An interesting article predicting a “coming housing calamity” appeared on the New Urban News newsletter. Arthur Nelson, a well-respected planning professor at the University of Utah, predicts that the sales of single-family homes by aging baby boomers, rising household sizes, dropping homeownership and tighter lending standards will result in a “disaster for homebuilders.”
Month: April 2011
Proper to assess court costs against defendant who abates nuisance
by Gary Taylor
City of Des Moines v. Amerson
(Iowa Court of Appeals, April 13, 2011)
On February 5, 2009, the Des Moines city attorney’s office filed a petition alleging Amerson’s garage was structurally unsound and constituted a public nuisance. The petition asserted that the garage should be immediately emptied and the nuisance should be abated at the owner’s expense. The petition further urged that if Amerson did not abate the nuisance in the time ordered by the court that the city be authorized to enter Amerson’s property and demolish the structure.
A process server unsuccessfully tried to serve Amerson five times between February 24, 2009, and May 12, 2009. On May 26, 2009, the city asked for permission to serve Amerson by the alternative means of publication, which the court granted.
On June 9, 2009, Amerson filed a pro se pre-answer motion, asking to dismiss the action and to disqualify the judge. She alleged that the city had been harassing her for years through the use of its nuisance ordinances. On July 10, 2009, the district court denied the motion to dismiss and the motion for recusal.
On March 1, 2010, Amerson filed a second pre-answer motion to dismiss, alleging—among other things—that her garage was demolished in late June 2009. Amerson also attached to the motion an invoice sent to her by the city on February 18, 2010, demanding that she reimburse the city for $480 in charges incurred as a result of its administrative or legal action taken against her property. The charges included $200 for legal inspections; $30 for photographs; $125 for a title search; $25 for a service fee; and $100 in court costs. The invoice explained that her failure to pay the costs by March 20, 2010, would result in an assessment to Amerson’s property.
On March 3, 2010, the city voluntarily dismissed its cause of action, noting that Amerson’s property was “brought into compliance” with the municipal code. The city, however, still pursued collection of costs and fees associated with the cause of action. Amerson challenged the district court’s assessment of those costs against her.
Iowa Code 625.1 provides that costs “shall be recovered by the successful against the losing party.” Iowa Code 625.11 states that “[w]hen a plaintiff dismisses the action . . . judgment for costs may be rendered against such plaintiff . . . .” The Court of Appeals observed that the general rule in Iowa has long been that when a plaintiff voluntarily dismisses the suit, it is error to require the defendant to pay costs, but that does not apply when the plaintiff dismisses the lawsuit solely because the purpose of the suit has been achieved. In this public nuisance action, the city was the successful party because Amerson abated the nuisance by demolishing her garage “while the suit was pending and most likely because the suit was pending.” The Court of Appeals concluded that it was proper for the district court to tax Amerson with the costs associated with the court action.
Wisconsin shoreland owner satisfies unnecessary hardship standard for requested variances
by Melanie Thwing
State of Wisconsin v. City of Oconomowoc Zoning Board of Appeals
(Wisconsin Court of Appeals, March 16, 2011)
Tony Pipito, Inc owns Club Porticello Restaurant located in the shoreland zone of Silver Lake in Oconomowoc, WI. In 2008 Pipito was granted variances from the City of Oconomowoc Zoning Board of Appeals to enclose two stoops a stairwell and replace retaining walls. This also added 300 square feet to the non-lakeside entrance of the restaurant. Pipito had actually completed the work before the variances were granted. The State of Wisconsin appealed the granting of the variances to the circuit court,which affirmed the City of Oconomowoc Zoning Board of Appeals’ decision to grant to variances. The State now appeals to the Court of Appeals.
According to State v. Washington County Bd. Of Adjustment, “Area zoning… regulates density, setbacks, frontage, height, and other dimensional attributes, in order to promote uniformity of development, lot size and building configuration and size… [A]rea variances provide an increment of relief (normally small) from a physical dimensional restriction such as building height, setback, and so forth…”
The State first argues that Pipito failed to prove any unnecessary hardship, which is the standard for granting area variances in Wisconsin. According to state court caselaw in Wisconsin, the unnecessary hardship standard is
[W]hether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome….[V]ariance requests are always evaluated in light of the purpose of the zoning ordinance and the public interests at stake…. Whether the [unnecessary hardship] standard is met in individual cases depends upon a consideration of the purpose of the zoning restriction in question, its effect on the property, and the effect of a variance on the neighborhood and larger public interest. The established requirements that the hardship be unique to the property and not self-created are maintained, and the burden of proving unnecessary hardship remains on the property owner…
The Board held that without the variance an unnecessary hardship would occur. The variances for the stoops and stairwell required only a minimal footprint expansion. There was minimal detrimental effect to the lakeshore because these variances would not encroach on the shoreline. Further, they were necessary for safety and code requirements and protected visitors. Finally the updates improved the overall appearance of the community and neighborhood. The original retaining walls needed replacing to serve their purpose and to protect the lake, and the work on the retaining walls was in fact mandated by approvals given by the Department of Natural Resources and the City of Oconomowoc.
Next, the State argued that Pipito could have build a new restaurant or moved the existing structure to the northern part of the property. The Court of Appeals rejects this argument. Pipito was not seeking to relocate the restaurant. The board specifically found that if this were to happen the extensive excavation required would result in greater harm to Silver Lake than that caused by the modifications requested under the variance. The Court concluded that the board weighed both options and acted reasonably.
Next, the State argued that the board did not consider public interest in protecting the waters. Again the Court rejects this claim. The board noted that the changes were minimal in effect and moving the restaurant would be detrimental to the lake. Further, Pipito was required to take precautions, including a shoreland buffer zone, to stop any adverse impact that may result from the variances.
