Tag: Spot Zoning

Local ordinance requiring conditional use permit for business selling alcohol not preempted by state liquor licensing law

Gary Taylor

by Gary Taylor

Lime Lounge, LLC v. City of Des Moines

Iowa Court of Appeals, February 8, 2023

Lime Lounge owns and operates a bar in the East Village of Des Moines. To sell alcoholic beverages in Iowa an establishment must obtain a liquor control license from the state Alcoholic Beverages Division (ABD). Among other requirements, the applicant for the license must first file the application with the local authority – in this case the city of Des Moines – for its approval. If the local authority disapproves of the application, the applicant has the ability to appeal the decision to the administrator of the ABD.

To sell alcoholic beverages in Des Moines an establishment must, among other things, be granted a conditional use permit (CUP), which places different requirements on establishments than the liquor control license. Depending on the type of business it is engaged in, a business is required to meet standards related to noise, litter, hours of operation, and others. The city will not consider a liquor control license application until the CUP is approved.

Lime Lounge obtained a CUP from the Des Moines Zoning Board of Adjustment (ZBA) and had their liquor control license approved in 2011. In 2015, the ZBA amended Lime Lounge’s CUP after multiple noise complaints. The ZBA revoked Lime Lounge’s CUP in March 2016. Lime Lounge challenged the revocation, but the revocation was upheld on appeal. On May 14, 2019, Des Moines filed a complaint with the ABD to revoke Lime Lounge’s state liquor license on the basis of the establishment’s failure to comply with local ordinances. Lime Lounge resisted the city’s complaint by filing a temporary injunction, but the district court dismissed Lime Lounge’s suit. Lime Lounge appealed.

Preemption. Lime Lounge’s first argument was that the Des Moines zoning code requirement of a CUP for an establishment selling liquor was preempted by the state alcoholic beverage control law found in chapter 123 of the Iowa Code because the zoning code requires an additional permit and fees in order to obtain a state liquor license. Lime Lounge asserted that the doctrine of express preemption, which “applies where the legislature has specifically prohibited local action in a given area,” rendered the Des Moines ordinance illegal.

Courts will look to the “specific language used by the legislature” to determine whether express preemption applies. Although Iowa Code section 123.37(1) provides, “The power to establish licenses and permits and levy taxes as imposed in this chapter is vested exclusively with the state. Unless specifically provided, a local authority shall not require the obtaining of a special license or permit for the sale of alcoholic beverages at any establishment….” the Court of Appeals determined that this did not apply to the city’s CUP permitting scheme because the zoning provisions related to the use of land. It agreed with the conclusion of the district court that “[t]he ordinance does not require a permit for the sale of alcohol, it requires a permit to use certain premises for the sale of alcohol. It’s a land-use regulation, not a regulation on the sale of alcohol. Thus, the requirement to obtain a CUP is not a permit requirement ‘for the sale of alcoholic beverages'” as contemplated by chapter 123. The Court of Appeals further observed that chapter 123 provides:

Local authorities may adopt ordinances or regulations for the location of the premises of liquor control licensed and retail wine or beer permitted establishments and local authorities may adopt ordinances, not in conflict with this chapter and that do not diminish the hours during which alcoholic beverages may be sold or consumed at retail, governing any other activities or matters which may affect the retail sale and consumption of alcoholic beverages and the health, welfare and morals of the community involved.

Iowa Code 123.39(2)

Equal Protection. Lime Lounge also asserted the the Des Moines zoning ordinance violates the Equal Protection clause of the Iowa and United State Constitutions, which has been interpreted by courts to direct that “all persons similarly situated should be treated alike.” Whether this ideal has been met in the context of economic legislation is determined through a “rational basis” test. If the regulation is “rationally related to a legitimate governmental purpose” then the regulation will be deemed valid.

Lime Lounge alleged the varied requirements—particularly the necessity of obtaining a CUP and the fees necessary to do so—imposed on different establishments such as restaurants, bars, and retail establishments are arbitrary, and that the municipal ordinance allows the ZBA to “impose virtually any condition which it can contemplate—and, more onerously—on an individualized basis.”

