LMC Codification Service

Cheers to the Mankato Moondogs and Duluth Huskies!

2011-07-22T13:52:00.000-07:00

Update your city code! A plethora of new liquor licenses have sprouted this summer, in spite of the state shutdown.

Cities may now issue an on-sale wine license and an on-sale malt liquor license to a person who owns a summer collegiate league baseball team, or to a person holding a concessions or management contract with the owner. This license allows beverage sales at a ballpark or stadium located within the city during baseball games—notwithstanding any law, local ordinance, or charter provision. Effective date was April 20, 2011. Go Mankato Moondogs, Duluth Huskies, Willmar Stingers, Rochester Honkers, Alexandria Aces!

What other new liquor licenses did the 2011 legislature approve? Lots! As of May 25 of this year, cities have authority under state law to issue all of the following new liquor licenses:

The “Surly bill” authorizes brewer taproom license. A city may now issue one on-sale malt liquor brewer taproom license to the holder of a brewer’s license. This license authorizes sale of malt liquor produced by the brewer for consumption on the premises of, or adjacent to, one brewery location owned by the brewer. Only small brewers (brewing no more than 250,000 barrels of malt liquor annually, or producing no more than 250,000 gallons of wine annually) may receive a brewer taproom license. The license fee, imposed by the city, must cover but generally not exceed the costs of issuing the license, inspecting the premises, and other directly related costs of enforcement. The city must provide the licensee’s name and information to the commissioner of Public Safety within 10 days of issuing the license.

Speedway liquor licenses: Cities may now issue on-sale liquor licenses to auto racing facilities located in the city. The license authorizes sales both to persons attending any and all events at the facility, and sales in a restaurant, bar, or banquet facility located on the premises of the auto racing facility on all days of the week. The license may be issued for a space that is not compact and contiguous, but the licensed premises may include only the space within a defined area as described in the application for the license.

Wine festival license: A city may issue a temporary license to “a bona fide association of owners and operators” of wineries sponsoring an annual festival to showcase wines produced by members of the association. This is an on-sale license authorizing the sale of table, sparkling, or fortified wines produced by the wineries by the glass. However, no more than two glasses per customer may be sold. Dispensing free samples of the wines offered for sale is allowed within designated premises of the festival. The wine festival license is subject to all laws and ordinances governing the sale, possession, and consumption of table, sparkling, or fortified wines. A “bona fide association of owners and operators of wineries” is defined as an association of more than 10 wineries that has been in existence for more than two years at the time of application for the temporary wine festival license.

Temporary farm winery license at county fairs: A city may now issue and charge a fee to a farm winery for a temporary on-sale license for sale of the farm winery’s beverages at a county fair in the city. The farm winery must already have a state issued on- and off-sale farm winery license. The license is subject to all laws and ordinances governing the sale of intoxicating liquor. To be valid, a temporary on-sale farm winery license must first be approved by the commissioner of Public Safety.

Private, nonprofit college liquor license: Notwithstanding any other law, local ordinance, or charter provision, a city may issue an on-sale intoxicating liquor license to a private, nonprofit college located in the city. Alternatively, the city may issue it to any entity holding a caterer’s permit and a contract with the private, nonprofit college for catering on the premises of the private, nonprofit college, or for any portion of the premises as described in the approved license application. The license may be issued for space that is not compact and contiguous, provided that all such space is included in the description of the licensed premises on the approved license application. The license authorizes sales on all days of the week to persons attending events at the private, nonprofit college.

Remember, as a previous excellent blogger noted, the state Liquor Act favors city ordinance regulation of liquor sales. 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, cities may craft a local ordinance regulating the sale of liquor in the city and many related issues - but keeping your code updated allows a city to issue all of these new licenses if the council decides to do so.

Water Conservation Rate Structures in Ordinance

2011-03-14T12:24:00.000-07:00

What’s all this buzz about a conservation rate structure and city water? The idea is, the more water you use, the more you pay. A state law tries to make conserving water pay -- and using water cost you more.[i] The law currently requires public water suppliers in the metro area, serving more than 1,000 people, to include a “conservation rate structure” in city ordinances dealing with water rates.

So how does a conservation rate structure work? It’s up to the city water system. Conservation is the key but cities can use a variety of approaches to achieve it.

So what goes into water rates to begin with? To make this a little more fun, think of buying a Twins baseball ticket. Some of your money goes for maintenance and operation of the stadium, a bit of the price of each ticket goes to a sales tax to pay for the stadium itself – and then you pay extra for the best seat in the house.

In the same way, city water rates use volume charges to cover operation and maintenance of the system and a base rate to cover infrastructure costs.[1] After that, a city may use block rates (like that Twins ticket in that primo section behind home plate) where higher water usage puts you into a higher cost bracket for all the water you use. Just as Twins tickets may run a little higher because fans are paying for that new stadium, city water rates vary if a new water plant is being planned or built or paid off.

What are some ways to set a conservation rate? Cities may use a seasonal rate to encourage conservation in the summer when usage skyrockets due to lawn watering. Seasonal rates might include a surcharge or an added fee to discourage constant watering. And, those fees or surcharges might disappear in the winter.

Cities must also consider the number of residential units in an apartment building. Water usage to an apartment building is divided by the number of residential units. If the average amount of water used by each apartment is higher than a residential home, those users, or that building, will pay more too.

Why was this law passed, how is it enforced and when does it take effect? The law seeks to eliminate the practice of charging less the more water you use, which of course, encourages consumption not conservation. Currently, a metro city water system serving more than 1,000 people must have a conservation rate structure in place before it requests approval from the state Department of Health to construct a new public water supply well or requests an increase in the authorized volume of water appropriation. The need to have a conservation rate structure kicks in for all remaining city water systems (including greater Minnesota) serving more than 1,000 people on Jan. 1, 2013.

[1] DNR Conservation Rate Structures.

[i] Minn. Stat. § 103G.291.

Hot topic: Can cities regulate private wells?

2011-02-14T13:01:00.000-08:00

Let’s talk about wells and city water. Does your city provide water to the community? What if one of the bigger businesses in your city decides to drill their own well, not to use for drinking water (bringing up that word I can never remember how to pronounce – potable, meaning drinkable) but to wash cars or clean equipment? What if, to save money, all the townhouse associations in your city want to drill their own private wells and have the greenest grass on the street?

What can cities do about it? Since 1949 cities have had authority to regulate “the use of wells, cisterns, reservoirs, waterworks, and other means of water supply” in city boundaries. Minn. Stat. 412.221, subd. 11. This authority includes the power to prohibit private wells in a city.

Zoning law provides yet more authority for cities to prohibit private wells or to prescribe areas of the city where private wells may be located on a parcel of property. Minn. Stat. § 462.357, subd. 1. City zoning authority is broad and certainly contemplates regulation of structures including private wells.

Is this news? Yes. In the past few years, cities were receiving letters and calls from the Minnesota Department of Health (MDH) questioning city authority to prohibit or regulate private wells used for irrigation or anything other than drinking water. The confusion stems from laws passed in 1989 that give MDH the authority to regulate the construction, repair and sealing of wells. Minn. Stat. § 103I.111. This ’89 law surely preempts city regulation of these activities – but it does not impinge on a city’s ability to prohibit or regulate well drilling in city boundaries. Lawyers love to split hairs but here we say yes to both city and state regulation. In short, MDH only says HOW to install a well assuming there can be one, and whether there can be one or where a well might be allowed in a city is a city matter.

Why does this matter? Minnesota has more freshwater than any of the other contiguous 48 states.[1] But the supply is not endless. City water systems must protect groundwater supplies and conserve water resources. If all or even a few of the businesses or townhouse associations in your city drill their own wells and use many gallons of water it will quickly cause problems for city water systems.

