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A cul de sac is a street within the term’s ordinary meaning

February 25th, 2010

by Gary Taylor

Allamakee County v. Schaumberg Living Trust
(Iowa Court of Appeals, February 24, 2010)

Schaumberg owns four lots in Harpers Highland Subdivision located in Allamakee County. The property is located at the intersection of Harpers Highland Lane and Chipmunk Lane.  The zoning district applicable to Harpers Highland Subdivision requires any residence to have a side-yard setback of ten feet, unless it is situated on a corner lot, in which case the side-yard setback increases to thirty feet.

During the summer of 2007, the county zoning administrator met with Schaumberg to discuss his plans for constructing a home on his property. After some disagreement between the two about the applicable setback requirements, the zoning administrator discussed the setback requirements with the county attorney.  They determined that Schaumberg’s property was a corner lot that required a front-yard setback of forty feet (abutting Harpers Highland Lane) and a side-yard setback of thirty feet (abutting Chipmunk Lane). As Schaumberg began to fill out the necessary paperwork for a building and septic permit the zoning administrator informed Schaumberg of the setback requirements. The building permit application was filled out to state the setback requirements, including stating the lot was a corner lot and the side-yard setback was thirty feet. Schaumberg signed the application, but Moody did not sign. The following month, Schaumberg began construction of his house, which did not comply with the side-yard setback requirements.  The zoning administrator sent Schaumberg a violation notice; however Schaumberg ignored it and continued construction.  Five months later the county filed an action in district court to stop construction and compel removal of any portion of the built structure that violated the zoning ordinance.  The next day Schaumberg filed an appeal with the Allamakee County board of adjustment over the zoning administrator’s interpretation of the applicability of the side-yard setback requirements, and alternatively for a variance from that requirement.  The Board of adjustment denied both requests. Schaumberg appealed to the district court, but the district court sided with the board of adjustment.  Schaumberg appealed. 

Schaumberg made three arguments at the board of adjustment, district court and Court of Appeals:  (1) the zoning ordinance did not apply to his property because his property was located on private roads; (2) Chipmunk Lane is a cul de sac, not a thoroughfare, and consequently his lot is not a corner lot; and (3) the zoning ordinance does not define “thoroughfare” and as a result is vague and unconstitutional.  Citing the language in Iowa Code 335.3 that county zoning applies to “land and structures located within the county but lying outside of the corporate limits of any city,” and noting that nothing in the code limits the applicability of zoning to land along public streets, the court dispensed with the first argument.  The Court of Appeals also sided with the county on Schaumberg’s second point, noting language in the county zoning ordinance that define streets as “thoroughfares” that provide “the principal means of access to the abutting property.”  The record is clear that Harpers Highland Lane and Chipmunk Lane provide the principal means of access to the abutting properties and therefore, are streets under the ordinance.  Finally the Court of Appeals dispensed with Schaumberg’s final issue by noting that any reasonable construction of the zoning ordinance would include cul de sacs within the broader definition of “streets.”

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