The Midwest Planning BLUZ

by Gary Taylor

Field Club Home Owners League v. Zoning Board of Appeals of the City of Omaha
(Nebraska Supreme Court, May 11, 2012)

Volunteers of America (VOA) proposed to build an apartment-style building for veterans in Omaha.  To construct the building as planned, VOA applied to the Omaha Zoning Board of Appeals (Board) for variances from area and use restrictions. The appellants, Field Club Home Owners League and Thornburg Place Neighborhood Association (Field Club) opposed the application. The Board granted the variances, concluding that the 1987 Code created an unnecessary hardship because it did not contemplate a project like VOA’s. The district court affirmed the Board’s decision, and Field Club appealed to the Nebraska Supreme Court.

Field Club argued that VOA lacked standing to request variances from the Board because VOA had not obtained a certificate of authority pursuant to Neb. Rev. Stat. 21-20,169(1), which provides that “[a] foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.”  The Nebraska Supreme Court found the provision inapplicable because, although VOA is a foreign corporation, VOA was not “maintaining” a court proceeding. It was Field Club that petitioned the district court and named VOA as a defendant.

Field Club also contended that because the owner of the property was Kiewit Construction Company, and not VOA, that VOA lacked standing because it had no legally cognizable interest in the property. The Supreme Court noted that the majority of courts that have considered the issue hold that a prospective purchaser under a purchase agreement subject to the grant of a variance or rezoning has standing to seek the change. Similarly, courts have held that the holder of an option to purchase property has standing to apply for a variance when the holder is bound to purchase the property if the variance is obtained or when the property owner anticipated that the option holder would seek the variance to complete the sale.  The Supreme Court agreed with these other jurisdictions, and further noted that the principles hold true in administrative proceedings as well as judicial proceedings.

However, the Supreme Court noted that Field Club did not raise the issue of standing until the case reached the Supreme Court.  Partly as a result of this, the record did not contain evidence addressing VOA’s interest in the property.  Therefore, the Supreme Court remanded the case to district court to receive additional evidence and determine whether VOA had sufficient interest in the property to seek the variances.

Nebraska courts, Variances, Zoning board of adjustment, standing Nebraska Supreme Court, standing, Variances, zoning board of appeals

by Victoria Heldt

Eldon Bugg v. City of Boonville
(Missouri Court of Appeals, April 24, 2012)

In July 2010, the City of Boonville city council held a regular meeting at which the agenda included voting on Bill 2010-015.  This bill was to approve the Kemper Village Homes Project plan site and its developer agreements.  The council held a discussion about the project where fourteen members of the community (including Bugg) spoke in opposition to it and four members spoke in favor of it.  Councilman Hombs addressed the rumors of his conflict of interest, stating that he had previously submitted a bid for the development of the project, but that he had since withdrawn the bid and no longer had any financial interest in it.  After discussion, the council voted on the matter and was evenly split with four members voting to approve and four members voting to deny.  The mayor was called to break the tie and voted in favor of the project.  The bill was signed and Boonville City Ordinance 4216 was enacted.  Bugg filed suit in trial court arguing that the mayor was not allowed to break the tie and that Councilman Hombs did have a conflict of interest.  The trial court disagreed and ruled in favor of the City.  Bugg appealed.

Bugg first argued the ordinance’s invalidity on the grounds that the bill did not receive a majority vote from the city council.  Missouri statute §77.080 provides that no ordinance shall be passed except by a bill that receives a majority vote from the council.  Missouri statute §77.250 provides that, in the event of a tie vote, the mayor is required to cast the deciding vote so long as he/she does not have a conflict of interest.  Both parties acknowledged the existence of these two statutes, but each had a different interpretation.  Bugg argued that a tie-breaking vote is only necessary when the voting process fails to result in a decision.  He reasoned that a tie equated to a failure to pass, which is, in itself, a decision.  He therefore asserted that no additional vote was necessary.  He based his argument on the ruling in Merriam v. Chicago, Rock Island & Pacific Railway Co., in which a similar tie-breaking situation took place.  In Merriam, the Court ultimately decided that the president of the council (who cast the deciding vote) was not allowed to vote since he was not technically a member of the council.