So what should cities do to protect local water supplies and infrastructure? To protect your city water supply and system, pass an ordinance that deals with private wells. Work with your city attorney to include wells used for irrigation, sprinkling or other uses, not just regulating wells for drinking water. The statutes and case law make it clear that cities have authority to regulate the use of wells to the extent of prohibiting them, and requiring the property owner connect to the city's water system in the interest of health safety and welfare. But remember, the limited tasks of constructing, repairing, and sealing the well are subject to MDH regulatory authority.

[1] Minnesota Water Sustainability Framework, University of Mn, 2009.

Who will board the windows and doors?

2011-01-31T09:01:00.000-08:00

Over on Maple Lane there is a house that no one lives in. Maybe it has been foreclosed? Maybe it is a rental that no one wants to rent? It could be any number of things. But one thing that is certain is that when the people left, they did not secure the house. The front door is open. The windows are uncovered and some have been broken. I have seen kids coming and going doing who knows what inside. A couple of times at night I thought I saw lights like someone was staying in there. Once I thought I even saw someone taking a large bundle of something from the house. Apparently the owners are not going to secure the building, so who will?

One option may be for the city to step in and see to it that the building is secured. Minnesota Statute § 463.251 provides a process by which a city can secure a building that is considered hazardous because it is open to trespass and has not been secured. The statute spells out the process to follow and an ordinance is not required to use this process. (See the Dangerous Properties memo for more information.) However, an ordinances is required if the city wants to be able to secure buildings when it presents an immediate danger to the health and safety of persons in the community (e.g. “emergency securing”).

Oftentimes when a city adopts an ordinance that allows for emergency securing of buildings, the ordinance also duplicates the language in state law. It is helpful to spell out who can determine that an emergency exists and the process that will be followed. Here is what the League’s Sample Ordinance Regarding Securing of Vacant Buildings says:

SECTION 4. EMERGENCY SECURING OF VACANT BUILDINGS

Pursuant to Minn. Stat. § 463.251, subd. 4, when the city building official, police chief, or fire chief determines that an emergency exists with respect to the health or safety of persons in the community and immediate boarding and securing of a building is required, and where immediate danger will exist to children, transients, or others members of the community without the immediate boarding or securing of the building, the building official, police chief, or fire chief may waive all notice requirements herein and immediately board or otherwise secure the building, provided that:

(1) The conditions showing the existence of an emergency are documented in writing by the building official, police chief, fire chief, or their designees.

(2) Notice is mailed immediately by the department invoking this Section to the owner of record of the premises, the taxpayer identified in the property tax records for the parcel, the holder of the mortgage or sheriff’s certificate, and any neighborhood association for the neighborhood in which the building is located that has requested notice.

The model ordinance includes the statutory definitions of “neighborhood association” and “secure,” as well as additional definitions for “unoccupied building,” “unsecured building,” and “vacant building.” These additional definitions are intended to help the city determine when a building is unoccupied, unsecured, or vacant. Having a set definition helps to minimize arbitrary or inconsistent application.

If you already have an ordinance on the books, it is a good idea to review it if you haven’t done so in the last year or so. There were some sizable changes made in 2009 and you want to make sure that your ordinance includes these changes so that it is consistent with state law.

In 2009, Minnesota Statute § 463.251, subd. 2 was amended to include specific information that must be included in the notice that is served on the owner and other specified people. The required written notice must include a statement that:

(1) Informs the owner and the holder of any mortgage or sheriff’s certificate of the requirements that the owner or holder of the certificate has six days to comply with the order or provide the council with a reasonable plan and schedule to comply with the order and that costs may be assessed against the property if the person does not secure the building.

(2) informs the owner and the holder of any mortgage or sheriff's certificate that, within 14 days of the order being served, the person may request a hearing before the governing body challenging the governing body's determination that the property is vacant or unoccupied and hazardous; and

(3) notifies the holder of any sheriff's certificate of the holder's duty under Minnesota Statute § 582.031, subd. 1(b) , to enter the premises to protect it from waste and trespass if the order is not challenged or set aside and there is prima facie evidence of abandonment of the property as described in Minnesota Statute § 582.032, subd. 7.

A couple of other minor changes were made:

· The holder of the sheriff’s certificate of sale has the right to comply with the order or give the council a plan and schedule to comply with the order.

· The right to request a hearing on the order was also added.

· The time line to comply, offer a plan, or request a hearing went from six to fourteen days. In 2010, the legislature went back and changed the time line again, this time from fourteen back to six days.

The League’s sample ordinance includes the law changes from both 2009 and 2010. For more information, please check out the League’s memo “Dangerous Properties.” The subject will also be covered in a session about foreclosed properties in the League's spring Safety and Loss Control Workshops.

Regulating firearms in the city

2011-01-12T11:49:00.001-08:00

In light of the recent horrific shooting spree in Arizona, some cities might be wondering how they can tighten up city ordinances on the regulation of firearms. Unfortunately, there is not a whole lot a city can do by ordinance to prevent firearms in public buildings.

State law extensively regulates firearms. (See Chapter 624; see also Chapters 97A and 97B on hunting). This means cities are very limited in how they may regulate firearms. In fact, state law explicitly preempts cities from regulating firearms, ammunition, or their respective component. (Minn. Stat. § 471.633) There are only two exceptions to the preemption. First, a city may regulate the discharge of firearms. Second, the city may adopt regulations identical to state law. If the city does decide to adopt an ordinance that is outside the scope of these two exceptions, the inconsistent provisions are considered void.

In adopting an ordinance that regulates the discharge of firearms, cities may take different approaches. One example of this type of ordinances comes from the Minnesota Basic Code:

Section 130.02 DISCHARGING FIREARMS.

(A) Shooting upon, over or near a cemetery. Except as provided by M.S. § 97A.137, for wildlife management areas that are 40 acres or greater, no person shall, without permission from the proper officials, discharge a firearm upon or over a cemetery or within 100 yards thereof, unless the person is upon his or her own land.

(B) Hunting near a city park. Except as provided by M.S. § 97A.137, for wildlife management areas that are 40 acres or greater, no person shall hunt, shoot, or kill game within 2 mile of a city park unless the City Council has granted permission to kill game not desired within the limits prohibited by this division.

(C) Discharge of firearms prohibited in certain places. No person shall discharge a firearm on a lawn, park, playground, orchard, or other ground appurtenant to a school, church, or an inhabited dwelling, the property of another, or a charitable institution. This section does not prevent or prohibit the owner thereof from discharging firearms upon his or her own land.

(D) Discharging firearms on highways prohibited. No person shall discharge a firearm upon or over a public road or highway.

(E) Exceptions. This section shall not prohibit the firing of a military salute or the firing of weapons by persons of the nation's armed forces acting under military authority, and shall not apply to law enforcement officials in the proper enforcement of the law, or to any person in the proper exercise of the right of self defense, or to any person otherwise lawfully permitted by proper federal, state or local authorities to discharge a firearm in a manner contrary to the provisions of this section.

If the city does adopt an ordinance regulating firearms, the city may prosecute violators of the ordinance. However, the maximum penalty could only be a misdemeanor because a city has no power to provide for ordinance violation penalties greater than a misdemeanor. (Minn. Stat. § 412.231) On the other hand, if a person is prosecuted for a violation of state law (instead of city ordinance), the penalty could potentially be a gross misdemeanor or felony.

Generally, state law prohibits carrying firearms unless there is statutory authority. One such authorization is the state’s “conceal and carry” law that allows people with the proper permit to carry firearms in public places. (Minn. Stat. § 624.714) Cities sometimes want to prevent people from bringing firearms into city buildings even if they have the proper permit. There is no authority for a city to pass an ordinance or take other actions that could prohibit people with proper permits from bringing firearms into city hall. As I read the conceal and carry statute, only private establishments can ban firearms on their premises. A “private establishment” is defined as “a building, structure, or portion thereof that is owned, leased, controlled, or operated by a nongovernmental entity for a nongovernmental purpose.” Since this definition does not include cities or governmental entities, it does not seem to authorize the city to ban firearms at city hall or other public property. (There is a limited exception to this rule is if city hall is attached or part of a court house.)

