Agenda - Planning Commission - 08/07/2008

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. .;~.,........;. '. June 25, 20081 Volume 21 No. 12 )1 In October 2000, Howeth sued the city and the Commission. Among other things, Howeth argued: (1) it was entitled to a certificate of no ac- . tion and approval of the preliminary plat applications because of the Commission's failure to act on the application within 30 days, as re- quired by statute; and (2).~ 16-38 was unconstitutionally vague. The district court ruled against Howeth. Howeth appealed. DECISION: Affirmed. .1 l The court first concluded that Howeth was not entitled to certificates of no action under the state statute. The court said this was because the preliminary plat applications did not meet the statutory. requirements for recording with the county clerk. The court said that in order for a court to enforce the 30-day rule, a plat-whether preliminary or final- filed with the municipal planning commission had to meet the statutory requirements for recording with the county clerk. The court found that Howeth's preliminary plats lacked the owner's acknowledgement and did not locate the subdivision with respect to a required corner. Because of these failures, the plat could not be recorded. Since the plat did not comply with the law entitling it to recording, the court concluded that an order requiring the Commission to issue the desired certificate would be useless. The court next concluded that ~ 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 in- terpretations of "unavoidable" meant ~ 16-38 was ambiguous, it did not mean it was so vague as to be unconstitutional. Statutes were pre- sumed to be constitutional. The court said that a statute or ordinance was unconstitutional if it was so vague that persons of ordinary intel- ligence would not have notice of what was prohibited. Similarly, a law waS unconstitutional if it was so vague that it could be arbitrarily and discriminatorily 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 ~ 16-38 met the "fair notice." test; Howeth could understand there were two interpretations and could articulate to the Commission why its interpretation was the correct one. The court noted that agency interpretations were ge~erally deferred. to. Havirig already found the Coinmission's interpretation of ~ 16-38 was reasonable, the court deferred to it. The court concluded that ~ 16-38 was not unconstitutionally vague as applied to Howeth and therefore was not unconstitutionally vague on its face. @ 2008 Thomson ReutersNVest 11 35