The court disagreed with both allegations. The city has a legitimate purpose in ensuring the health, welfare, and safety of the community. The distinctions drawn in the ordinance between bars, restaurants and other retail establishments is rationally related to that purpose because each has different characteristics of operation. For example, bars tend to operate later in the evening than restaurants, create more noise from music and patrons, and have increased law enforcement requirements. Requiring additional permitting for these and other businesses that are more likely to exhibit greater nuisance behaviors is rationally related to protecting the community.

The court also disagreed that the ordinance allows the ZBA “unfettered discretion” in imposing permitting restrictions. The ZBA is in fact constrained by criteria found in the ordinance for imposing conditions related to public health and safety, noise, traffic congestion, and nuisance prevention. The East Village of Des Moines is a mixed-use neighborhood, containing both commercial and residential buildings. Tailoring certain zoning restrictions related to noise, congestion, and other nuisance behavior to the specific circumstances of the area is rationally related to promoting the community’s welfare.

Spot zoning. Finally Lime Lounge asserted that the code section amounted to illegal spot zoning, but the court dismissed that assertion by noting the similarities between the city’s treatment of Lime Lounge and those of several of its East Village contemporaries. Furthermore, the noise restrictions and other directives limiting nuisance behavior fall squarely within the city’s police power.

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Solar debate heats up in Linn County

Gary Taylor

The Linn County Board of Supervisors voted in a moratorium on accepting rezoning applications for the county’s Renewable Energy Overlay District to allow planning staff to study the ordinance in light of recent applications. The moratorium is in place initially for three months, but can be extended to a maximum of twelve months.

On a related note, residents near two utility-scale solar projects are suing the Linn County supervisors, challenging the supervisors’ zoning decision that will allow construction of the facilities. The residents argue that the rezonings under the Renewable Energy Overlay District constitute spot zoning.

What is spot zoning? Well, since you asked you can click on the drop down “Categories” menu to the right and find cases from Iowa and beyond that address spot zoning.

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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.

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Comprehensive plan amendments met Idaho statutory requirement for an “analysis” of power plant and utility locations

vaagea

by Andrea Vaage and Gary Taylor

Burlile v. Payette Board of County Commissioners
Idaho Supreme Court, September 25, 2015

Alternate Energy Holdings Inc. (AEHI) became interested in constructing a nuclear power plant in Payette County, Idaho in 2009. The property the company was targeting was zoned agricultural. AEHI petitioned the County to revise the comprehensive plan so that the property could be zoned industrial. AEHI also submitted a Rezone and Development Agreement Application to the Payette County Planning and Zoning Commission. The County accepted the petition to amend the comprehensive plan and included additional language relating to energy producers looking to site facilities in the County. After the development agreement was made public in various forms, the County held a public hearing in December 2010 before the Planning and Zoning Commission (PZC), during which the PZC recommended approval of the application for the nuclear power plant.

A neighboring landowner, H-Hook, and others appealed the decision to the Board of Commissioners (Board). A revision to the development agreement was made public and the Board received additional testimony from the public. In August 2011, the Board approved the decision of the PZC to approve the development application. H-Hook and other parties sought judicial review. H-Hook argued that (1) the comprehensive plan was invalid because it is missing components addressing power plant siting and power transmission corridors as required by Idaho Code section 67-6508; (2) the rezone was illegal spot zoning; and (3) the notice and hearing procedures employed by the County were in violation of due process. The district court rejected all arguments. H-Hook appealed.

Invalid Comprehensive Plan.  H-Hook argued the comprehensive plan was not valid because it did not include sufficient language regarding siting of a nuclear power plant. Idaho Code 67-6508(h) requires a comprehensive plan include “an analysis showing general plans for sewage, drainage, power plant sites, utility transmission corridors…”  H-Hook focused on the requirement for an “analysis” and argued that the comprehensive plan should contain a certain measure of detailed consideration of the subject. The Court, however, found that the requirement of a “general” plan diminishes the degree of required “analysis.” Reading the “plain, obvious, and rational meaning” of the terms “general” and “analysis,” the Court concluded that the comprehensive plan, as amended, met Idaho Code 67-6508(h).  It found that more detailed language would be difficult for a county to adopt and implement, due to the complicated and changing nature of energy facilities.

