Home > Conditional Uses/Special Uses, Iowa Court of Appeals, Procedural Issues, Telecommunications towers, Zoning amendments > Council is proper party in claim of illegality of zoning amendment

Council is proper party in claim of illegality of zoning amendment

October 19th, 2009

by Gary Taylor

Rude v. City of Mapleton Board of Adjustment
(Iowa Court of Appeals, May 29, 2009)

Claim that zoning amendment is inconsistent with comprehensive plan must be brought against city council within 30 days of council decision.

In 2006 Long Lines Wireless applied for a special use permit to construct a cell tower on land it intended to purchase in Mapleton.  A public hearing was held by the Mapleton board of adjustment, at which Ronald Rude voiced objections, stating that the city zoning ordinance did not permit cell towers.  Long Lines withdrew its application.  The planning and zoning commission later recommended text changes to the ordinance to accommodate cell towers, and in June 2007 the city council adopted those changes.  Long Lines resubmitted its application and in November 2007 the board of adjustment issued a special use permit.  Long Lines completed construction of its tower in December 2007.  In the same month, Rude filed a writ of certiorari claiming the board of adjustment’s actions in granting the special use permit were illegal.  The district court dismissed the claim, and Rude appealed.

Rude raised two objections: (1) that the zoning amendments were adopted by the city council without consideration of the city’s comprehensive plan, and (2) that the special use permit granted Long Lines permission to violate the setback and frontage provisions of the zoning ordinance.

The Court of Appeals dispensed with Rude’s first claim by noting that Rude did not raise the issue at the special use permit hearing before the board of adjustment.  “An issue must first be presented to the agency [in this case, the board of adjustment] in order to be preserved for appellate review.”  The court also noted that the lawsuit was brought against the board of adjustment, not the city council.  The council was the legislative body that amended the ordinance.  To attack the legality of the ordinance it would have been necessary for Rude to file his action within 30 days of the city council’s adoption of the zoning ordinance amendments.

On the second claim, the Court of Appeals found that Rude was misinterpreting the city’s zoning ordinance with regard to the application of the setback regulations.  The amendments adopted in June 2007 were specifically applicable to cell towers, and the setback provisions in those amendments clearly supplanted those to be applied to other uses.

The Court of Appeals affirmed the district court’s decision in favor of the city.

Conditional Uses/Special Uses, Iowa Court of Appeals, Procedural Issues, Telecommunications towers, Zoning amendments , , , , ,

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