial from residential land. However, according to the case’s appellant, the ordinance failed to direct in clear terms who exactly was responsible for building and maintaining the fence – the residential owner or the industrial owner. Ultimately, the MN Court of Appeals sided with the city – stating that the totality of the ordinance made it clear which landowner needed to construct the fence.
Courts dislike vague ordinances for constitutional reasons. The US Constitution’s Fourteenth Amendment requires due process of law before a person is deprived of life, liberty or property. Underlying this is a fundamental notion of fairness – a person should be given a fair chance to understand the law, before they face a penalty as a result of breaching it.
Avoiding vague language in ordinance drafting can be a tricky proposition – the language used must be specific enough to give fair warning of the conduct prohibited, but general enough to cover various and different fact situations. Even the most careful word choice can still create problems. Words by their nature can have many different and entirely subjective meanings – they fail to approach the precision of math. (As the US Supreme Court itself noted in Grayned v. City of Rockford, 408 U.S. 104, (1972))
Thankfully the court does not expect perfection from ordinance drafters. Instead an ordinance that imposes criminal penalties (such as the misdemeanor fine in Enright) must meet two standards:
1) It must provide specific notice of conduct prohibited by the ordinance; and
2) It must not be so vaguely drafted as to authorize or encourage arbitrary and discriminatory enforcement.
The first prong is fairly well known among ordinance drafters. The notice of prohibited conduct must be clear enough to be understood by “persons of common intelligence,” or “ordinary people.” Plain language is therefore preferred. If words are susceptible to more than one meaning, an added definition may be needed. Some ordinance drafters will even add a visual image, where appropriate, to eliminate confusion. The goal in meeting the first prong is to remove any guess work in understanding the ordinance.
The second prong is less discussed. How does one draft an ordinance to avoid arbitrary or discriminatory enforcement? The Minnesota case of State v. Newstrom, 371 N.W.2d 525 (Minn.,1985) noted that this prong is met when:
“the statute [or ordinance] affords . . . guidance to enforcement officials limiting their discretion in determining whether certain conduct is allowed or prohibited.”
An ordinance should not “imply a judgment without indicating who is to make the judgment or what criteria are to be used.” (Newstrom). Restraints must appear on the face of the ordinance and not be implied.
The case of State v. Reha, 483 N.W.2d 688 (Minn.,1992) also helps shed some light on this second prong. In Reha, the court notes that unless the ordinance implies a First Amendment right, the court will only review “actual” conduct of city officers in enforcing an ordinance. The danger of “speculative” enforcement conduct under the ordinance will not render the ordinance void for vagueness under the second prong. As a result, when the city was able to demonstrate that all normal practices were followed in enforcing the ordinance, the city’s actions were upheld.
Conclusion: Practitioner’s Tip
A vagueness challenge to an ordinance can occur with any type of ordinance. Traditionally, however, ordinances regulating barking dogs and noise, property maintenance and zoning are frequently challenged on this basis. It may be worthwhile to review these ordinances in light of Enright and its related cases.
Friday, May 7, 2010
Welcome to the Brand New LMC Codification Blog!
By Rachel Carlson, LMC Staff Attorney
Codification may not be the most fascinating specialization in the legal field – most family gatherings and parties make me poignantly aware of this fact. I usually manage only a few sentences about an “interesting” issue with my work, before someone turns to my volunteer firefighter husband and asks him to please recount his most recent life saving adventure.
It’s hard for city ordinances to compete with cliff-side rescues in terms of real world excitement, but I admit I’m hooked. I have a secret treasure trove on my computer of ordinances that I simply like and I have spent hours collecting examples of thrillingly terrific definitions for city codes. I’m hooked for reasons that surprisingly dovetail with my husband’s search and rescue operations.
When I was a very young attorney, my first boss in the legal field asked me to draft a new zoning district for him that would encompass headquarters for research and development type operations. He gave me the current city zoning code as a model. I soon noticed that there was one oddly common feature between the many diverse districts – from R-1, to Ag, to Limited Industrial. My boss, the long-time city attorney, had prohibited buildings over three stories in height in every single district. Well this was curious! I admit my client was a smaller city, and the chance of a high-rise development going in tomorrow was next to zero. But still – why this seemingly irrational dislike for tall buildings. Ten stories may look out of place, but why not four or even five?
Into his office I wandered, holding the code book in my hand and a polite, puzzled frown on my face. I still remember his office vividly, from the books on the shelf to the desk that featured two teetering towers of papers at each of his elbows. As I asked him my question, he leaned across his desk and the papers wobbled dangerously. “The fire truck,” he answered. I frowned with a little more polite puzzlement. The papers wobbled some more. “The fire truck ladder only reaches up three stories,” he explained patiently, already turning back to his work. “And the next truck that reaches higher is 45 minutes away. If we let someone build a building over three stories in town, it will put residents and our fire department volunteers in danger.”
Oh. The fire trucks. I had never before made the connection between building height and resident safety. Or between drafting a simple ordinance well and preserving the public welfare – words city attorneys may throw around a lot, but not really think about in concrete terms. I’ve never forgotten that brief encounter that hammered home for me the real connections between city ordinances and creating a safe and liveable community. And so I’m hooked on this rather odd specialization of codification.
This blog is intended to share some of the things I’ve learned and some of the things I’m still thinking about related to city codes and ordinances. I hope you find some useful things here as we progress together.
Codification may not be the most fascinating specialization in the legal field – most family gatherings and parties make me poignantly aware of this fact. I usually manage only a few sentences about an “interesting” issue with my work, before someone turns to my volunteer firefighter husband and asks him to please recount his most recent life saving adventure.
It’s hard for city ordinances to compete with cliff-side rescues in terms of real world excitement, but I admit I’m hooked. I have a secret treasure trove on my computer of ordinances that I simply like and I have spent hours collecting examples of thrillingly terrific definitions for city codes. I’m hooked for reasons that surprisingly dovetail with my husband’s search and rescue operations.
When I was a very young attorney, my first boss in the legal field asked me to draft a new zoning district for him that would encompass headquarters for research and development type operations. He gave me the current city zoning code as a model. I soon noticed that there was one oddly common feature between the many diverse districts – from R-1, to Ag, to Limited Industrial. My boss, the long-time city attorney, had prohibited buildings over three stories in height in every single district. Well this was curious! I admit my client was a smaller city, and the chance of a high-rise development going in tomorrow was next to zero. But still – why this seemingly irrational dislike for tall buildings. Ten stories may look out of place, but why not four or even five?
Into his office I wandered, holding the code book in my hand and a polite, puzzled frown on my face. I still remember his office vividly, from the books on the shelf to the desk that featured two teetering towers of papers at each of his elbows. As I asked him my question, he leaned across his desk and the papers wobbled dangerously. “The fire truck,” he answered. I frowned with a little more polite puzzlement. The papers wobbled some more. “The fire truck ladder only reaches up three stories,” he explained patiently, already turning back to his work. “And the next truck that reaches higher is 45 minutes away. If we let someone build a building over three stories in town, it will put residents and our fire department volunteers in danger.”
Oh. The fire trucks. I had never before made the connection between building height and resident safety. Or between drafting a simple ordinance well and preserving the public welfare – words city attorneys may throw around a lot, but not really think about in concrete terms. I’ve never forgotten that brief encounter that hammered home for me the real connections between city ordinances and creating a safe and liveable community. And so I’m hooked on this rather odd specialization of codification.
This blog is intended to share some of the things I’ve learned and some of the things I’m still thinking about related to city codes and ordinances. I hope you find some useful things here as we progress together.
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