In addition to the conceal and carry law, there are other provisions that allow a person to have a firearm in a public place. Two examples come to mind. Minn. Stat. § 624.7181 gives a list of situations that are not considered “carrying” and are therefore acceptable. Some examples include carrying a rifle to a firearm repair shop or to a lawful shooting range. Another example is found in Minn. Stat. § 97B.045, which provides limitations (and exceptions to those limitations) for transporting a firearm. In 2009, this law was amended to allow a person under certain situations to transport an unloaded, uncased firearm in a motor vehicle traveling to or from a site where the person intends to hunt (or has hunted) lawfully that day.

Conclusion. Because of state law preemption issues, cities are limited in their ability to regulate firearms by city ordinance. However, cities can rely on state law and, in addition, may be able to take other safety and security measures that may help to minimize concerns over firearms in public buildings.

New Year, New Resources

2011-01-03T09:15:00.000-08:00

I wanted to take a minute to wish all of the readers a very happy 2011! I hope that your new year is off to a great start. As we start a new year, I wanted to mention a couple of new items that might be helpful.

The Tobacco Modernization and Compliance Act of 2010 took effect on August 1, 2010. The Act expands the definition of what is regulated as tobacco in this state to include things like e-cigarettes, mints laced with tobacco, etc. (See the July 30 blog entry for more details.) In light of the changes to the tobacco law, the League collaborated with William Mitchell’s Public Health Law Center to create a model tobacco ordinance. The model ordinance covers regulations on the sale, consumption and possession of tobacco and tobacco related products. The ordinance is available on the League’s website by clicking here.

I did a couple of postings last year about animal regulation issues that mentioned the new League memo “Animal Regulation in Cities.” The memo has been completed and is available on the League’s website or by clicking here. (If you would prefer a paper copy, please call the League and we will mail on to you.) The memo covers many aspects of animal regulation, such as rights and responsibilities, as well as many different types of animals, including dogs, cats, and exotic animals. This memo has been one of my pet projects (pun intended) and I am pleased with the final product. I hope that you find it helpful.

Also, the League's Handbook for Minnesota Cities has been completely updated to include all of the 2010 legislative changes, as well as relevant court opinions, rules, etc. You can view the Handbook online here. The Handbook is a great resource for many city related issues.

As we all gear up for the many issues that will surely face us in 2011, please feel free to contact me with questions or subjects you think would make for a good posting.

MSBA Top 25 Blawg for 2010

2010-12-16T09:48:00.000-08:00

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!

2010-12-09T09:07:00.000-08:00

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

2010-12-03T11:21:00.000-08:00

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

2010-11-16T13:22:00.000-08:00

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!

Clipart provided by: http://www.pdclipart.org/displayimage.php?album=23&pos=197

Drafting Licensing Ordinances Part II

2010-11-10T11:09:00.000-08:00

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

2010-11-02T10:56:00.000-07:00

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

2010-10-26T11:11:00.000-07:00

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

2010-10-18T08:46:00.000-07:00

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!

2010-10-11T08:54:00.000-07:00

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

2010-10-01T13:50:00.000-07:00

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

2010-09-23T09:54:00.000-07:00

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

2010-09-13T11:53:00.000-07:00

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

2010-09-07T13:37:00.000-07:00

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)?

2010-09-02T11:41:00.000-07:00

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?

2010-08-26T13:30:00.000-07:00

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

2010-08-19T12:45:00.000-07:00

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

2010-08-11T10:18:00.000-07:00

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

2010-07-30T08:35:00.000-07:00

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.

Picture provided by http://tinyurl.com/295v6nu

Neighborhood Conflict and Cities

2010-07-28T09:12:00.001-07:00

Minnesota Public Radio featured today a podcast on neighborhood conflict that may be of interest to city attorneys, staff and officials - who often find themselves in the middle of such conflicts.

The podcast notes that neighborhood conflicts can be draining to city resources, by generating frequent police service calls and demanding city staff attention (building inspection services, zoning services, attorney services, etc). A few callers into the show noted success they had in contacting their city for assistance (for example the St. Paul problem properties unit).

It is important to note that many of the conflicts discussed seem to erupt over issues commonly regulated by city ordinance - for example encroaching fences, barking dogs, curfew issues, etc. This is often how the city gets drawn into the conflict. I found it interesting, however, that none of the conflict experts featured in the podcast saw city involvement as solution to the conflict. It was considered more a symptom of a deeper underlying problem.

City staff and officials may be interested in hearing the expert suggestions for conflict resolution resources for neighbors - potentially available though non-profits at low cost. These may be resources that the city can direct residents to when neighbors appear at city hall with grievances. These resources could supplement traditional city code enforcement efforts. While potentially non-traditional, utilizing these resources may equally benefit cities and residents by reducing conflict and the need for city enforcement services.

Here is a link to the Minnesota Public Radio podcast:

http://minnesota.publicradio.org/display/web/2010/07/28/midmorning1/

City Regulation of Smoke Part 2: Recreational Fires

2010-07-19T12:37:00.000-07:00

Outdoor Wood Burners & Smoke

2010-07-13T09:08:00.001-07:00

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 fires or industrial activities. Whatever the source, smoke is a frequent topic of city regulation. This article is the first in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on Outdoor Wood Burners.

Outdoor Wood Burners
With the recent rise in the cost of natural gas and oil, the use of outdoor wood burners (also known as boilers, furnaces and heaters) is becoming more common nationally. As a result, cities may be receiving inquiries from homeowners who wish to install outdoor wood burners (OWB). In addition, cities may receive complaints from neighbors of newly installed OWBs, particularly concerning the smoke the OWB generates.

Generally, OWBs are more common in rural settings. However, recent years have seen a spike in OWBs appearing in more densely residential neighborhoods. Typically, an OWB resembles a small shed with a short smokestack. The OWB burns wood in a fire box to heat water in a water jacket that surrounds the box. An OWB can be used as a water heater and/or can be used as a primary heat source for the home (typically when attached to a forced air finance inside the home). The typical OWB is powered by wood, but some OWBs burn corn, pellets and biomass. The focus of this article is on wood burning OWBs.

Studies on Health Effects of Outdoor Wood Burners
Due to the rapid increase in OWBs in New York State, the state attorney general commissioned a study on OWB use. The report, titled “Smoke Gets in Your Lungs: Outdoor Wood Boilers in New York State,” found that neighbors of OWB users reported that smoke from the OWB:

• led to a variety of health symptoms, including upset stomach, headaches, dizziness, respiratory effects, and throat and eye irritation

• prevented neighbors from using their yards for normal activities such as gardening, hanging clothes out to dry, playing with children, etc.

