Ordinances on Disposing Animals in City Custody

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion:

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

About Guest Author Alexis Stangl:

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

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The Barking Dog Blues: Ordinance Standards for Dogs

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

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

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

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

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

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

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

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

Conclusion:

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

About Guest Author Alexis Stangl:

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

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Drafting Licensing Ordinances Part II

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

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

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

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

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

Noise

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

Dust, particulate matter & smoke

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

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

Visual blight and litter

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

Lighting and glare

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

Crowds and safety

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

Conclusion

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

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

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

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

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

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

State Law Regulation of Liquor Establishments:

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

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

What Should We Include in Our Liquor Ordinance?

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

Evacuation Clause:

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

Nudity and Adult Uses:

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

Location of Liquor Establishments:

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

Types of Licenses:

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

Times and Days of Sale:

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

Define Liquor Act Terms More Restrictively:

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

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

Due Process Concerns

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

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

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

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

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

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

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

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

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

Conclusion

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

Is Your Land Use Ordinance Out of Date?

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

Frequent Changes in State Law

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

Suggestions for Ordinance Review

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

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

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

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

Conclusion

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

Smoke Readers & Zoning Ordinances

Welcome to Our Series on Regulating Smoke


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

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

Smoke in Zoning Ordinances

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

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

Minnesota Pollution Control Standards:

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

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

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

The Ringlemann Chart:

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

Ordinance provisions using the Ringlemann chart typically look like this:

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

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

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

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

Minnesota Regulation APC 1-15

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

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

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

Conclusion

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