Tag: Consistency with comprehensive plan

Field of Dreams site cleared for development of baseball complex and tourist attraction

Gary Taylor

by Gary Taylor

Residential and Agricultural Advisory Committee, LLC et al. v. Dyersville City Council
Iowa Supreme Court, December 9, 2016

The Dyersville City Council voted to rezone the area containing the site of the 1989 movie Field of Dreams from A-1 Agricultural to C-2 Commercial in order to facilitate the development of a  a 24-field baseball and softball complex, along with the farmhouse and original baseball field used for the movie which would continue to be maintained as a tourist attraction. Community members filed two writs of certiorari to challenge the rezoning on a number of grounds.  The District Court annulled the writs and found in favor of the city council.  This appeal followed.  The Iowa Supreme Court engaged in a 20-page recitation of the facts of the case on its way to its 44-page decision.  Only those relevant to the outcome of each challenge will be repeated here.

Quasi-judicial vs. legislative action.  The petitioners argued that the city council’s actions were quasi-judicial in nature rather than legislative, and therefore the council should have been required to conduct a more formal fact-finding proceeding and make findings of fact in support of its decision.  Quasi-judicial proceedings are also subject to greater judicial scrutiny when reviewed by an appellate court.  Petitioners relied on the Iowa Supreme Court’s decision in Sutton v. Dubuque City Council in support of their position. In contrast, the city council maintained that the action of  a legislative body in rezoning land is legislative in nature, which gives the legislative body wider latitude in the conduct of the proceedings.  Courts also give greater deference to legislative decisions made by city councils and county boards of supervisors.

In ruling on this issue the Iowa Supreme Court reviewed Sutton and several other past cases.  It recognized that in its Sutton decision the Court set forth three factors in determining whether zoning activities are quasi-judicial (versus legislative) in nature (1) [when the rezoning] occurs in response to a citizen application followed by a statutorily mandated public hearing; (2) [when] as a result of such applications, readily identifiable proponents and opponents weigh in on the process; and (3) the decision is localized in its application affecting a particular group of citizens more acutely than the public at large.   Recognizing that the Court “cited these factors with approval” in Sutton, it noted that at the time it chose not to hold that all public zoning hearings should be classified as adjudicatory.  It stated:

The Sutton Case dealt with a different situation than many of our previous zoning cases because it involved PUD zoning.  We noted the ‘quasi-judicial character of municipal rezoning is particularly evident in matters involving PUD zoning.’  We discussed the distinction between traditional rezoning and PUD zoning:

Creating zoning districts and rezoning land are legislative actions, and…trial courts are not permitted to sit as ‘super zoning boards’ and overturn a board’s legislative efforts….The [PUD] concept varies from the traditional concept of zoning classifications.  It permits a flexible approach to the regulation of land uses. Compliance must be measured against certain stated standards….Since the board was called upon to review an interpretation and application of a n ordinance…and the ordinance was not challenged per se, the board’s decision was ‘clearly quasi-judicial’.

Rather than follow Sutton, the Court found the present case to be “much more analogous” to the case of Montgomery v. Bremer County Board of Supervisors.  In Montgomery, the county Board rezoned two parcels of land from agricultural to industrial after two rezoning petitions were filed.  In Montgomery, the Court found that the zoning decision of the supervisors was “an exercise of its delegated police power,” and held that “the generally limited scope of review applicable to the case [was] to determine whether the decision by the Board to rezone [was] fairly debatable.”   In making the analogy, the Court observed:

The city council [in the present case] was acting in a legislative function in furtherance of its delegated police powers.  The council was not sitting ‘to determine adjudicative facts to decide the legal rights, privileges or duties of a particular party based on that party’s particular circumstances.  The [decision] was not undertaken to weigh the legal rights of one party (the All-Star Ballpark Heaven) versus another party (the petitioners).  The council weighed all of the information, reports, and comments available to it in order to determine whether rezoning was in the best interest of the city as a whole.