• left a residue and smoke odors on items inside their homes, such as clothing, curtains and upholstery

• set off their home carbon monoxide detectors

The full report is available at this link: http://burningissues.org/pdfs/ny-outdoor-wood-boilers-05.pdf

Studies by the Federal Environmental Protection Agency (EPA) indicate that smoke produced from OWBs is dramatically higher than smoke produced by traditional interior gas and oil furnaces (over 1000 times more). Since OWBs tend to be placed in small shacks with very short smokestacks, this dense smoke is often emitted very close to the ground, near windows and in areas where people circulate. The smoke and emissions problems associated with OWBs can be exacerbated when OWB owners use the burner to dispose of trash, tires, or treated wood, potentially releasing toxic chemicals into the air. The EPA’s document “Strategies for Reducing Residential Wood Smoke” is available at this link: http://www.epa.gov/ttncaaa1/t1/memoranda/strategies-doc-8-11-09.pdf

Currently, there are no federal or state standards regulating emissions from residential OWBs. Inhalation of wood smoke is noted to cause many unhealthful side effects. According to the MN Pollution Control Agency website, burning wood adds harmful fine particles and toxins to the air. These particles can cause short term eye, lung, throat irritation problems and long-term health effects (chronic obstructive lung disease, chronic bronchitis, increased risks of cancer), and may be especially harmful young children with developing lungs. The Minnesota Pollution Control Agency also has two webpages dedicated to wood smoke at these links: http://www.pca.state.mn.us/index.php/air/air-quality-and-pollutants/general-air-quality/wood-smoke/wood-smoke.html and
http://www.pca.state.mn.us/index.php/air/air-quality-and-pollutants/general-air-quality/wood-smoke/wood-smoke-problems-and-complaints.html?menuid=&missing=0&redirect=1

City Ordinance Regulation of Outdoor Wood Burners

Despite the lack of federal and state regulations, some cities have opted to regulate OWBs on a local level through their nuisance ordinance. A nuisance is generally defined as anything that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with a comfortable enjoyment of life or property.

Cities are granted the authority to regulate nuisances via a local ordinance by state statute. In Minnesota, the regulation of smoke by cities as a potential nuisance is longstanding. In 1911, the Minnesota Supreme Court upheld a Minneapolis ordinance defining excessive smoke as a public nuisance noting that “smoke. . . becomes a nuisance when it permeates that air surrounding people and invades their residences and places of occupation.” See State v. Chicago, Milwaukee & St. Paul Railway, 114 Minn. 122 (Minn. 1911).

The council has authority to explicitly define a particular nuisance, and then to provide for its regulation or abolition. This means that a city can choose to either completely prohibit OWBs as a nuisance in an ordinance, or provide detailed guidelines for their use. In cities that choose to regulate OWBs, the regulations usually limit the use of OWBs to areas zoned for agricultural use, prohibit the burning of treated wood, garbage and other potentially harmful materials, impose setback requirements from neighboring properties, require smokestacks that are at least as high as neighboring residences and require an annual permit with inspections.

Cities may also attempt to regulate OWBs through their zoning ordinance. Cities could permit or prohibit the OWBs as an accessory, conditional or interim use and establish setback and lot size requirements. If a city chooses to regulate the OWBs through their zoning regulations, they should consider whether the ordinance will be applicable to existing OWBs or considered a lawful non-conformity pursuant to Minn. Stat. § 462.357, subd. 1c. In contrast, pre-existing uses that are declared a nuisance and regulated as such are not protected as lawful non-conformities.

Sample Ordinances Regulating Outdoor Wood Burners

Some sample ordinances regulating OWB from Minnesota cities can be found at these links:

City of Shorewood, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn

St Charles, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn

Houston, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn

City of Madison Lake, MN:

http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn

Hermantown, MN:

http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn

Battle Lake, MN:

http://www.ci.battle-lake.mn.us/index.asp?Type=B_BASIC&SEC=%7BD70447F8-39DE-4DE3-AE68-D0CACA784A3A%7D

Oak Park Heights, MN:

http://www.cityofoakparkheights.com/vertical/Sites/%7B22E6E0E6-5B6F-460C-B43E-F48433F4DDAB%7D/uploads/%7B2B4A3D2D-00CC-4744-94ED-50CD64475DD0%7D.PDF

Albany, MN:

http://ci.albany.mn.us/ORDINANCE%2078.pdf

CocoDorm, Adult Uses and City Ordinances

2010-07-06T12:36:00.000-07:00

The US Court of Appeals for the Eleventh Circuit issued an opinion on June 25, 2010, related to the City of Miami, Florida’s on-going problems with an adult use business called “CocoDorm.” CocoDorm has a lot of over the top facts, but the case has been a battle over plain, old city ordinance language. The recent holding is available here: http://www.ca11.uscourts.gov/opinions/ops/200911264.pdf

CocoDorm is located in a fairly normal, upscale (some might say affluent) residential neighborhood in Miami, Florida. The Eleventh Circuit summed up the activities taking place at CocoDorm succinctly:

“The persons residing at the 27th Street residence are independent contractors of Flava Works, and, in exchange for $1,200 per month plus free room and board, are expected to engage in sexual relations which are captured by the webcams located throughout the house. Individual subscribers pay Flava Works, through the CocoDorm website, for access to live or recorded videofeeds, including sexually explicit conduct, from the webcams in the 27th Street residence.”

Victoria Mendez, Associate City Attorney for the City of Miami, summed up the business in a recent paper (written prior to the decision issued by the US Court of Appeals):

“Imagine going home after a hard day’s work, opening your front door, getting your groceries out of the car, being greeted by your six (6) year old child at the door, and looking up, casually, to see a naked man, or two, by an open window in the second floor of the house next door! Well this is commonplace for the neighbors living near 503 NE 27 Street, in Miami. It is at this property, where fellows like Ninja Nixon, Baby Star, Hunter Jones, Phantom 2, Mista B, Sexy Hustlah, Ken Mariano, Christian Armani, Domino Star, Playboy Redd, Zodiac, Jus Incredible, Nathan Kain 2, Kizzy, Markell, and Jamarion live. These are the boys from CocoDorm.com. These young men presently live together and perform live sex shows that are broadcast live via the internet for a fee. Coco Dorm, a porn website, is owned and operated by Flava Works, Inc.”

Mendez’s paper is available here: http://new.abanet.org/sections/statelocal/PublicDocuments/Sex%20and%20the%20Magic%20City.pdf.

I listened to Mendez speak at the October, 2009 IMLA Conference in Miami. As I recall, she stated that at first blush they thought they had a pretty straight forward case on their hands – CocoDorm was clearly operating an adult establishment in a residential zone and adult establishments were not permitted uses for that zone.

And then they took a closer look at their ordinance. The ordinance language in place when CocoDorm opened appeared to define adult businesses in a limited manner - as an actual, physical storefront visited by customers. For example, a bookstore, where consumers walk to and fro across the threshold to purchase goods. This language didn’t appear to fit the CocoDorm situation very well. In CocoDorm, customers didn’t visit the place of business – adult images were created on-site at CocoDorm, that were then transmitted to a warehouse elsewhere, processed and re-distributed to paying customers over the internet. Case law related to this issue existed from the nearby City of Tampa, FL (see Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001) and didn’t favor the city.

As a result, the City of Miami chose not to litigate on appeal whether CocoDorm was an adult business. Instead, they were left litigating whether the conduct was a prohibited commercial enterprise in a residential district under their more general zoning language. In the June 25th opinion issued by the US Court of Appeals for the Eleventh Circuit, the City of Miami appears to have scored a victory on this point. However, the court remanded on several constitutional issues raised by CocoDorm, so the case is on-going (with likely no end in sight for years). In the interim, Miami amended its adult use ordinances to better fit (and more clearly prohibit) the CocoDorm type businesses. The new language can be found at this link: http://egov.ci.miami.fl.us/Legistarweb/Attachments/46710.pdf

CocoDorm creates concerns for all cities big and small, because a similar business could be viable just about anywhere and in any city. Porn has tremendous profit making potential, and this is a unique opportunity to make that money with limited investment in overhead. All that is needed is a house and some webcams. Miami had several years from the Tampa Voyeur Dorm decision to consider whether a similar business might be coming their way, and yet did not amend its ordinance language to contemplate this new business model for adult establishments. I haven’t heard of any similar businesses setting up shop in Minnesota – but now might be a good time to review local city adult use ordinances to determine if the current language provides adequate regulation for this type of business.

