Agenda - Planning Commission - 07/10/2008

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June 10, 20081 Volume 21 No. 11 The Commission denied the preliminary plat applications. The Commission based its decision in part on its determination that the first of the suggested interpretations of "unavoidable" was proper. In October 2000, Howeth sued the city and the Commission. Among other things, Howeth argued: (1) it was entitled to a certifi- cate of no action and appro'val of the preliminary plat applications because of the Commission's failure to act on the application within 30 days, as required by statute; and (2) S 16-38 was unconstitution- ally vague. The district court ruled against Howeth. Howeth appealed. DECISION: Affirmed. The court first concluded that Howeth was not entitled to certifi- cates of no action under the state statute. The court said this was be- cause the preliminary plat applications did not meet the statutory re- quirements for recording with the county clerk. The court said that in order for a court to enforce the 30-day rule, a plat-whether prelimi- nary or final-filed with the municipal planning commission had to m,eet the statutory requirements for recording with ,the county clerk. The court found that Howeth's preliminary plats lacked the ovv-ner's acknowledgement and did not locate the subdivision with respect to a required corner. Because of these failures, the plat could not be re- corded. Since the plat did not comply with the law entitling it to re- cording, the court concluded that an order requiring the Commission to issue the desired certificate would be useless. The court next concluded that S 16-38 was not unconstitutionally vague, either on its face or as applied to Howeth. The court agreed with the city attorney's, findings as to the term "unavoidable": there was no case law or legislative history to aid in interpretation of the term; and there were two reasonable interpretations of the term- those set out by the city attorney. The court said that although the two reasonable interpretations of "unavoidable" meant S16-38 was ambiguous, it did not mean it was so vague as to be unconstitution- al. Statutes were presumed to be constitutional. The court said that a statute or ordinance was unconstitutional if it was so vague that , persons of ordinary intelligence would not have notice of what was prohibited. Similarly, a law was unconstitutional if it was so vague that it could be arbitrarily and discrirninatorily enforced by those who applied it. On the other hand, if there WaS a reasonable degree of certainty as to its application, a statute was constitutional. The court found that S 16-38 met the "fair notice" test; Howeth could 11 71