The Court held that the proper standard of review “in this case is the generally limited scope of review” utilized to “determine whether the decision…is fairly debatable.”  A decision is “fairly debatable” when “reasonable minds may differ, or where the evidence provides a basis for a fair difference of opinion as to its application to a particular property.”  If a rezoning decision is “fairly debatable” then a court will decline to substitute its judgment for that of the city council or board of supervisors.

Impartiality of the city council.  The Court noted that, while it was true that several council members viewed the rezoning and the project as an opportunity for the city, each council member attended all meetings, read reports, listened to citizens speak for and against the project, asked questions, and investigated issues and concerns.  Nothing in the record demonstrated that any council member had any conflict of interest.  Several members participated in an economic development bus trip to Des Moines to discuss the project with legislators and state officials, but the Court found that mere participation in such activities for the potential benefit of the city does not establish partiality or bias. “Rather, this is more akin to the council members upholding their public duty by performing their due diligence in determining what state aid might be available to help with the project before any formal action was taken.  The council make its decision based on what it believed was best for the community after a full and open discussion of the issues over many months.”

Decision was arbitrary, capricious, unreasonable. A decision is arbitrary, capricious, or unreasonable when it is not authorized by statute, or is unsupported by the facts.  For the reasons cited above, the Court declined to find in favor of the petitioners on these grounds.

Inconsistent with comprehensive plan.  Under Iowa Code 414.3, zoning regulations “shall be made in accordance with a comprehensive plan.”  The Court referred to its prior decision in Iowa Coal Mining Co. v. Monroe County for the principle that “compliance with the comprehensive plan requirement merely means that the zoning authorities have given ‘full consideration the problem presented, including the needs of the public, changing conditions, and the similarity of other land in the same area.'”  The Court referred to the boilerplate language found in every plan that says rezonings should be made with consideration of the unique character of the area, the suitability of the land for the proposed use, the conservation of buildings or value, and the encouragement of the most appropriate use of the land.  It noted that the Field of Dreams site is a unique parcel of land, and that the council considered the distinctiveness of the land and whether the proposed rezoning would be the best use of the site for the benefit of the community as a whole.  The city’s community builder plan also specifically addresses the importance of preserving the site in order to maintain and increase tourism.

Illegal spot zoning. To determine whether illegal spot zoning has occurred, a court must consider (1) whether the new zoning is germane to an object within the police power; (2) whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property; and (3) whether the rezoning is consistent with the comprehensive plan.  Noting again the uniqueness of the Field of Dreams site, the Court refused to find this to be a case of illegal spot zoning even though the result is an island of commercial development surrounded by agriculturally zoned properties.

200-foot buffer zone.  Under Iowa Code 414.5, if 20% or more of the landowners immediately adjacent to the property proposed to be rezoned protest the change, then the city council must approve the rezoning by a four-fifths vote.  The rezoning applicants left out of the rezoning request a 200-foot buffer zone along the three sides of the perimeter of the property  (leaving it as A-1 Agricultural).  The petitioners challenged the use of this 200-foot buffer as a way to prevent nearby property owners from objecting to the project and thereby triggering the requirement of a unanimous vote.  While the Court acknowledged that “at first blush the buffer zone can appear to be unfair,” the Court concluded that the buffer in fact provides a benefit to adjacent landowners by addressing their expressed concerns about hunting and farming operations directly adjacent to the ballfields.  The Court also noted that other courts have validated the use of buffer zones to avoid supermajority requirements.  Regardless, even if the 200-foot buffer was improper, the rezoning was adopted by 4-1 vote of the city council.

Incorrect legal description.  While the notice of the original ordinance (Ordinance 770) contained errors in the legal description, the council corrected the legal description in the ordinance that ultimately rezoned the property (Ordinance 777).  No new notices were published, however, for Ordinance 777.  The Court does not require complete accuracy when providing notice.  Neither Iowa Code nor the city ordinances require the publication of a complete legal description.  The purpose of the notice requirement is to give the public reasonable notice of the pending action.  The public was well aware of the ongoing proceedings, and no one was confused or misled by the inaccuracy of the legal description.