Dead Animals, Old Ordinances and Surprising Duties For Council Members

2010-07-01T09:15:00.000-07:00

I recently blogged about the hazards of archaic ordinances and a recent fortunetelling case in Maryland. One reader noted that I should also point out that old ordinances can create some truly surprising duties for city staff and council members. Here is a 1903 ordinance from a Minnesota city on the disposal of dead animals that was only recently repealed (emphasis added):

DEAD ANIMALS (1903)
When any horse, mule, cow, sheep, hog, dog or other animal dies within the limits of the City the owner thereof shall, within forty eight (48) hours thereafter bury the same; and when the carcass weighs more than one hundred (100) pounds, such owner shall within forty eight (48) hours remove the same to the City dump grounds for burial.

The carcass of any animal removed to the City dump grounds shall be buried by the owner thereof provided, however, that the carcass of any animal removed to the City dump grounds after December 1 shall be buried by the owner before the first day of May following.

Dead animals within the city limits with unidentified owners shall be removed to the City dump grounds by the City Council member from the ward in which the animal expired.

The pit for horses, mules, and cows shall be six feet (6”) deep; for sheep, hogs and dogs and other small animals required to be buried in the dump grounds, four feet (4’) deep, and in any case sufficiently large to allow the carcass to rest upon the bottom of the pit.

Want to Follow This Blog? Here's How!

2010-06-29T13:10:00.000-07:00

This link will take you to the Blogger website and explain the process to follow a blog. "Following" a blog will allow you to get regular updates when new articles are posted. The easiest way to follow this blog is to click on the "Follow" button in the right-hand column under the section "Followers." This will prompt you to either enter an existing account or create a new account that you will use to follow this (and other) blogs.

For more information on following, check out this link:
http://www.google.com/support/blogger/bin/answer.py?hl=en&answer=104226.

New Law Regulating Tattoo and Body Art Establishments

2010-06-29T10:23:00.000-07:00

Summary of the New Law

Beginning July 1, 2010 the State of Minnesota will step into the realm of regulating body art – which includes tattooing and body piercing, scarification and body modification such as tongue bifurcation (herein after referred to collectively as “body art”). See MN Laws 2010 Chapter 317 (a link may be found at the end of this entry).

The state will offer two types of licensure – licenses for establishments where body art is conducted and licenses for persons performing body art procedures in these establishments. To do this type of work everyone must be licensed - without exception - across the state.

How the New Law Effects Cities

Cities that previously regulated body art establishments may continue to do so – if their local ordinances are as strict as the state requirements. It should be noted that establishments in cities with local ordinances will not need to obtain the new state license.

Cities may not continue to license persons practicing body art. These practitioners must now be licensed exclusively by the state.

Cities may continue to enforce zoning, building and construction requirements, nuisance control and commercial licensing of businesses in general without interruption against body art establishments.

How Should Cities Respond to the New Law?

The new law means that city councils will probably have to spend some time thinking about tattoos, piercings and tongue bifurcation. Maybe that isn’t exactly a happy thought.

All body art practitioners and establishments will need to obtain a new state license by January 1, 2011. If they fail to obtain a license, they may no longer legally perform their services in the State of Minnesota. They may also face stiff penalties for failing to comply.

With the new state regulation hanging over their heads, body art establishment owners located in your city may start visiting city hall with some questions. For example, in cities that already regulate body art establishments, the owner may be asking 1) do local standards meet the new state standards? 2) do I need to get a local license now or a state license?

Cities that currently do not license body art establishments may get requests that the city start regulating this area. Often local business owners prefer to deal with a city entity rather than a state entity. The establishment owner might view city regulation as less expensive, easier to obtain licenses and/or easier to negotiate any future difficulties that may arise.

The Most Important Question: Do We Still Want to Regulate This?

Even if the city doesn’t get these questions from local body art establishment owners, the city council may still need to review local ordinance. The most important question to ask is: do we still want to regulate this? In my experience, cities are reluctant regulators on this topic. Most of the cities that have called me for sample ordinances on these establishments were surprised to learn that the state wasn’t already heavily regulating body art.

Some other questions that it might be worthwhile to consider are:

• Can we do this as well as the state?
• If the state is willing to regulate this area, is it worth the expense for us to regulate locally?
• Do we want (or currently have) stricter standards than what the state requires? Will state regulation be adequate to protect resident safety?
• If our current ordinance is less restrictive than the state requirements, are we willing to commit to amending the local ordinance to bring it up to snuff?
• If local ordinance is currently less restrictive, are we interested in having staff assume new duties related to inspection and license issuance?

If the city wishes to continue to regulate this area, the new law must be reviewed carefully and compared to the existing ordinance – particularly the “health and safety standards” portion and the sections regulating home businesses. The city may have stricter standards than the state law. In addition, a city may choose via local ordinance to “limit the types of body art procedures that may be performed in body art establishments located within its jurisdiction.” (See Minn. Law Chapter 317, Section 2, Subdivision 9). This feature may be an argument for some cities to maintain their local ordinances.

Key Features of the New Law for Establishments

Under the new law, body art establishments may obtain a license good for three (3) years. With each new license issued, an inspection must be performed. Thereafter, inspections must occur at least once during the three year licensure period.

The law itself must me read for the detailed provisions on procedures and health standards. Some key items, however, include the following. Establishments must:

• Meet all local and state health and safety codes for buildings and not constitute a public health nuisance;
• Maintain records on the licensure and training of employees and on clients serviced at the establishment;
• Establishments in private homes must be completely separate from living, eating and bathroom areas in the home;
• Properly dispose of sharps, blood or body fluids, or items contaminated
by blood or body fluids;
• Use only single use needles and perform body art procedures in a sterile area;
• Obtain and properly maintain sterilization equipment;
• Maintain records related to “spore” tests conducted on equipment sterilizers.

The new law also contains extensive procedures for the revocation of establishment licenses where violations have occurred. In addition, violations may be punished by a civil penalty not exceeding $10,000 that includes costs for investigation and prosecution of the violation.

Conclusion

I almost wish I were a fly on the wall – able to sit in on the council discussions related to body art and tongue bifurcation that will inevitably arise in many of Minnesota’s city council chambers in the next few months. Rather than being a new mandate for regulation to cities, this new law presents cities with some interesting choices to consider. I hope this blog entry helps inform what is sure to be a colorful and varied to discussion.

Finally, for those of you who need the details of the new law. Here is a link to take you right there:

https://www.revisor.mn.gov/laws/?id=317&doctype=Chapter&year=2010&type=0

Case Law Update: Maryland Supreme Court Strikes Down Fortunetelling Ordinance

2010-06-23T08:42:00.000-07:00

Recently the Supreme Court of Maryland ruled that a local county ordinance banning fortunetelling for profit was an unconstitutional restraint on free speech protections. The case can be found at this link: http://mdcourts.gov/opinions/coa/2010/84a09.pdf.

Maryland is, of course, a long ways away from Minnesota. Their cases have no binding precedent in our state. However, the case points out a real problem that can harm Minnesota cities - archaic or out of date ordinances. Ordinances regulating fortunetellers, clairvoyants, phrenologists and similar practitioners tend to be some of the oldest rules on the books. (A phrenologist studies the bumps on your head and tells you traits about your personality – this was very popular in the 1800’s). As a blanket rule, the LMC Codification Service recommends revisiting any ordinance passed before 1950 as a potentially “archaic” ordinance.

Times change. People and common practices change. Legal precedent evolves. As a result, cities need to re-evaluate archaic provisions in ordinances or code books. The story of our changing views and practices related to fortunetelling is a great illustration of the effects the passage of time can have on a city ordinance.

A Brief History of Regulating Fortunetelling:

Many old ordinances prohibiting fortunetelling appear to have been adopted out of a fear that fortunetelling was synonymous with vagrancy, begging or prostitution. Such fortunetellers practiced on the street, in city parks and often visited door to door as aggressive panhandlers.

