Ordinances on Disposing Animals in City Custody

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion:

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

About Guest Author Alexis Stangl:

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

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Drafting Licensing Ordinances Part II

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

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

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

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

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

Noise

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

Dust, particulate matter & smoke

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

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

Visual blight and litter

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

Lighting and glare

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

Crowds and safety

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

Conclusion

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

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Tips for Drafting City Licensing Ordinances

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

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

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

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

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

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

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

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

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

Drafting Suggestions

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion:

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

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

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

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

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

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

Vehicles the City Must Allow:

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

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

Vehicles That May Be Authorized by Local Ordinance:

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

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

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

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

Conclusion:

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

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

Ordinance Language for Inspections & the Fourth Amendment

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

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

Another recent example I have found states:

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

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

Administrative Inspections and the Fourth Amendment

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

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

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

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

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

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

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

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

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

Consequences for Fourth Amendment Violations

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

Conclusion

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

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Ordinances Can Help Cities Preserve Streets

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

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

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

Heavy Load Restrictions:

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

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

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

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

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

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

Damage from Negligence and Overt Acts:

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

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

Organize Solid Waste, Garbage Collection:

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

Work, Excavation and Maintenance in the ROW:

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

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

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

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

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

Allowing Alternative Traffic:

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

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

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

Conclusion

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

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Quick Tips on Understanding & Writing Ordinances

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

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

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

Tip One:

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

Tip Two:

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

Tip Three:

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

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

Tip Four:

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

Conclusion

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

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Is Your Land Use Ordinance Out of Date?

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

Frequent Changes in State Law

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

Suggestions for Ordinance Review

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

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

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

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

Conclusion

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

City Zoning Ordinances Can Be Improved with Images & Diagrams

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

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

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

Sample Images Used in City Ordinances:

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

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

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

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

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

3. City of Cary, North Carolina Zoning Code:

9.1.5 Computations


(A) Area Computation of Individual Signs


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

Common Concerns Related to Adding Images

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

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

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

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

Conclusion

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

City Regulation of Smoke Part 2: Recreational Fires

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 second in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on recreation fires – typically small fires (under 3 feet) for roasting marshmallows and singing camp songs.

Recreational Fires

Controversy over recreational fires – and the smoke they generate - are common at city halls in Minnesota and nationally. The Sun Press carried a story from Mounds View just this past week:

http://www.mnsun.com/articles/2010/07/16/mounds_view/news/mv15council.txt

In Mounds View neighbors are upset about recreational fires on an adjacent property being carried on "six or seven nights a week” and sometimes at 2 pm. They recently brought their concerns to City Hall, as reported in the press. The smoke generated by the fires is bothering the neighbors – one of whom is asthmatic. The neighbors are also concerned because the adjacent property owner appears to be burning “roofing, siding, decorated logs (treated with arsenic and other chemicals), carpeting, clothing, garbage and green wood.” According to the neighbor testimony before city council, aside from the smoke, these materials “smell bad.”

State law already prohibits the burning of garbage and certain prohibited materials. This includes rubber, plastics, chemically treated materials, tires, etc. This is discussed extensively in the LMC Memo “Open Burning in Cities” (available at this link: http://www.lmc.org/media/document/1/openburning.pdf).

Common Local Restrictions

Many cities choose not to regulate recreational fires. Commonly, recreational fires are exempted from the permit requirements for other types of open burning. The LMC Model Ordinance on open burning takes this approach (linked above). However, some cities do choose to regulate recreational fires for public safety reasons and to limit the affects of smoke on neighboring properties.

Common restrictions on recreational fires include:

• Requiring a permit;
• Limiting the number of permits issued per property per year;
• Limiting the number of fires burning simultaneously on a property;
• Requiring setbacks from buildings and property lines (i.e. 50 feet);
• Limiting times for burning (i.e. from 8am-midnight);
• Setting fuel requirements (i.e. clean, dry wood); and
• Prohibiting fires when wind speeds are high (i.e. over 7 mph).

Sample Language Regulating Smoke

In reviewing recreational fire ordinances, some cities do include language that attempts to directly regulate smoke that may become an irritant to neighbors.

For example, this language from Cottage Grove, MN:

The fire chief may order any recreational fire to be immediately extinguished if the fire poses a nuisance to surrounding residences. A nuisance is deemed to exist if the fire generates flying embers that pose a hazard to property or generates smoke or odors that unreasonably interfere with the use or enjoyment of neighboring properties.

The City of Waconia, MN uses this language:

Burning Prohibitions.

Any smoke generated from a Recreational Fire that becomes a nuisance or irritant shall be due cause to extinguish the fire, regardless of the fuel source.

The City of West Concord, MN uses this language:

920.02. The City Fire Chief or Police Officer and/or designee may perform periodic on-site inspections.

920.03. Open fire for recreational purposes must satisfy the following requirements:

The Fire Chief, Police Officer or its designee is authorized to require that recreational fires be immediately discontinued if smoke emissions are offensive to occupants of surrounding properties or if the Fire Chief, Police Officer or its designee determines that the fire constitutes a hazardous condition.

Subd. 9. Smoke: A recreational fire shall be extinguished immediately if it generates smoke that becomes a nuisance to adjacent or nearby properties, including imposition of smoke into a neighboring structure.

Conclusion

The City of Edina website notes that “in recent years, backyard fires have become more common in suburban cities, where the confines are much tighter than you’d find in the 'great outdoors.'" The new popularity of recreational fires has prompted many cities to consider adopting new regulations on smoke and fire. However, in addition to new regulations, many cities are concurrently urging old fashioned courtesy to neighbors. For example, on the burning permit webpage for Minnetonka, it is noted that “the city of Minnetonka asks its residents to be considerate of their neighbors when having a recreational fire, such as smoke traveling onto adjoining property where breathing problems with the residents may exist.”