The Court rejected this argument, noting that Merriam was decided over 100 years ago and has not been cited since.  In addition, it is inconsistent with rulings that have since been decided that pertain to the statute.  The Court also noted that the rules governing such voting processes were different during the time Merriam was decided.  The Court concluded that statute § 77.250 makes the mayor a temporary member of the council for the purpose of breaking ties.  In this case, the Mayor was acting within her duty to break the tie.  Therefore, the bill was validly passed by the council.

Bugg’s second argument was that Councilman Hombs still had a conflict of interest in the matter regardless of the fact that he withdrew his bid for development of the project before the vote.  The language of the council code reads that “every member who shall be present when a question is stated by the chair shall vote thereupon, unless excused by the council, or unless he is prohibited by section 2-108 of this Code, in which case he shall not vote.”  Section 2-108 of the code contains language restricting a council member with a conflict of interest from voting.  Bugg argued that Homb’s submission of a bid created an irreversible conflict of interest and that he should be precluded from voting on the matter.  The Court disagreed, noting the code requires all council members to be free from a conflict of interest “when the question is stated by the chair.”  In this case, Hombs did not have a conflict of interest when the matter was subjected to a vote.  Bugg next argued that Hombs failed to comply with the Code when he did not “file a written report of the nature of the interest.”  The Court concluded that, since no conflict of interest existed at the time of the vote, Hombs was not required to file any such report detailing a then non-existent conflict of interest.  The Court affirmed the trial court’s decision in favor of the City of Boonville.  Ordinance 4216 was upheld.

Conflict of interests and/or bias, Missouri Courts conflict of interest, Missouri Court of Appeals

by Victoria Heldt

DF Land Development, LLC v. Charter Township of Ann Arbor
(Michigan Court of Appeals, November 17, 2011)

DF Land Development owned a 54-acre piece of property within Ann Arbor Charter Township (Township) that was zoned “A-1”.  This zoning classification allowed farming and agricultural use or one residential unit per every ten acres.  DF Land wanted the property rezoned to “R-7” so it could build multi-family residential units.  Its request was denied.  DF filed a substantive due process claim in court alleging that the denial to rezone the property constituted exclusionary zoning and a taking of the property.  The trial court granted summary judgment in favor of the Township and dismissed DF Land’s substantive due process and takings claims.

DF Land appealed, arguing that the refusal to rezone is arbitrary and capricious and that the current zoning was unreasonably restrictive.  They were of the opinion that it violated their substantive due process rights and was an “inverse condemnation of the property through regulation.”  The Court first noted that, in a review of a city ordinance, 1) the ordinance is presumed valid, 2) the challenger has the burden of proof to prove unreasonableness, and 3) the Court gives heavy weight to the trial court’s findings.  Additionally, in order to be successful in its claim, DF Land must show that no reasonable governmental interest is advanced by the zoning classification and that the ordinance is unreasonable “because of the purely arbitrary, capricious, and unfounded exclusion of other types of legitimate land use from the area in question.”

As to the question of whether the zoning ordinance serves a legitimate governmental interest, the Court found that it did.  The evidence presented showed that the ordinance worked to “preserve the rural character, natural features, and availability of open areas by limiting residential development on the property through density restrictions.”  According to precedent, this purpose constitutes a legitimate governmental interest.  It further found that the ruling was consistent with the historical use of the property, so it was not an arbitrary decision.  DF Land argued that the statute was too restrictive because it disallowed the property’s most economically viable use.  The Court dismissed that argument as irrelevant because a property does not, by law, need to be zoned for its most profitable use.