Modern practices related to clairvoyance and fortunetelling don’t tend to focus on the street corner anymore. Instead, practitioners these days may have actual store fronts centered around “new age” bookstores, meditation or wellness centers. They may offer legitimate product lines of essentials oils, candles and healing herbs in addition to fortunetelling services. Picture peaceful music playing in the background while a study group discusses their “chakras.” After they meditate and have their chakras adjusted, customers may also take a few minutes and get their tarot or “angel” cards read.

This modern type of fortunetelling business has also been the subject of recent controversy in Macon County, GA. The background information on the store’s owner (a retired police officer) and shop offerings certainly offer a sharp contrast to the old fashioned idea of the beggar/fortuneteller. Here is a link to a newspaper article on the Macon County, GA store: http://www.macon.com/2010/04/17/1097252_fortune-telling-fight-headed-for.html.

Practical and Legal Considers with Archaic Ordinances:

When evaluating a potentially archaic ordinance there are both practical and legal considerations. Often times the practical considerations are such that the legal concerns don’t even need to be reached in deciding to amend or discard the ordinance. Here are some practical questions ordinance drafters (and the city councils there serve) should ask when reviewing a potentially “archaic” ordinance (adopted before 1950) and my hypothetical responses/musings related to a fortunetelling ordinance (in italics):

• Why did we regulate this conduct to begin with? (hypothetical answer - to prohibit fortunetelling that was really a front for begging or worse on street corners 50 years ago).
• What types of behavior or negative results were we trying to prevent when the ordinance was adopted over 50 years ago? Does the risk of those behaviors/negative results still exist? (hypothetical answer - are modern people still intimidated by beggars posing as fortunetellers? I guess I might still be intimidated if someone asked, depending on the time of day).
• Do people still commonly try to attempt the prohibited conduct? (hypothetical answer - no one has ever approached me on the street or come to my house in my entire life and offered to read my fortune).
• Has common, accepted practice related to the prohibited conduct changed? (hypothetical answer - yes, practice related to fortunetelling has changed quite a bit. Some of these places do good business as “new age” bookstores and have nice storefronts – offering classes, entertainment, and products such as candles and essential oils. They bring customers to the city, who also stop and buy goodies at the local coffee shop and gas at the corner store).
• Does state law (or some other source of regulation) now offer a better way to regulate the prohibited conduct? (hypothetical answer – I guess, if we’re really afraid of these fortunetellers operating as a front for begging or prostitution, we could pass a panhandling ordinance with the help of our attorney, and there are state laws related to prostitution already on the books. Possibly fortunetellers not operating in a shop would need a peddlers license and background check under our existing city peddlers ordinance).
• Do we feel any urgency related to regulating this conduct anymore? Have we needed to enforce this ordinance in the last 5 years? 10 years? (hypothetical answer - I just don’t see a lot of roving fortunetellers on the street. If they want to have a storefront business in town, they can follow the rules everyone else does for building appearance and maintenance and we have zoning in place too).

There are also legal considerations that need to be taken into account when evaluating archaic ordinances. Here are some important legal questions to ask:

• Do we still have the authority to regulate this area via city ordinance? Have we been superseded by state statute or federal law?
• Has the state or federal courts ruled against cities trying to enforce these types of ordinances?
• Does the ordinance regulate expressive conduct, speech or private human relations in a way that is no longer acceptable under modern state and federal court rulings? In a way that may still be acceptable but nonetheless carries a high risk of challenge in litigation?

Common Archaic Ordinances

Archaic ordinances crop up in many areas outside of fortunetelling. A few examples of archaic ordinances where the city’s authority to regulate has been superseded by state law are:

1) Ordinances on building construction and structure safety (superseded by the MN State Building Code);
2) Ordinances on “drugging” (regulating pharmacies and medical quality in an era before the FDA); and
3) Provisions on public drunkenness (now prohibited by Minn. Stat. 340A.902).

Common examples of ordinances overruled by the courts, include prohibitions related to dressing inappropriately for ones sex (typically prohibiting women from wearing men’s clothes), vaguely written loitering ordinances, restrictions on women serving on city board positions and some broadly drawn restrictions on “lewd” conduct.

Combating the “Charm” of Archaic Ordinances

Occasionally, when reviewing archaic ordinances, a person will ask me “what’s the harm?” or note that they find older ordinances “charming,” or “quaint.” I too value the past, but unfortunately, the city code or ordinance book is not the appropriate place to memorialize those yesteryears. It is important to note that repealed ordinances aren’t simply thrown in the trash. Minnesota law requires cities to maintain copies of old ordinances for their historical value. As a result, taking the provision out of the current ordinance book doesn’t mean it’s lost forever.

As we have discussed above, old ordinances can create liability for cities – particularly when the ordinance implicates speech or fundamental freedoms. But even innocuous archaic ordinances (related to horse hitching, cattle driving, suppression of riots), take up space in an ordinance book, potentially slowing down and consuming city staff time. They can also multiply copying, retrieval and maintenance costs for both paper and electronic records. Finally, archaic ordinances can create a perception that city regulation is behind the times and therefore not conducive to economic or cultural initiatives that wish to invest in the city.

Conclusion

I’m grateful to the courts of the great State of Maryland for giving us this chance to discuss the problems that archaic ordinances can create for Minnesota cities. While fortunetelling ordinances appear to be relatively rare in Minnesota, archaic ordinances on many other subjects frequently pop up before the LMC Codification Service. I’m predicting that the Maryland experience may give many people pause to consider the (hopefully limited) future of their archaic ordinances.

2010 State Law Changes Affecting City Codes

2010-06-16T12:01:00.000-07:00

We have reached the end of the 2010 MN state legislative session. Here is a "hit list" of new laws that may require changes to local city codes.

This entry is meant to complement the LMC Intergovernmental Relations Department’s 2010 Law Summaries available on the League of MN Cities website at http://www.lmc.org/page/1/currentlaw-summaries.jsp.

I have summarized the law change briefly and listed the page number in the 2010 Law Summaries to consult for more detail.

1. BUILDING CODES, NUISANCES AND LAND USE

Property Maintenance/Nuisance Structure Ordinances. Minn. Stat. § 326B.121 amended to affirm city authority to adopt local ordinances requiring structures to be maintained in a safe and sanitary condition or in good repair. Local ordinance may establish timelines for completion of exterior work on a structure, so long as the regulation does not require completion of exterior work earlier than 180 days following the issuance of the permit. This statute addresses city concerns after City of Morris v. Sax Investments, Inc., 749 N.W.2d 1 (Minn.,2008) and Wessman v. Mankato, No. A08-0273. (Minn. App.2008). (See page 4 of the 2010 Law Summaries for more information).

Sign Ordinances. Minn. Stat. § 211B.045 amended. City must permit all noncommercial signs of any size to be posted in any number from 46 days before the state primary in a state general election year until ten days following the state general election. Previously this statute allowed the postings beginning August 1. (See MN Laws 2010 Chapter 184 Section 42 at this link: https://www.revisor.mn.gov/laws/?year=2010&type=0&keyword_type=all&keyword=211B.045&doctype=Chapter&id=184).

Shoreland Ordinances. Minn. Stat. § 103F.351, subdivision 4, is amended permit the MN DNR to engage in rulemaking to set conditional use permit standards for zoning and land use ordinances for lands protected by the federal Wild and Scenic Rivers Act, and the federal Lower St. Croix River Act of 1972. These rules will pre-empt local requirements. (See page 39 of the 2010 Law Summaries for more information).

2. CITY ADMINISTRATION

City Administration Ordinances/City Charters. Minn. Stat. § 410.191 and § 412.02 were amended to prohibit the mayor or city council members from being employed by the city in a permanent full-time position. The city does not need to adopt an ordinance to effectuate this provision, but conflicting ordinance or charter provisions may need to be repealed. (See page 23 of the 2010 Law Summaries for more information).

