This Week in Oral Arguments 3.12.09

One of the arguments occurred yesterday, one is likely starting as I type, and the other is a case we’re involved in (St. Paul v. MGM, Chad Lemmons represents MGM in that matter).  So this is more in the way of brief review, instead of argument preview.

Rainbow Taxi v. Minneapolis, A08-993 (argued yesterday).  Rainbow Taxi challenges the Minneapolis ordinance mandating 5% fleet minimums for a) wheelchair accessible cabs, and b) fuel-efficient cabs for each “taxicab service company.”  Rainbow fought a citation for failing to meet the standards in front of a Minneapolis hearing officer, and now seeks review of the adverse decison on certiorari appeal.  Rainbow does not allege pocedural irregularity or other direct attack on the process afforded it, but argues a) the Ordinance should not apply, as Rainbow’s “own” fleet is 12 cabs, and some of those are leased to independent contractors (the ordinance applies for all companies with fleets of 15 or more; the City says the fleet is 46 because that’s the number of cabs under Rainbow’s dispatch service, hence “service company”); and b) the Ordinance is unconstitutional, with their best arguments focused on the vagueness of “fleet” and “fuel efficient.”  Rainbow’s central complaint is that the wheelchair-cab mandate is a financial disaster, stating that they can’t get drivers to take the cabs, and of 30 wheelchair cab licenses granted to all companies since 1995, only 3 such cabs are on the street today.  Rainbow also makes an equal-protection claim, perhaps misapplying the Olech doctrine but positioning their industry against limousine services, shuttle bus operators and other private-sector transportation.  The City covers its initial bases first, noting the lack of an attack on the due process afforded to Rainbow in the City hearing, and stating the standard presumption of constitutionality afforded to city ordinances.  In response to Rainbow’s sharpest constitutional claims, the City offers that the meaning of “taxicab service companies” is well-understood, essentially applying to all cabs operating under a given company’s “colors”, and needed no further definition within the ordinance.  “Fuel efficient” was left for later Council determination in the ordinance (flexible, but subject to dustups just like this one) and the Council had adopted a resolution setting 23 MPG as the “fuel efficient” line for taxicabs.  The City notes that both items were consistently enforced, but did not address in its brief whether a resolution is proper for defining a term that will affect the enforcement of a penal ordinance.  The State Law Library’s file did not contain a reply brief from Rainbow, if one was filed.

Clear Channel v. Arden Hills, A08-1388, for Court of Appeals argument this morning.  Clear Channel appeals from the grant of summary judgment to Arden Hills on Clear Channel’s complaint for declaratory judgment.  The underlying dispute concerns the LED billboard Clear Channel installed on I-694 in Arden Hills (on a billboard which was already a nonconforming use under city ordinances).  Many cities’ planning staffs have hated these screens, and have felt that Clear Channel (and its competitors) have snuck these in through backdoors or, in the Arden Hills instance, just done it without asking for permission.  This is certainly a decision that will have an impact on a current hot topic, but may also set the course of nonconformity law, either re-establishing or overturning Minnesota’s common-law understanding of the concept in light of 2001 codification of nonconformity, and a 2004 amendment to that same statute.  Both Clear Channel and Arden Hills accuse each other of blatantly misreading the text of Section 462.357, subd. 1(e), though the real argument is whether converting a standard billboard into a TV set is an “improvement” (Clear Channel’s position) or an “expansion” (Arden Hills’ position, adopted by the District Court).  Maybe as a result of the District Court opinion, neither side focuses on the most obvious change (the dynamic LED screen), but on whether the added depth, volume, and accompanying changes to the billboard support to hold the additional weight are improvement or expansion.  Clear Channel relies heavily on legislative history (which is normally not a good strategy in cases interpreting State laws) to stake a claim for a brand new day in nonconformities, in which the old concepts of elimination through obsolescence do not apply.  The Auto Dealers’ Association filed an amicus brief urging the Court to adopt a new three-part test for nonconformities based on recent holdings of New England courts (Mass., Ct., and NH are cited): 1) a threshold determination of what use was in place at the time of grandfathering; 2) the “improvement” (slightly loaded wording, no?) would be analyzed to see if it “merely improves” the operation/structure or if it constitutes a departure “from the nature and purpose of the original”; and 3) determine whether the improvement will cause the NCU to have a different impact on the surrounding neighborhood.  Arden Hills responds by defending the “old regime” against the codification and amendment, noting that regardless of any new rules for “improvement,” “expansion” is still clearly governed by the traditional understanding of nonconformity, and the added bulk of the dynamic sign is an obvious expansion in their view (and they did prevail at District Court).  The City takes on the MADA’s suggested new approach, noting most powerfully that the New England courts who have adopted the 3-part test have come to regret it in fairly short order, as it leads to confusion and inconsistent application, even by appellate courts.

If that isn’t enough, the case also raises a question of preemption: does Federal billboard law and State billboard controls in MnDOT right-of-way pre-empt local regulation unless the City gets MnDOT certification?  This question also draws an amicus, this time from the outdoor advertisers’ association, arguing that Arden Hills lacks certification to regulate outdoor advertising in the Federal/MnDOT ROW under Minn Stat 173.16, subd. 5.  The billboard company and billboard association follow this up with attacks on the ordinance itself, on the application of a certain lighting standard, the division of the city into districts with different standards, on the aesthetic regulation of the ordinance, and finally on a provision that requires the Planner to reject applications in writing within 30 days (arguing for 15.99-style automatic approval to guard against ad hoc  justifications).  Arden Hills takes on the pre-emption argument with a full dissection of the applicable standards – which seemed to be missing in the proponents’ briefs.  The City also defended its ordinance on the various grounds of attack (sorry for cutting it short, but there is a lot here and this portion is the most routine). 

As neither side spends much time arguing about the existence of material fact, but is pounding straight to the law, expect either a full affirm or a full reversal when the decision comes out; the loser is certain to petition to the Supreme Court, and this would seem to be a likely grant for them.  This is definitely a case to watch.

Saint Paul v. MGM, A08-1439, argued today.  Saint Paul is appealing a grant of summary judgment denying its attempt to require MGM to block access to its parking lot from the alley behind the property, and to maintain a screening fence on its back property line.  MGM resisted, and prevailed at District Court, primarily on property-law doctrines.   As I mentioned, Chad Lemmons of Kelly & Lemmons briefed and is arguing MGM’s side of this case, so I’ll refrain from deep analysis of the case.


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