Equal Protection.  Petitioners argued that all neighboring landowners were similarly situated, yet the 3-sided 200-foot buffer prevented those neighbors along the buffer from exercising the same right to object as the neighbors along the side of the property without the buffer.  The Court found that the council’s decision met the rational basis test required by the Equal Protection clause in this case.  The buffers, as described above, served a legitimate purpose of protecting the neighboring properties on the three sides.

Due Process.  Petitioners and the public in general were given adequate notice.  Further, they were heard in multiple public hearings.  All community members wishing to speak were allowed to do so.

Based on all preceding points, the Iowa Supreme Court affirmed the rezoning of the Field of Dreams property.

Comprehensive Plan, Conflict of interests and/or bias, Due Process, Equal Protection claims, Iowa Supreme Court, Notice, Quasi-judicial land use decisions, Rezoning, Spot Zoning , , , , , ,
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Rezoning land along interstate to industrial was not impermissible spot zoning

Gary Taylor

by Gary Taylor

Dokter v. Burleigh County Board of County Commissioners
North Dakota Supreme Court, July 2, 2015

Dale Pahlke requested rezoning of a 311-acre tract of land in Menoken Township from agricultural to industrial use.  Pahlke’s land is located on the north side of Interstate 94 and on the west side of 145th Street NE, about 1 mile west of the Menoken interchange and just north of an interstate rest area. Except for the interstate corridor, the land is surrounded by property zoned for agricultural use. Mr. Pahlke intended to subdivide his land into five to ten acre lots. In 2009, the Dockters purchased land directly north of Pahlke’s land, and they operate a certified organic farm on their land. The Dockters opposed Pahlke’s application, claiming industrial use of the adjacent land could contaminate their fields and result in loss of certification of their organic farm.

The matter came before the Burleigh County Planning Commission.  The Burleigh County planning staff recommended denial of the application, and included in its report the following conclusions (among others):

  • The proposed zoning change is outside the area covered by the Bismarck-Mandan Regional Future Land Use Plan.
  • The proposed zoning change is not compatible with adjacent land uses. Adjacent land uses include agriculture and related agriculture uses to the north, south, east and west.
  • The proposed zoning change may adversely affect property in the vicinity. In particular, the proposed industrial land use may have an adverse impact on the surrounding agriculture-related uses.
  • The proposed zoning change is not consistent with the master plan, other adopted plans, policies and accepted planning practice.

Despite this recommendation the Planning Commission ultimately recommended approval of the application subject to conditions.  In its findings of fact the Planning Commission concluded (among other things):

  • Burleigh County is in need of large blocks of industrial-zoned property in order to promote reasonable economic growth.
  • The property is located adjacent to I-94, and is less than one mile west by frontage road to the Menoken interchange.
  • A large electrical transmission line bisects the property, making the property undesirable for residential or commercial use, which militates in favor of industrial use.
  • Menoken Township has industrial zoned property off the Menoken exit; all of the 64 acres of available industrial-zoned property located within Burleigh County’s zoning jurisdiction are located in Menoken Township.
  • The concerns of surrounding landowners with regard to traffic, noise, pollution, etc. will still be addressed in the subdivision and platting process….
  • The zoning change is not inconsistent with Burleigh County’s Comprehensive Plan [citing policies in the plan that favor locating industrial uses convenient to transportation facilities, and favor making adequate land supplies available for industrial use].

After initially voting 3-2 to reject the recommendation of the Planning Commission, the County Board of Commissioners reconsidered and voted to approve the rezoning request.  The Dockers appealed to district court but lost, then initiated this appeal to the North Dakota Supreme Court

The Dockters argue the County Commissioners’ decision to rezone the land constituted impermissible spot zoning. They claimed spot zoning cannot be used to favor one landowner or to offer special privileges not enjoyed by neighboring property. They argue characteristics of spot zoning were established in this case, because the rezoned industrial land is different from prevailing agricultural uses in the area, the rezoned land constitutes a small geographical area compared to the surrounding 22,241 acres of land zoned for agricultural use in Menoken Township, the rezoned land benefits one owner and not the greater community, and the rezoned use is inconsistent with Burleigh County’s comprehensive land use plan.