3. LICENSING

Liquor Licensing & Regulation Ordinances.

Minn. Stat. § 340A.409 Subd. 1 amended to raise minimum insurance requirements for retail liquor licenses.

Minn. Stat. § 340A.409 Subd. 4 amended to exempt wholesalers who donate wine to an organization for a wine tasting conducted under section Minn. Stat. § 340A.418 or Minn. Stat. § 340A.419 from the minimum insurance requirements.

Minn. Stat. § 340A.419 amended to allow the tasting of malt liquor and other spirits at wine tastings.
(See page 42 of the 2010 Law Summaries for more information).

Tobacco Licensing & Regulation Ordinances. Minn. Stat. § 297F.01, Minn. Stat. § 325F.77, Minn. Stat. § 461.12, Minn. Stat. § 461.18, Minn. Stat. § 609.685 amended to allow city ordinance to regulate tobacco related products (including new devices for snorting, sniffing and inhaling) along the same lines as traditional smoking tobacco. Minn. Stat. § 609.6855 was created to read to criminalize selling/providing tobacco related products and the sale of nicotine delivery products to minors. (See page 34 of the 2010 Law Summaries for more information).

Tattoo, Body Piercing & Body Art Ordinances. New law Minn. Stat. § 146B was created to regulate body art establishments (including piercing, branding, scarification and tattooing). City ordinance may regulate these establishments, provided that their requirements are as strict as the state requirements. Individuals working at the facility must obtain a state professional license. (See page 34 of the 2010 Law Summaries for more information).

4. UTILITIES

Sewer/Water Ordinances. Minn. Stat. § 326B.43 amended to permit the State Plumbing Board engage in rulemaking to set minimum statewide standards for all new plumbing installations performed anywhere in the state. These rules will pre-empt local requirements for installations. (See page 4 of the 2010 Law Summaries for more information).

Air Conditioning Standards. Minn. Stat. § 326B.52 & § 326B.53 amended to permit the State Plumbing Board to engage in rulemaking to set minimum statewide standards for all new water conditioning servicing and water conditioning installations, including additions, extensions, alterations, and replacement. These rules will pre-empt local requirements for installations. (See page 4 of the 2010 Law Summaries for more information).

5. VEHICLES AND STREETS

Abandoned & Junk Vehicles/Impoundment Ordinances.

Minn. Stat. § 168B.06 was amended to exclude weekend and legal holiday days from the time period for giving written notice of a vehicle being impounded. (See page 71 of the 2010 Law Summaries for more information).

Minn. Stat. § 168B.06 was amended remove this language “or has a household income at or below 50 percent of state median income” from the provisions allowing certain low-income persons to retrieve belongings from impounded cars. The same language was removed from the notice of impound provisions. (See page 71 of the 2010 Law Summaries for more information).

Minn. Stat. § 169.041 was amended to clarify authority to tow vehicles in numerous situations, including where a vehicle blocks signage, driveways, hydrants and alleys. (See page 73 of the 2010 Law Summaries for more information).

New State Traffic Offenses.

Minn. Stat § 169.15 was amended to designate “gridlocking” as a state traffic offense. Local ordinance on this subject is pre-empted. (See page 73 of the 2010 Law Summaries for more information).

Minn. Stat. § 169.26 was amended to designate pedestrian entrance into railroad crossings when the bars are down or when a signal is audible as a state traffic offense. Local ordinance on this subject is pre-empted. (See page 73 of the 2010 Law Summaries for more information).

All-Terrain Vehicles. Minn. Stat. § 84.92, Subd 9 & 10 changed the definitions related to weights for Class 1 and 2 all-terrain vehicles (ATV). Local ordinances may have utilized the previous definitions and need to reviewed. (See MN Laws 2010 Chapter 361 Section 15 & 16 at this link: https://www.revisor.mn.gov/laws/?year=2010&type=0&keyword_type=all&keyword=84.92&doctype=Chapter&id=361).

Street Regulation Ordinances/Heavy Vehicle Permits. Minn. Stat. § 169.801 - 169.87 were modified related to heavy vehicles. If the city regulates vehicle weights on its streets or issues permits for heavy vehicles pursuant to city ordinance, these provisions should be reviewed. (See page 74 of the 2010 Law Summaries for more information).

CONCLUSION

State law changes can often require a concurrent local change to city ordinance. In fact, a busy legislative year can poke numerous holes in an otherwise sound local code. Out of date codes can create unwanted liability for a city or may render needed provisions unenforceable. On a more positive note, sometimes legislative changes grant new powers and authority to cities—also requiring changes to local ordinance.

Hot Topic: Urban Chickens & Local Regulation

2010-06-14T07:13:00.000-07:00

Urban chickens are a definitely a trend. A simple Google search will clue you into the expanding world of city chickens and the people who love and vocally advocate for them. Faced with more requests from residents, some cities are drafting specific ordinances to address the issue. Alexis Stangl, an LMC attorney colleague, has compiled a sampling of chicken ordinances that may be of assistance. If you are looking to regulate chickens, try these sample ordinances:

• City of Duluth (Chapter 6, Article VII, Sections 6-79, 6-79.1): http://www.municode.com/resources/gateway.asp?pid=50009&sid=23

• Fergus Falls, Ordinance No 108, Sixth Series
http://www.ci.fergus-falls.mn.us/vertical/Sites/%7BC83A9759-035D-4EAB-A39F-EA24B2F5336D%7D/uploads/%7B64ADBD63-75F8-4D2F-AE1D-FF654096D49C%7D.DOC

• Grand Rapids (Chapter 10, Article III): http://library1.municode.com/default-test/home.htm?infobase=13419&doc_action=whatsnew

• Minneapolis (Title 4, Chapter 70): http://www.municode.com/Resources/gateway.asp?pid=11490&sid=23

Common features of chicken ordinances include:

• Permit requirements;
• Limits on numbers of chickens (either a flat number or a sliding scale based on acreage);
• Limits on districts in the city where they may be located;
• Living conditions for the chickens (coop size, etc);
• Requiring written permission from neighbors;
• Location of coops and runs (usually must be located in rear yard);
• Restrictions on keeping male roosters;
• Minimum acreage requirements for lots where chickens are raised.

However, it is important to note that the most common ordinance provision is to prohibit chickens altogether as farm animals (or strictly limit their presence to agricultural lots). Cities issuing permits for and allowing urban chickens still continue to be a rarity in Minnesota.

An interesting final note from my Google search on urban chickens is that there now appear to be urban chicken “rescue” operations. Like dog rescue operations, these sites indicate that the keeping of chickens can create problems for the animals and public related to neglect or maltreatment. Time limits on permits, requiring permit renewals, procedures for permit revocation and inspections can be drafted into ordinances to help limit these types of problems. State law contains explicit prohibitions at Minn. Stat. § 343.31 (find at https://www.revisor.mn.gov/statutes/?id=343.31) on the keeping and use of fighting animals (including chickens). It may be helpful to include a reference to the statute in local ordinance.

Hot Topic: Fence Ordinances

2010-06-07T13:49:00.000-07:00

The Star Tribune recently ran an article identifying a new trend in home improvement – the construction of large “privacy” fences in residential neighborhoods. These fences tend to be in the 6 to 8 foot range, dwarfing the standard front yard white picket fence of yesteryear. The article notes “the passion for fences has led some cities to refine their ordinances to prevent people from erecting too-tall fences or building fences with the ugly side facing out.”