DF Land argued that the zoning ordinance was unlawfully exclusionary because it prohibited an R-7 zoning classification on the property.  The Court noted that an ordinance would only be considered exclusionary if it prohibited that zoning throughout the entire township.  Evidence demonstrated that 28-37% of the residential units in the township consisted of multi-family housing, so the R-7 zoning classification was not forbidden in the entire Township.  Therefore, the ordinance was not unjustly exclusionary.   The Court affirmed the trial court’s decision.

Due Process, Exclusionary zoning, Michigan courts Exclusionary zoning, Michigan Court of Appeals, substantive due process

SF430 was passed by the Senate last week and sent to the Governor yesterday.  It creates the Iowa Public Information Board as a new entity to investigate and enforce Iowa’s Open Meetings and Open Records Laws.  It allows the Board to facilitate a mediation and settlement process when a complainant and government entity cannot agree on whether a violation of either act has occurred, and creates an alternative complaint and enforcement proceeding to be adjudicated by the Board if mediation fails or is refused.  The Board will consist of nine members appointed by the Governor.  The Board will be given the authority to hire one staff person, an attorney, to act as Executive Director.

Iowa legislation, Open Meetings, Open Records 2012 legislation, Iowa Public Information Board, Open Meetings, Open Records

by Victoria Heldt

Delbert E. Johnson and Nancy L. Johnson v. Pierce County Zoning Board of Adjustment
(Wisconsin Court of Appeals, March 6, 2012)

The Johnsons own a piece of property that abuts the Mississippi River in Pierce County, Wisconsin.  It is undisputed that the area is a floodplain and, therefore, the Johnsons’ mobile home, screened-in porch, and deck are nonconforming uses under Pierce County’s zoning ordinances.  In April 2010 James Kleinhans (the county zoning administrator) issued the Johnsons a land use permit to floodproof the existing structures on the property.  The permit consisted of the application, a materials list, and a hand-drawn plan of the project.  The plan ordered for the elevation of all three structures onto a new concrete foundation.

In June 2010, Kleinhans observed that the Johnsons’ construction did not conform to the plan.  The screen porch was still sitting on the ground and a new structure had essentially been built where the mobile home previously sat.  It did not resemble the preexisting mobile home or deck so Kleinhans rescinded the permit and issued a stop work order.  The Johnsons appealed the decision to the Pierce County Zoning Board of Adjustment (Board) arguing that the construction did not violate the permit.  They testified that the preexisting mobile home had been destroyed by a flood before the permit was issued, so they could not elevate it in its ruined state.  They also claimed that Kleinhans was aware that the Johnsons did not plan to elevate the entire structure when he issued the permit.  They stated they tried to incorporate as much of the old structure as possible (windows, siding, paneling) in reconstruction.  Kleinhans responded by saying that if he had known the Johnsons were not elevating the existing structure in its previous state he would not have issued the permit.  The Board concluded that the Johnsons used the permit to construct a “substantially different building” and upheld the revocation of the permit.  The circuit court affirmed the Board’s decision.  The Johnsons appealed.

The Johnsons argued several points.  First, the Johnsons contended that the Board proceeded on an incorrect theory of law.  They argued that the county’s zoning ordinance does not comply with Wis. Stat. §§ 59.69 and 59.692.  The Johnsons argued that specifically ch. 238 of the Pierce County zoning code conflicts with the previously mentioned Wis. Stat.  The Court pointed out, however, that the Johnsons relied on language within that section of the zoning code to support their argument later in the appeal.  The Johnsons may not argue that a part of the zoning code conflicts with statute while simultaneously relying on the code for their argument.  The Court noted further that the Johnsons did not make this claim before the Board and therefore forfeited the right to raise the argument on appeal.

The Johnsons argued that the structure they built was “substantially similar” to the original structure and, therefore, was not a violation of the permit.  The Court ruled that, since the Johnsons provided no legal authority for the notion that a “substantially similar” structure is allowable under a permit, it would not consider the argument.  The Court concluded that the Board did not act on an incorrect theory of law.