The North Dakota Supreme Court disagreed.  Although Pahlke may individually benefit from the zoning change, there was evidence the County Commissioners’ decision benefited Burleigh County as a whole. Tthe director of business development for the Bismarck-Mandan Development Association testified in district court that Burleigh County needed large blocks of property for affordable industrial development and the size of this parcel and its proximity to the interstate could help satisfy that need and bolster economic development. The record supports economic benefits to the community as a whole for the general welfare of the community. “Moreover, this tract of land consists of 311 acres, which was proposed to be divided into five to ten acre lots if the zoning application was approved, which also militates against a claim that the rezoning change involves an individual lot singled out for discrimination, or different treatment.”  The Court concluded that a reasonable basis for the County Commissioners’ decision existed, and that the rezoning did not constitute illegal spot zoning.

The Dockters also argued that the County Commissioners’ decision was inconsistent with the Burleigh County land use plan. The Court, however, cited the same land use plan goals identified by the Planning commission:  “promot[ing] the quality growth of manufacturing and industrial uses,” and  “encourag[ing] industry to locate in planned manufacturing and industrial parks” which “should be located convenient to transportation facilities.” The Court found it “obvious that to meet those goals some land needs to be rezoned to industrial uses.”

The district court’s decision in favor of the County Commissioners was affirmed.

 

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Denial of conditional use permit not unreasonable. Concurring opinion suggests consideration of the comprehensive plan in CUP cases misplaced

hdankbar

by Gary Taylor and Hannah Dankbar

RDNT, LLC v City of Bloomington
Minnesota Supreme Court, March 18, 2015

RDNT owns Martin Luther Care Campus in Bloomington. The campus consists of two buildings that offer a variety of services, including assisted living, memory care, skilled nursing, adult day care and transitional care. In September 2011 RDNT applied for a conditional use permit from the City of Bloomington to add a third building to the campus. The additional building would result in a 26 percent increase in the number of rooms on the campus, an 8 percent increase in employees, and an overall increase in building square footage on the campus of 62 percent. People in the community opposed the permit because they worried about an increase in traffic.

The Planning Commission unanimously voted to recommend denial of the permit.  It concluded that the proposed addition would violate the comprehensive plan in three ways: (1) it is not adjacent to an arterial or collector street; (2) it is not in close proximity to transit, amenities, and services; and (3) it would not preserve the character of the surrounding low density, single family neighborhood. The Planning Commission also determined that the proposed use violated the City’s conditional use permit ordinance because it would be injurious to the surrounding neighborhood through increased traffic, density and design of the building. This conclusion was based on estimated increases in traffic and on the size, density and design of the proposed building.

The City Council met to consider the recommendations of the Planning Commission.  The Council listened to the neighboring landowners that spoke both for and against the proposal, and also reviewed traffic studies from two different experts estimating the future traffic volume that would be generated by the proposed expansion.  Ultimately the Council voted four to three to deny the application for the permit, finding that the project would conflict with different comprehensive plan provisions, and also that the project would render the Campus “incompatible with the scale and character of the surrounding low density, single family neighborhood” in violation of the conditional use permit ordinance.

RDNT filed a complaint in district court.  The district court ruled for RDNT, finding that the Council “misapplied certain standards, misrepresented the impact of certain studies, and appeared to ignore evidence to the contrary.”  On appeal, however, the Court of Appeals sided with the City, holding that the City properly exercised its discretion.  RDNT then appealed to the Supreme Court.

The Supreme Court did not address the issues related to compatibility of the proposal with the comprehensive plan, instead limiting its review to the claim that the proposed use would violate the conditional use ordinance.  Noting that a court “will reverse a governing body’s decision regarding a conditional use permit application if the governing body acted unreasonably, arbitrarily, or capriciously” the Supreme Court broke this inquiry down into two parts:  (1) whether the reasons provided by the city were legally sufficient and, if so, (2) whether the reasons had a factual basis in the record.

Criteria 5 of the conditional use permit ordinance requires the Council to make a finding that “the proposed use will not be injurious to the surrounding neighborhood or otherwise harm the public health, safety and welfare.”  Although noting that this standard is imprecise, the Court recognized that it has long held that cities have the right to deny conditional uses “if the proposed use endangers the public health or safety or the general welfare of the area affected or the community as a whole.”  Thus the Court concluded that the ordinance standard is legally sufficient.