The article muses that the fence trend may be related to the recent problems in the real estate market. Homeowners, who in a hotter housing market may have moved to avoid the sight of “their neighbor in the hot tub,” can’t move – so they build a fence instead. State law provides only limited regulation of fences. For example, Minn. Stat. § 561.02 prohibits “spite fences” as a private nuisance. The lack of state regulation means that most fence regulation will be an entirely local, city matter.

The Star Tribune article prompted me to review the cache of fence ordinances at LMC. I was curious also, to investigate whether or not challenges to city fence regulations were common. Challenges have occurred – most notably the recent unpublished case of State v. Enright, A09-795 (MN Ct. App. 2010)(this case is discussed in previous blog entries). Generally, the city’s authority to regulate fences for the public welfare has been upheld in Minnesota and nationally.

A. City Regulation of Fences.

Why do cities regulate fences? There is certainly an aesthetic concern at play. Tall, front yard fences and poorly maintained fences can have a negative effect on neighborhood surroundings. However, most cities do not regulate out of concern for aesthetics alone. Common public safety concerns leading to fence regulation are:

• Preventing tall fences from obstructing clear view on streets for vehicles, children and pedestrians;
• Greater ease of access for fire personnel;
• Clearer view of streets for patrolling police,
• Prohibiting dangerous materials (such as barbed wire and electrified fencing) from use in residential areas;
• Prohibiting poorly maintained fences (which may fall into the right of way or on passersby).

In reviewing the cache of LMC ordinances, the most common features in fence ordinances are:

• Limiting height in front yards (usually under 4 feet);
• Allowance for taller backyard fences (usually 6 feet);
• Regulation of fences on corner lots that may limit sight lines/sight triangle;
• Fence construction materials requirements (some list either prohibited materials, permitted materials or both);
• Requiring the fence installer to construct fence solely on their own property (and demonstrate property lines);
• Requiring the “finished” side of the fence to face outward towards the neighbors;
• Requirements for fence maintenance and repair;
• Setbacks from property lines or natural features such as lakes.

B. Fence Ordinances and Void for Vagueness Concerns.

As demonstrated in Enright (cited above), fence ordinances are susceptible to challenges that they are void for vagueness. All ordinances, including fence ordinances, must be clearly drawn as to give an ordinary person an idea of the type of conduct prohibited. State v. Newstrom, 371 N.W.2d 525 (Minn.,1985).

1. Definitions: Fence

In reviewing numerous city fence ordinances, I noted that some significant definitions were missing. This is potentially problematic should an ordinance be challenged in court. Specifically, some ordinances did not define the term “fence.” If the term fence is undefined, you may run into problems enforcing your “fence” ordinance against properties where the clever property owner insists they have constructed “walls.” In addition, you may wish to consider – can shrubbery be a fence (when planted along a property line)? How about a trellis or a landscaping berm?

2. Definitions: Good Repair

Cities also tend to require that fences be “kept in good repair.” It may be helpful to spend some time thinking about criteria that indicate good/bad repair and put those specific criteria into the ordinance itself. For example, does good repair mean the fence is painted or treated with a weather resistant coating? Free of rust? Has strong supports so it won’t fall? Does a fence in bad repair have missing slats, holes or protruding pieces? General language such as “good repair” is permissible in an ordinance – and needed so that the ordinance can apply to a variety of situations. But an ordinance must also contain direction to the staff enforcing the ordinance that limits their discretion to avoid arbitrary enforcement. State v. Newstrom, 371 N.W.2d 525 (Minn.,1985). As noted in State v. Reha, 483 N.W.2d 688 (Minn.,1992), one person’s concept of “clean” or “well-maintained” can be wildly different from another’s.

Here is some good sample language related to fence maintenance from the Apple Valley City Code § 155.351.

C) Fence regulations. A fence is a public nuisance and prohibited accordingly if it does not comply with the following requirements:
(1) The fence shall be firmly fastened and anchored in order that it is not leaning or otherwise in the stage of collapse.
(2) The fence shall be maintained in sound and good repair and free from deterioration, loose or rotting pieces, or holes, breaks, or gaps not otherwise intended in the original design of the fence. The fence shall be free from any defects or condition which makes the fence hazardous.
(3) All exterior wood surfaces of any fence, other than decay resistant woods, shall be protected from the elements by paint or other protective surface coating or treatment, which shall be maintained in good repair to provide the intended
protection from the elements.
(4) No fence section shall have peeling, cracked, chipped or otherwise deteriorated surface finish, including but not limited to: paint or other protective coating or treatment, on more than 20% of any one linear ten-foot section of the fence.
(5) Any link fence, where permitted, shall be constructed and maintained in such a manner that no barbed ends be located at the top of the fence.

3. Definitions: Standards for Measuring Height

It may also be helpful to check if your ordinance specifies how height will be measured. Specifically, will the height be measured from the bottom of the fence or the grade? For example, this seems like a good provision from the Lake Elmo City Code § 154.129:

(B) Fence height in interior yards. No fence shall be constructed exceeding 72 inches in height measured from grade in interior yards; and, any portion of such fence above 42 inches measured from grade shall be open to light and air over 75% of the surface area.
(D) Grade defined. The grade from which fence height measurements are calculated shall only be from either natural grade or grade modified responsive to a grading plan approved by the city; and, shall not include the height of berms or introduced increases in ground elevation that would raise the effective fence height over that which would be otherwise permitted by this subchapter, except that a combination of raised grade and fence that would exceed in sum the fence height permitted by this section may be specifically approved by the City Council as an element of a subdivision plat or commercial site plan approval establishing specific property grading and topography.

This type of definition will prevent the clever/determined homeowner from shoring up an earthen berm underneath the actual fence structure intended to increase the height of the fence.

C. Enforceability and Potential Conflicts with Other Provisions:

In order to facilitate ease in enforcement, the city may wish to consider any conflicts that may arise among chapters in its code book. Many cities may have a standalone fence ordinance as a portion of their zoning or nuisance provisions. Other cities have fencing provisions scattered throughout the code. It is important to make sure that all the fence the provisions harmonize. For example, do your general fencing requirements take into account other ordinance provisions for fencing in dangerous dogs? Do they take into account required fences for private recreational facilities such as pool and tennis courts? How about screening in industrial/commercial areas for outside storage or refuse collection areas?

You may also wish to consider (and build into your ordinance) areas where different fencing regulations may be appropriate. For example, you may consider ordinance provisions that allow:

• Residents on busy highways to build taller fences abutting the road;
• Residents near commercial or industrial uses to build taller fences;
• Agricultural districts to utilize different fencing materials.

Recognizing that a “one size fits all” approach may not work for your city when drafting an ordinance can reduce the inevitable requests for zoning variances and ease administration.

D. Conclusion

LMC has sample fence regulations in its files going back to the 1920s. As a result, I’m not so sure that the Star Tribune has identified a “bonafide” new trend in privacy fences. However, the article serves as a nice reminder to review and consider older fence ordinances. These ordinances, just like the fences they regulate, could always be spruced up with a new coat of paint.

The Star Tribune article referenced herein is available at this link:
http://www.startribune.com/lifestyle/homegarden/95161789.html?page=1&c=y

Here is a link to help you find the Lake Elmo and Apple Valley City Codes (used as samples above): http://www.amlegal.com/library/mn/index.shtml

5 Minute Video on the MN Basic Code

2010-06-02T10:42:00.000-07:00

The MN Basic Code (MBC) is one of the core services provided by LMC Codification. The MBC is a code book designed specifically for smaller cities user 1,000. More about the MBC can be learned from this new 5 minute narrated presentation. http://www.lmc.org/media/video/1/mnbasiccode.swf

The Minnesota Basic Code

2010-05-27T11:18:00.000-07:00

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.

Recent Case Law Developments: Vague Ordinances

2010-05-11T13:31:00.000-07:00

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.

Welcome to the Brand New LMC Codification Blog!

2010-05-07T08:19:00.000-07:00

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.