Illegal Spot Zoning.  H-Hook argued that the rezone from agricultural to industrial was an impermissible “type one” spot zoning.  Citing prior caselaw, the Court stated that a claim of “type one” spot zoning “is essentially an argument that the change in zoning is not in accord with the comprehensive plan.”  The Court determined that the claim of “type one” spot zoning failed because the amendment to the comprehensive plan designated the property as Industrial prior to the rezoning to Industrial.

“Type two” spot zoning in Idaho occurs when a parcel is singled out for treatment different from the uses permitted in the rest of the zoning district for the benefit of an individual property owner.  The Court disagreed.  The Board concluded that the industrial use designation “encompasses existing industrial operations, such as CAFOs and the Clay Peak Landfill” within a few hundred feet of the site in question.  The Board’s factual determination is entitled to deference when supported by substantial and competent evidence, and the Court determined that this standard was met.

Due Process Violation.  H-Hook argued that it was not given adequate time to review revisions to the development agreement; however, the County made the application available to the public in physical form and on a website well before the hearing before the PZC in December 2010. The application with revisions was made public eight days before the hearing. When the issue went before the Board, the County provided a color-coded version of the revision to the public eleven days before that meeting. These efforts gave H-Hook adequate time to review the development agreement.  No due process violation occurred.

The decision of the district court was affirmed.

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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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Monona County’s rezoning of property along Loess Hills Scenic Byway did not constitute illegal spot zoning

Gary Taylor

by Gary Taylor

Woodward and Johnson v. Monona County Board of Supervisors
(Iowa Court of Appeals, November 15, 2012)

Cory Bumann purchased 2.8 acres of land in rural Monona County with the intent of constructing a bar and restaurant to serve tourist traffic coming to enjoy the Loess Hills. The land is located at the corner of the paved county road L-20 – which is a segment of the Loess Hills Scenic Byway – and the gravel road 153rd Street. Across county road L-20 (approximately 1/2- to 3/4-mile away), but not accessible directly by L-20, is the Timber Ridge Winery and Vineyard, which is owned by other members of the Bumann family. Timber Ridge does not have a bar or restaurant, but serves breakfast for approximately 400 guests on the weekends in the summer.  Timber Ridge also bike and ATV trails, and a campground.  The land that is the subject of this litigation is connected to Timber Ridge, across L-20, by a dirt path.

Bumann requested rezoning of the land in question from agriculture to a classification that would allow for a bar and a restaurant.  The county planning and zoning commission was unable to reach a recommendation, and forwarded a “split recommendation” to the board of supervisors.  on May 25, 2010 the board of supervisors approved the rezoning request.  Woodward and Johnston (plaintiffs), area landowners, challenged the decision as a case of illegal spot zoning.  The district court agreed and invalidated the rezoning.  Monona County appealed the decision.

After noting that a board of supervisor’s decision regarding a rezoning carries with it a strong presumption of validity, the Court of Appeals reviewed the relevant Iowa caselaw pertaining to spot zoning:

Spot zoning occurs when an ordinance creates a small island of property with restrictions on its use that are different from those imposed on surrounding property…. While spot zoning is not favored, it is not automatically illegal…. Spot zoning is valid if it passes a three-pronged test.  The court must determine (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.

The district court found that the rezoning decision passed the first and third prongs, but failed the second.  The Court of Appeals confined its review to the second prong; plaintiffs did not challenge the district court’s conclusions with regard to the other two.

The Court of Appeals noted that to determine whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property it must look at several factors:

Size of spot zoned and uses of surrounding property.   The county zoning administrator testified that the closest commercially zoned property was two to five miles away. The land surrounding the property on all sides was zoned for agriculture, but Timber Ridge had a special use permit to allow recreational uses such as a private campground and dirt-bike riding.  Plaintiffs land was farmland and timberland, but the county comprehensive plan did not identify the Loess Hills region as prime agricultural land.  One county supervisor testified that Timber Ridge at one time had a restaurant and bar that has since closed down.  Another supervisor testified that he considered the rezoned property and Timber Ridge to be similar in that they were gathering places.