Regarding the second step, neighbors gave concrete testimony about how the increase in traffic would damage their quality of life. Bloomington relied on multiple traffic studies, data from their City Engineer and detailed factual complaints from residents to determine that this project will injure public health and welfare. The City determined that street capacity alone was not dispositive as to whether an increase in traffic would injure the neighborhood or otherwise harm the public health, safety, and welfare. “The fact that a street could physically handle more traffic does not determine whether the neighborhood or the public could handle more traffic. To paraphrase one of the City’s planners: this is not a capacity issue, it is a livability issue.” The Court, therefore, could not conclude that the City acted unreasonably, arbitrarily, or capriciously.

Based on the record, Bloomington did not act unreasonably, arbitrarily or capriciously when it denied the permit.

Concurring Opinion

Justice Anderson agreed with the majority’s conclusion, but addressed the “alarming argument” advanced by the City “that the City may properly deny a conditional use permit when the proposed use is in conflict with its comprehensive plan.”   Justice Anderson believes there is “significant uncertainty in our statutory framework and confusion in our case law concerning the role of comprehensive plans,” and that “constitutional implications [lurk] behind the insistence of the City that a conditional use permit may be denied for any comprehensive plan violation.”  After a lengthy historical review of caselaw and legislative amendments to Minnesota’s planning and zoning statutes, Justice Anderson observes that both the courts and legislature have “made hash out of the intersection of comprehensive planning, zoning and property rights law.”  He suggests that “comprehensive plans are too long and too general (too “comprehensive”) to provide a reasonable standard” for denying a conditional use permit. Additionally, a conditional use ordinance does not create a “standard” by requiring compliance with the entire comprehensive plan as a prerequisite to obtaining a permit “because a comprehensive plan does not provide sufficiently specific standards to measure compliance.”  Finally, Justice Anderson finds it “difficult to envision … how any applicant could comply with the entire comprehensive plan.”  He points to several goals in the City’s plan that lend support to RDNT’s project, but believes that “the City, looking for any port in the storm to deny the RDNT application, now weighs these goals as less important than other goals.” In his opinion this “demonstrates the poor standard the comprehensive plan provides and the inherent arbitrariness that exists when the plan is relied upon to make these types of decisions.”

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Appellant in rezoning denial cannot turn appeal into inverse condemnation action

Gary Taylor

by Gary Taylor

Dahm v. Stark County Board of County Commissioners
(North Dakota Supreme Court, December 19, 2013)

Richard Dahm submitted an application to the County Board for a rezoning to change his property designation from agricultural to residential. Dahm also sought approval of a preliminary plat called Duck Creek Estates, a 99 lot residential subdivision to “provide a rural living environment in a quasi-urban setting . . . .” The land is two miles west of the Dickinson city limits, and located in between Interstate-94 to the north and Highway 10 to the south. The property is adjacent to a previously platted subdivision called Maryville Subdivision.  Two public hearings were held before the Planning and Zoning Commission. At the first hearing, the city/county planner recommended denial based on several alleged deficiencies, including: Dahm did not specify which residential district he wanted to rezone his property to; there was no contract with adjacent land owners ensuring access to Highway 10; the application did not indicate whether road and access widths would meet or exceed Stark County regulations; the application did not indicate what type of bridge would overpass Duck Creek; the application did not delineate the location of wetlands or flood plains or include a flood plain analysis and environmental study; development could result in “pinching” the water flow of Duck Creek; and no potable water was available at the site. The planner also found the application was inconsistent with the Stark County Comprehensive Plan.

Rather than making a formal recommendation to the County Board, the Zoning Commission continued the hearing to allow Dahm to revise his application. Dahm submitted additional information, including a letter responding to the deficiencies, a development narrative, an application package addendum, and proposed zoning maps. The Southwestern District Health Unit also submitted a letter stating that Dahm’s plans for a sewer system were satisfactory. Prior to the second public hearing, the city/county planner again recommended denying Dahm’s application based on several deficiencies, including: the lack of a traffic impact analysis; road access did not meet Stark County standards; the application did not include the location of wetlands and flood plains; the absence of a flood plain elevation study to ascertain whether the project met the requirements of the National Flood Insurance Program and state law; the absence of a field wetland delineation for use during U.S. Army Corps of Engineers 404 Permit Process; no potable water; and that the application was inconsistent with the Stark County Comprehensive Plan.