The Johnsons claimed that the evidence presented did not support the Board’s conclusion.  To begin its analysis, the Court acknowledged that deference is given to an agency’s decision on appeal and that “the Board is the sole judge of the weight and credibility of the evidence presented.”  The Court found that the evidence presented did indeed support the Board’s decision.  The permit issued allowed the Johnsons to elevate the existing structures and observation showed that the Johnsons instead constructed a new structure.  Johnson confirmed that he did not elevate the previously existing structure because it was ruined.  He also failed to dispute that the new structure did not include the previous porch and deck or that the Johnsons were attempting to sell the porch.  Photographs were submitted in support of all these facts.

The Johnsons further argued that the Board improperly disregarded Johnson’s testimony in which he claimed that Kleinhans already knew of his plan to modify the structure.  The Court noted that the Board is the proper judge of witnesses’ credibility and that it apparently found Kleinhans’ testimony more credible.  The Johnsons also claimed that the Board could not rely on Kleinhans’ testimony because he was never sworn in.  The Court responded by stating that the rules of evidence do not apply in administrative procedures.  Furthermore, the letter sent to the Johnsons and the record of the permit provided sufficient evidence that the Johnsons’ activities did not comply with the permit.  The Johnsons finally argued that the materials list attached to the permit served as evidence that Kleinhans authorized the new construction.  The Court pointed to Kleinhans’ testimony in which he admitted that some new construction was allowed under the permit only because “the new foundation’s footprint was slightly larger than that of the existing structures.”  Nevertheless, the primary purpose of the permit was to allow floodproofing to existing structures.  The Court rejected the argument that the Board’s decision was unsupported by the evidence.

Finally, the Johnsons purported that the Board’s decision was arbitrary, oppressive, and unreasonable.  The Johnsons first support the argument by stating that the decision was based on an incorrect theory of law and was unsupported by the evidence.  The Court already rejected those arguments in previous sections.  The Johnsons also claim that the decision prevents them from using their property and renders the property useless.  The Court noted that the Johnsons did not provide any support for these claims and that the Johnsons never asserted these claims before the Board.  They also failed to explain why the alleged uselessness of their property should allow them to violate their permit.  The Court found that the Board appropriately considered the evidence and came to a reasonable conclusion.  It affirmed the Board’s revocation of the Johnson’s permit.

Floodplains, Wisconsin courts, Zoning board of adjustment building permits, Floodplain management, Wisconsin Court of Appeals, Zoning board of adjustment

by Gary Taylor

Lang, et al., v. Linn County Board of Adjustment
(Iowa Court of Appeals, April 25, 2012)

The agricultural exemption to county zoning in Iowa – Iowa Code 335.2 – reads in part:

Except to the extent required to implement section 335.27, no ordinance adopted under this chapter applies to land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.

This case is a consolidation of two cases, both involving houses built in the late 1990s on separate parcels (one parcel of 6.52 acres, the other approximately 35 acres) that were originally part of a larger 49-acre parcel.  After addressing the standard the court uses to review decisions by boards of adjustment (“A board’s action must be upheld if supported by any competent and substantial evidence.”) the court got to the substantive facts of the case.

House 1 – The Lang House.  House 1 was occupied by the Langs, and sits on 6.52 acres.  The Langs argued their activities of living in the house and growing trees, berries, asparagus, grapes, apples, tomatoes, and farm fish, as well as participating in government farm programs, qualified as “agricultural purposes” under the statute for both the house and the land.  The court noted that the only proof the Langs offered of an agricultural purpose—defined in prior caselaw as “the art or science of cultivating the ground, harvesting of crops and rearing and management of livestock”—was their assertion through an agricultural exemption sheet on which they listed the following activities as “commercial production”:

1. Trees, 4 to 5 acres, 80% for commercial production
2. Raspberries, 0.1 acres, 10% for commercial production
3. Blackberries, 0.1 acres, 10% for commercial production
4. Asparagus, Apples, 1.0 acres, 75% for commercial production
5. Grapes, tomatoes, 0.2 acres, 15% for commercial production

The Langs did not offer any additional evidence to support “commercial production,” such as tax returns or other financial records.  They argued that the Linn County Zoning Board of Adjustment (ZBA) improperly applied a “minimum acreage test” for the land, and since the legislature removed the “primary means of livelihood test” from the statute in 1963 the only question the ZBA should be asking is whether the Langs were “engaged in agriculture.”  In response the court simply stated that it did not read the ZBA’s findings to apply a minimum acreage test. The court also

Recognizing that Iowa case law has not defined the term “farm house” for purposes of the exemption, the court cited with approval a 1997 Attorney General opinion stating that a “farm house” is one in which the occupants, “are engaged in agriculture on the land where the house [is] located.”

While we appreciate that the Langs have participated in land conservation and tree planting projects, as well as growing some fruits and vegetables, the Langs failed to demonstrate to the ZBA those activities were sufficient to prove they were using House 1 and the 6.52-acre parcel for agricultural purposes. Similarly, although the Langs’ property has some of the attributes that a small farm or small agricultural enterprise may have, the Langs simply did not demonstrate that they cultivated the ground, harvested crops, or reared and managed livestock to an extent warranting an agricultural exemption …. Without that showing, they could not substantiate that House 1 and the 6.52-acre parcel were “primarily adapted, by reason of nature and area, for use for agricultural purposes.  We recognize that small-scale agricultural production should not be discouraged. However, at some point a line has to be drawn to determine what qualifies under the statute as “agricultural use” and what is more akin to a rural acreage. The Board, after considering all of the evidence submitted by the Langs, drew that line and determined House 1 and the 6.52-acre parcel were not used for “agricultural purposes” under the statute.

House 2 – The Tenant House.  House 2 was originally intended for use by the Langs’ son, so he could assist with farm operations after completing college. When the Langs’ son did not occupy the house, the Langs decided they would rent it to other tenants.  The Tiernans (the original tenants) kept work logs of their activities related to the acreage.  The logs showed that over a 21-month period the tenants averaged at most 3.7 hours per day toward caring for the land, trees, and fish production, and 2.6 hours per day if tasks not clearly related to these activities were removed.  The court affirmed that under the statue, the key consideration is whether House 2 and the land are “primarily adapted, by reason of nature and area, for use for agricultural purposes.” The Langs argued that the ZBA applied the language in such a way that it amounted to the “primary means of livelihood” test, which the legislature removed in 1963. The court disagreed, noting that the ZBA considered, among other things, the amount of time devoted to the performance of the work duties and that the ZBA was looking at whether the tenants were “primarily engaged” in agriculture, not whether their primary livelihood was being made from agricultural activities on the land. Because the facts provided a basis for the ZBA’s decision, the court refused to overturn the decision.

Justice Tabor issued a dissenting opinion, disagreeing first with the majority’s characterization of the case as one that simply requires finding substantial evidence to support the ZBA’s decision.  She instead would look at the district court’s interpretation of the ag exemption, which the court of appeals is not required to give deference.  She viewed statements from the Linn County Zoning Administrator – that “the county has honored the exemption for years and now the property is reduced to a 6-acre tract with a pond and some berries” – as an implicit application of a minimum acreage test which the ZBA followed.  She noted that in a June 8, 2004 contempt ruling, Judge Newmeister found that Daryl Lang “carries on two agricultural purposes on the parcel he owns in Linn County. He grows trees and he has a fish farm,” and thus the focus of the ZBA’s analysis should have been “whether the Langs’ use of their property had changed since the county recognized the original forty-eight-acre tract as falling under the agricultural exemption.”  She went on to observe:

The majority decision gives a nod to smaller farms, recognizing that “small-scale agriculture should not be discouraged.” The decision goes on to say that some line drawing must be done between what qualifies as an “agricultural use” and “what is more akin to a rural acreage.” I agree that the size of the acreage is a relevant factor in determining whether the property is used for agricultural purposes, but I disagree that a board of adjustment can draw an arbitrary line that parcels of less than ten acres cannot be “primarily adapted” for agricultural purposes. Now that the conventional view of Iowa agriculture as the production of corn, soybeans, cattle, and hogs is being challenged by the emergence of Community Supported Agriculture involving smaller farms growing fruits, vegetables, and livestock, it is critical that county boards of adjustment do not employ a litmus test for the number of acres necessary to qualify for an agricultural exemption….Had the board applied the proper legal test, it is likely that the crops listed on the Langs’ agricultural exemption information sheet would have satisfied the statute’s requirement that the land be “primarily adapted” for agricultural purposes.

Agricultural Uses/Agricultural Exemption, Iowa Court of Appeals, Zoning board of adjustment agricultural exemption from county zoning, Iowa Code 335.2, Iowa Court of Appeals

by Victoria Heldt

Russell Leffel and Paula Leffel v. City of Mission Hills, City of Mission Hills Board of Zoning Appeals
(Kansas Court of Appeals, February 6, 2012)

This appeal was submitted subsequent to a remand by the same Court.   The Leffels applied for a permit in July 2006 to construct a home on an empty lot they own in the City of Mission Hills.  The city’s architectural review board (ARB) initially approved the construction plans, but the City of Mission Hills Board of Zoning Appeals (BZA) reversed the approval.  On appeal by the Leffels, the trial court found that the BZA’s reliance on public opinion amounted to an impermissible plebiscite (i.e., that it amounted to a decision reached through direct vote of the public, rather than a decision by the BZA).  It also found the BZA’s comparison of the proposed structure to surrounding structures was unreasonable, and also that the BZA conducted an improper de novo review of the ARB’s decision.  Then on the city’s appeal of the trial court’s decision, this Court of Appeals affirmed the trial court’s decision regarding the plebiscite, but rejected the court’s other grounds for reversing the BZA’s decision.  It reversed the ruling in part and remanded the case to the trial court for it to be remanded to the BZA.

On remand, the BZA discussed the possible procedures to be undertaken on reconsideration of the proposal.  The BZA’s counsel recommended only a review of the record with no new evidence submitted.  Doug McKenna, the Leffel’s counsel, objected to that and requested an opportunity to submit new evidence.  The BZA’s chairman, Tom Roszak, expressed a desire to receive input from the ARB regarding the proposal’s conformance in style and size to surrounding structures.  It defined “surrounding structures” to be an area extending 500 feet from the proposal site.  The rest of the Board agreed and the matter was sent to the ARB for further review.

The ARB received 75 photos by city staff members of the homes within a 500 foot radius and asked each board member to review them for a quasi-judicial deliberative session in June 2009.  No arguments, testimonies, or evidence would be accepted except for the 75 photographs and board members’ personal observation of the area.  In July 2009 the ARB voted that the proposal did not conform to surrounding structures and passed this recommendation to the BZA.  The BZA affirmed its previous denial of the Leffel’s building application.  The Leffels appealed, but the trial court affirmed the BZA.  Leffels then appealed once again to the Court of Appeals.

On second appeal, the Court of Appeals looked at whether the BZA’s decision to affirm the denial of the Leffel’s permit was lawful and reasonable.   The Leffel’s first major argument was that the Court should not give deference to the BZA’s decision because it was not reasonable.  The BZA applied a standard of “good faith and fair play” rather than reasonableness when making the decision.  The Court dismissed this claim because it found “no principled reason to believe that a presumption of reasonableness does not encompass a presumption that the government officials acted fairly with good faith.”  It noted that the error in language was harmless because the Court conducts an independent review of the BZA’s conduct.  The Leffels next argued against giving deference to the BZA because the BZA’s initial decision was ruled illegal by the trial court in the first appeal, so the BZA lost its presumption of reasonableness.  The Court dismissed this claim because to so hold would contradict the limited role court’s have in zoning decisions.  It cited previous Kansas caselaw which warned the Court against substituting its decisions for those of public officials in regards to zoning matters.  The Leffels further argued that because the case was presented to the BZA in documents only that the court was in as good a position as the BZA to rule on the matter.  The Court rejected that claim, pointing out that most zoning decisions are made strictly on documentary evidence.