Changing conditions of the area.  It was unclear from evidence at trial whether the extensive tourism promotion of the Loess Hills region was a recent occurrence, but the comprehensive plan specifically designating the Loess Hills as such was adopted in 2007.  L-20 had been paved for 20-25 years, and Timber ridge had been located in the area for much longer than that.

Uses to which subject property has been put.  Plaintiffs testified that the land in question previously had been used for row crops, but other testimony contradicted that.  It was recognized that the land was not prime agricultural land, but also that the site would have to be leveled for a bar to be constructed.

Suitability and adaptability for various uses.  County supervisors testified that the property’s location along the Scenic Byway on a paved road, its proximity to Timber Ridge, and favoring a location that was not prime agricultural land made this property suitable for a restaurant.

The district court found that the second prong was not satisfied because the paving of L-20 and the proximity to Timber Ridge were not recent occurrences, and that any land bordering L-20 would be equally suited for a restaurant and bar; however, the Court of Appeals pointed out that the district court is only to look to see if there has been a sufficient showing to reasonably support the board of supervisor’s judgment. The court is not to supersede the county’s discretion just because the court would reach a different conclusion.  Finding that there was a reasonable basis to support the county’s rezoning decision, the Court of Appeals reversed the district court.

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Yes, we’re back, and with a case on …. spot zoning

Gary Taylor

by Gary Taylor

Ely v. City of Ames
(Iowa Court of Appeals, June 30, 2010)

The Elys own a tire and automotive service center on Lincoln Way.  Next door is the Martin House.  From approximately 1920 to the late forties the Martins provided room and board to African-American students attending Iowa State University when the students were denied housing elsewhere.  George Washington Carver, distinguished botanist and the first African American to graduate from Iowa State University, often visited the Martin’s home when he returned to Ames.  The house is also an example of the Craftsman architectural style, and is one of the few remaining houses on Lincoln Way, which has become a major commercial arterial.  The property is zoned “Highway-Oriented Commercial” but exists as a legal nonconforming residential use. 

The Archie and Nancy Martin Foundation submitted an application for Ames to designate the home as an historic landmark.  Over objections by the Elys, the Ames city council approved the designation and rezoned the Martin property as a “Historic Preservation Overlay District.”  The Elys sued, raising issues of (1) procedural due process, (2) equal protection, and (3) spot zoning.  The district court found in favor of the city on all three issues, and the Elys appealed.

Procedural due process.  On the procedural due process claim the Iowa Court of Appeals started by stating the well-settled legal principle that “a person is only entitled to procedural due process when a state action threatens to deprive a person of a protected property or liberty interest.”  The Elys argued that they have a protected interest in maintaining the value of their land, but the Court of Appeals disagreed.  “An abstract desire or expectation of a benefit is not sufficient,” but rather “a property interest is only protected if there is a legitimate claim of entitlement.”  The Court further ventured to state that even if it could somehow be shown that the Elys had protected property interests that were implicated by the historic landmark zoning of the neighboring property, the public hearing at which the rezoning was discussed and decided by the city council gave the Elys sufficient opportunity to be heard to satisfy procedural due process.

Equal protection.  The Elys next claimed that because the historic landmark designation fails to require the Martins to adequately maintain the property, it results in differing treatment between historic landmarks and surrounding properties and thus violates the Ely’s right to equal protection of the law.  The Court dismissed this argument by first recognizing that differing treatment under the law is permissible if parties are not similarly situated.  The Court concluded that promoting preservation of historical and cultural landmarks is a legitimate governmental interest sufficient to support differing treatment of properties.  Further, the Court observed that the Martin property was, in fact, held to a higher standard of maintenance than the Ely’s because the Martin property was subject to Ames’s rental code. 

Spot zoning.  The Court dismissed the Ely’s final issue of spot zoning by observing that illegal spot zoning results when “like tracts or similar lots are subject to reclassification” without reasonable grounds for treating the subject property differently.  “If a [city council or county board] could determine the subject property is distinguishable from the surrounding area [the court] will uphold its decision.”  The facts that the property had historical and cultural significance to Ames, and that it was a legal nonconforming residence in a residential structure were sufficient grounds for a zoning classification different from its surrounding properties.