Finally, the State argues that the board prejudged the request in favor of Pipito because changes were made to the property prior to obtaining the variances. The Court also rejects this argument. The board simply made a decision based on the physical characteristics of the property, not the fact that Pipito acted without the variances. The decision of the circuit court is affirmed.
Legislative news
A few bills of interest to BLUZ readers continue to move through the Iowa Legislature:
SF 321, which gives the DNR the authority to regulate wastewater discharges from on-farm processing operations, was signed by the Governor on April 7. “On-farm processing operations” is defined as “any place located on a farm where the form or condition of a food commodity originating from that farm or another farm is changed or packaged for human consumption, including but not limited to a dairy, creamery, winery, distillery, cannery, bakery, or meat or poultry processor.”
SF 407, which delegates to counties the permitting and enforcement powers of the department of natural resources in relation to the construction of semipublic sewage disposal systems, has now passed both the House and Senate.
HF 655 (companion to SF 395, and successor to HF 300 which I discussed in more detail in my March 23 post) passed the House on an 83-13 vote and has been referred to a Senate Ways and Means subcommittee of Joe Bolkcom (D-Iowa City), Herman Quirmbach (D-Ames), and Brad Zaun (R-Urbandale).
US Supreme Court to hear land use conflict of interest case
The U.S. Supreme Court is scheduled to hear oral arguments on April 27 on a conflict of interest case originating in Sparks, Nevada, where a city councilman voted on a proposed casino that his campaign manager helped develop. The Nevada Ethics Commission said the councilman had a clear conflict of interest, and should have recused himself, even though the Sparks city attorney told him that casting his vote would be acceptable as long as he publicly disclosed his relationship with the developer. The case focuses on the councilman’s free speech rights.
The question as presented on the U.S. Supreme Court docket is here. A USA Today article on the case can be found here. A recent editorial from the Sparks Tribune is here.
Next pending election means next general election
by Gary Taylor
City of Bettendorf v. Scott County Auditor
(Iowa Court of Appeals, April 13, 2011)
The members of the Bettendorf Park Board are elected by the voters in the City of Bettendorf. In January 2010, a vacancy on the Board occurred due to the resignation of a member whose four-year term of office was to end December 31, 2011. The City Council filled the vacancy by appointing a new member on February 11, 2010, who was to serve until the next “pending election” as defined in Iowa Code 69.12. The City and the County Auditor disagreed over whether the next pending election was the upcoming general election in November 2010 or the next municipal election in November 2011. On April 21, 2010, the City filed a petition for a declaratory judgment seeking resolution of the disagreement. On June 5, 2010, the district court found that the use of “pending election” in section 69.12 implied elections for which Bettendorf citizens are the exclusive voters for an office, and consequently the new member was not required to stand for election until the next municipal election scheduled for November 2011. The County Auditor appealed.
The Court of Appeals disagreed with the district court’s interpretation of section 69.12. The Court of Appeals focused on section 69.12(1)(a)(1), which explains that a vacancy must be filled, “at the next pending election if it occurs…seventy-four or more days before the election, if it is a general election.” The Court concluded “a plain reading of the whole statute means a vacancy that occurs the required number of days before a general election must be filled at the next general election. If, as the City argues, the next pending election did not include general elections, this phrase [in the statute] would be meaningless.”
District court errs in requiring city council to address liquor license
by Melanie Thwing
Malin (City Administrator) and the City of Davenport v. Iowa District Court for Scott County
(Iowa Court of Appeals, February 23, 2011)
In July, 2009 Evernew Concept, L.L.C. applied for a Class C beer permit for its store, “Beer Mart,” to allow the sale of beer and wine on a carry-out only basis. The application was approved by the police and fire departments and the City’s building division. Under section 17.48.020(B)(b)(3) of Davenport’s municipal code a special use permit from the zoning board of adjustment (ZBA) is required for carry-out liquor sales, except for grocery stores, pharmacies, and restaurants. At a September 2009 ZBA meeting Mazhar stated that the business would be operated along the same lines as its previous owner, which was not a grocery store. Evernew was granted a one-year special use permit. Later that month the City Administrator Craig Malin sent a letter to Evernew “administratively rejecting” the application. He stated that a Class C beer permit was, “not allowed in the North Brady URTE corridor…”
Evernew requested that the liquor license application be placed on the next city council agenda, and when this was not granted Evernew filed a petition in district court for a temporary injunction to prevent the city from refusing to submit the application to the city council, and a writ of certiorari declaring as illegal the actions of the city administrator. The City filed a motion to dismiss the petition claiming that Evernew never submitted a valid application to the city council. An affidavit was filed with the district court by Evernew that stated that its intentions were to have more than fifty percent of profit come from the sale of food and food products. The district court granted the temporary injunction, finding Evernew likely to succeed on the merits based on its “uncontroverted affidavit [which] provides evidence to the Court that its intention to operate a grocery store on these premises more likely than not qualifies it for a carryout beer and wine permit under Iowa Code §123.129.” After more procedural wrangling, the case ended up before the Iowa Court of Appeals.
The Court of Appeals concluded that under Iowa Code § 123.32(2) and the Davenport City Code it is the city council, and not the city administrator, with the authority to act on liquor licenses. Given this the district court was correct in sustaining the writ of certiorari that found the city administrator’s actions illegal. The Court of Appeals concluded, however, that the district court erred in granting the temporary injunction effectively requiring the city council to hear Evernew’s application. Temporary injunctions are intended to preserve the status quo, and granting the injunction in this case requires the city council to address an application that may or may not have been filed properly.