The Leffel’s second major claim was that the BZA decision did not comply with the Court of Appeals’ orders on remand in two ways.  First, the Leffels believed that the BZA took a “new look” at the case rather than reconsider it.  The Court began its analysis by noting that, absent specific instructions, a trial court has discretion in how to implement a remand.  The same goes for the BZA in this case since it was given the duty of reconsideration.  The Leffels took issue with the fact that the ARB accepted new photographs of the surrounding area.  The Court found it to be in compliance with the remand because one of the factors the BZA used to reverse the ARB’s recommendation was that it had improperly considered the proposal’s conformity with the surrounding structures.  Consequently, it was consistent with the remand to reconsider the conformance to surrounding structures.  Additionally, the Leffel’s counsel explicitly requested the BZA to send the case back to the ARB for reconsideration during the hearing.

Next the Leffels argued that the BZA failed to comply with the Court’s mandate by not addressing the extent to which the impermissible plebiscite affected its decision.  The Court clarified that it did not ask the BZA to determine the effect of the plebiscite, but rather asked it to reconsider its opinion without it.  The BZA did this when it (and the ARB) disregarded  public opinion regarding the proposal and reconsidered the matter based on the proposed home’s conformance to surrounding structures, without listening to arguments, or taking testimony or other evidence.

The Leffel’s third and final claim contended that the reconsideration process violated due process.  The Court found that this argument was poorly constructed and that the Leffels failed to show how their due process rights were violated.  They tried to argue that the submission of the 75 photographs was new evidence that the Leffels were not given due opportunity to challenge or respond to.  The Court ruled that it was not new evidence, only reconsideration with a redefinition of scope.  Any effects of the photographs were neutralized by the fact that each ARB board member personally visited the site uninfluenced by either party.  The remainder of the Leffel’s arguments were poorly articulated and the Court dismissed them.  The Court affirmed the trial court’s decision.

Architectural review, Due Process, Kansas courts, Zoning board of adjustment Architectural review board, Kansas Court of Appeals, procedural due process, review on remand, Zoning board of adjustment

by Gary Taylor

City of Lincoln Center v. Farmway Co-op
(Kansas Court of Appeals, April 12, 2012)

Farmway owns and operates a grain elevator located within the City of Lincoln Center, a small rural farming community in central Kansas. The neighborhood surrounding the Farmway elevator is residential. In December 2008, Farmway applied for a building permit to construct a new grain storage bin adjacent to the existing facility. The new storage bin went into operation on July 14, 2009. From that day forward, nearby residents complained about the increased noise level from the drying fans and the increased grain dust and truck dust in the air. On July 27, 2009, Dawn and Melvin Harlow filed a noise complaint against Farmway. The Harlows described the increased noise levels from the new grain bin and its effect on their everyday life. Other neighbors also complained about the noise, and explained how their yard and vehicles were covered with grain dust and how the operation of the new facility had led to increased health problems.