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Hudson Iowa rezoning consistent with its comp plan

Gary Taylor

by Gary Taylor

Marianne Craft Norton Trust v. City Council of Hudson, et.al.
(Iowa Court of Appeals, October 7, 2009)

Rezoning of parcel within city limits from suburban agricultural to rural residential consistent with comprehensive plan; did not constitute spot zoning.

Defendants, the Manatts and the Petersons, own 40 acres west of Highway 58, on the north side of the City of Hudson within the city limits.  The Marianne Craft Norton Trust owns adjacent property immediately south of the defendants’ property.  Although the land along both sides of Highway 58 leading out of town to the north is primarily agricultural, there are more than 20 rural residences in the area between the densely-settled part of the city and Highway 20, four miles to the north. 

The city adopted an updated comprehensive plan in October 2006 that designated 160 acres along the west side of Highway 58, including the defendants’ land and the land owned by the Trust, for future residential development.  In November 2006  defendants filed with the city council a request to rezone the 40 acres in question from A-1, Suburban Agriculture to R-5, Large-Lot Residential.  The plat submitted with the request showed 5 lots for development, ranging from 3 1/3 acres to over 4 1/2 acres, and two large undeveloped parcels.  The city planning and zoning commission voted in January 2007 to recommend approval of the rezoning.  After the required public hearings, the city council approved the rezoning request in April 2007.  In May 2007 the Trust filed a petition for writ of certiorari  with the district court, alleging the rezoning was “illegal, arbitrary and capricious, unreasonable, not based on substantial evidence, and an abuse of discretion.”   After taking testimony, reviewing exhibits and, with permission from the parties, visiting the area the court ruled in favor of the city and the defendants.  The court found the character of the area in question, while once primarily agricultural, has changed significantly and “visually appears to be more rural residential than agricultural.”  It found the city council gave proper reasons for approving the rezoning, and gave consideration to the appropriate factors.  It further concluded that “even if the rezoning does fit within the definition of spot zoning, it is not illegal,” in that there was a reasonable basis for making the distinction between the rezoned property and the surrounding property, and the rezoning was consistent with the comprehensive plan.  The Trust appealed the district court’s ruling.

The Court of Appeals affirmed the district court on all counts.  The Trust contended that the city council did not follow the elements found in Iowa Code 414.3 when considering whether to rezone the property and that the council, in performing a quasi-judicial function, should have made written findings with regard to each element.  The Court of Appeals disagreed, finding that “a primary consideration of [Iowa Code 414.3] is that the zoning be in accordance with a comprehensive plan.”   The minutes of the council meetings and the testimony of two council members at trial showed that the rezoning followed many of the land use goals stated in the comprehensive plan, and was consistent with the designation of the area for future residential use.  The Court of Appeals then, on its own, proceeded to relate the considerations of the rezoning to a number of the elements found in Iowa Code 414.3, and determined that although the evidence on some elements of the statute was mixed and could support a decision supporting or reversing the rezoning, the bulk of the evidence on the elements of section 414.3 supported the council’s decision.  “In addition, if the reasonableness of a zoning decision is open to a fair difference of opinion, courts do not interfere with the decision.”  The Court of Appeals did not address the district court’s conclusion that it “did not read Sutton v. City of Dubuque to require a council to issue written findings.”

The Court of Appeals judged the claim of illegal spot zoning against the three-part test in Perkins v. Madison County:  (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.  It also examined the considerations discussed in Kane v. City of Cedar Rapids, those being “the size of the spot zoned, the uses of the surrounding property, the changing conditions of the area, the use to which the subject property has been put, and its suitability for various uses.   It again ran through a number of facts from the record, and found particularly persuasive that the permitted uses in A-1, Suburban Agriculture and R-5, Large-Lot Residential were “quite similar and compatible,” that the character of the area was changing from agricultural to rural residential, and that the comprehensive plan contemplated future residential development in the area.   The court also observed that “in contrast to some other spot zoning cases, where the rezoned property was freed from some restrictions placed on the surrounding property, the rezoning in the case before us is more restrictive than the zoning on the surrounding property.”  The court concluded that the rezoning did not constitute an illegal spot zoning, nor were the council’s actions arbitrary, capricious or an abuse of discretion.

Comprehensive Plan, Rezoning, Spot Zoning , , , ,
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