At the second public hearing, Dahm’s attorney stated that an adjacent landowner agreed to provide highway access, on the condition that the adjacent owner’s property could also be re-zoned. Dahm’s attorney also claimed traffic density would be about 925 vehicles per day. Members of the neighboring Maryville subdivision voiced their opposition to the application based on concern over traffic and dust control. The planner also spoke in opposition to the application. Members of the Planning and Zoning Commission reiterated their trepidation about traffic access points, increased traffic density, and the lack of a study concerning the wetlands and flood plains. Based on these concerns, the Zoning Commission voted 8-0 to recommend a denial of the zoning amendment request.  The County Board adopted the recommendation of the Zoning Commission and denied Dahm’s request by a vote of 5-0. In voting to deny the application the County Board also included a provision that Dahm could not appear before the County Board for six months.

Dahm appealed the County Board’s decision to the district court and also sought to introduce evidence of similar zoning requests that had been previously approved by the County Board. The court denied Dahm’s motion to submit additional evidence and affirmed the County Board’s decision to deny the application for zoning change.  Dahm appealed to the North Dakota Supreme Court.

The Court first noted that in framing its zoning decisions, the Zoning Committee and County Board looked to the Stark County Comprehensive Plan, a growth management policy amended in 2010 based on the county’s rapid growth in the agricultural and energy sectors. In its official recommendation, the Zoning Commission stated “there continues to be concerns with density, traffic, and sewer and water issues for residential development of the property.” Additionally, the Zoning Commission determined the application was inconsistent with at least four goals of the Comprehensive Plan related to compatibility of environmental characteristics of the site, adequacy of sewer and water services, the preservation of open spaces and natural resources, and the prohibition against locating development away from paved roads. The Court concluded that the procedure followed by the county “characterizes an exercise of discretion” that is “the product of a rational mental process by which the facts and the law relied upon are considered together . . . .”

Dahm also argued that when a subdivision plat addresses all issues listed in a county’s subdivision regulations it becomes the “mandatory duty” of the zoning authority to approve a subdivision plat.  The Court disagreed, stating that “The board shall consider all other relevant facts and determine whether the public interest will be served by the subdivision. . . . If it finds that the proposed plat does not make appropriate provisions, or that the public use and interest will not be served . . . then the board of county commissioners shall disapprove the proposed plat.”  The Zoning Commission and the County Board did take into account such factors as open spaces, drainage, streets, water supplies, and waste disposal, in addition to other considerations, in denying the application. Because it found Dahm’s application was at odds with the Comprehensive Plan, it was under no duty to approve the request.

Finally, Dahm argued the six-month restriction from appearing before the County Board was not only arbitrary, capricious, and unreasonable, it was also unconstitutional because a new ordinance (increasing minimum lot sizes from 7,000 square feet to 5 acres) was passed during the six-month prohibition period.  Because Dahm purchased the property in reliance on the original ordinance and subdivision regulations, the County Board’s denial deprived Dahm of all reasonable use of the property.  The Court stated that the moving party in a denial of a change in zoning request cannot turn his appeal into an inverse condemnation action, and declined to address Dahm’s claim of an unconstitutional taking of his property. It found that the decision to implement a six-month appearance restriction was also not arbitrary, capricious, or unreasonable.  The Board noted that Dahm had presented the Duck Creek Estates project three months in a row without adequately resolving the issues of roads, sewage, water, and population density. As the district court reasoned, “the time and effort expended by the Stark County Zoning Board, the City and County Planner, and by the Stark County Commission persuades the Court that there was no violation of Stark County’s authority and obligation to regulate land use . . . by their decision to impose the six month prohibition.” Given the repeated attempts to re-zone and the failure to make the requisite adjustments, it was not unreasonable for the County Board to implement a six-month wait period.

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