The Kansas Department of Labor and the Kansas Department of Health and Environment made a total of four visits to the site to investigate and take measurements.  All tests for noise and dust were well within legal limits.  No citations were ever issued.  Nonetheless, on December 9, 2009, the City charged Farmway with violating City ordinances regarding excessive loud noises and nuisances. Count I of the City’s complaint alleged that between July 16, 2009, and December 3, 2009, Farmway willfully, unlawfully, and intentionally did “make, continue, maintain or cause to be made or continue an excessive, unnecessary, unreasonable or unusually loud noise which annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City of Lincoln Center, Lincoln County, Kansas, in violation of [City] ordinance #643.”  Count II alleged that Farmway did “maintain a public nuisance by act or failure to perform a legal duty intentionally causing or permitting a condition to exist which injures or endangers the public health, safety, or welfare, namely the excessive, unnecessary, unreasonable or unusually loud noise, and by causing or permitting excessive air pollution and contamination from grain dust all generated by, for or from the new concrete grain storage bin facility” in violation of ordinance #633.  Farmway was found guilty in municipal court and charged a total of $466 in fines and assessments.  Farmway appealed to district court, where the judge threw out the complaint because “the City’s ordinances provide no guidelines or constraints on those that enforce it. One must guess at the meaning of these ordinances and its application may depend upon those attempting to enforce it.”  The City appealed to the Kansas Court of Appeals.

The Court of Appeals stated that “in determining whether an ordinance is void for vagueness, two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.”  The court observed that the case fell somewhere in between a long line of cases in which the courts found the ordinances constitutionally deficient because of the complete lack of an objective standard, and another line finding ordinances constitutional because they contained expressly stated-objective standards clarifying the ordinance’s application.  The Lincoln Center ordinance’s use of the word “unreasonable” in describing one type of loud noise “appears to be an attempt at creating an objective standard”; however, the court concluded that the noise ordinance “does not give fair warning to those potentially subject to its reach because there are no objective standards imparted.”

[T]he critical piece of the Lincoln ordinance is … the fact that it only applies where the noise “either annoys, disrupts, injures or endangers” the comfort, repose, health, peace or safety of others within the City. It is the ordinance’s application language that makes it vague. There is no objective standard by which to judge whether the complainants have reasonable grounds to complain about the noise either annoying, disrupting, injuring, or endangering them. We agree with the district court that this language fails to provide an objective standard. The absence of an objective standard subjects the defendant to the particular sensibilities of the complainant, not something that is geared toward a “reasonable sensibility” standard. Consequently, the ordinance does not adequately guard against arbitrary and discriminatory enforcement….

We find there is no reason that the City cannot enact a more specific ordinance to proscribe the objectionable conduct involving dust and industrial noise and provide constitutionally acceptable objective standards for consideration of the conduct. We realize that small farm towns depend on the agricultural economy for its survival and vice versa…. However…if dust and industrial noise present a public nuisance, then it lies within the power of the City to enact an ordinance specifically prohibiting such nuisance and defining objective standards to give anyone subject to its criminal penalties fair warning for what conduct will be prosecuted.

Kansas courts, Nuisance Kansas Court of Appeals, Nuisance, void for vagueness

SF 2217 passed both houses, and was sent to the Governor Monday for his signature.  It establishes a flood mitigation program and a flood mitigation board to review proposed flood mitigation projects and authorize funding for approved projects. The bill also establishes two funding sources, a Flood Mitigation Fund and a Sales Tax Increment Fund, to provide funding for flood mitigation projects. The Flood Mitigation Fund will consist of appropriations and other moneys. The Sales Tax increment Fund will receive deposits of increased sales tax revenues from impacted areas, as calculated by the Department of Revenue. The Flood Mitigation Board will determine the funding source and amounts allocated to applicants for approved projects.

The Legislative Services Agency provides a more detailed description of the bill in its fiscal analysis, found here.

Flood mitigation or recovery, Iowa legislation 2012 legislation, flood mitigation, flood recovery

Thank you to the 248 registrants that attended this year’s Introduction to Planning and Zoning Workshops.  As always, good conversation, good questions, and good food.  Watch this blog for the announcement of next spring’s workshops, coming in December.

After a workshop-related hiatus we now return to our regularly-scheduled blogging.

Education/Conferences Introduction to Iowa Planning and Zoning for Local Officials