Iowa Supreme Court overturns loss of nonconforming status for Des Moines mobile home park

by Eric Christianson

Des Moines v. Ogden
Iowa Supreme Court, March 16, 2018

Frank Ogden owns and operates a nonconforming mobile home park on the south side of Des Moines. The property consists of a narrow u-shaped access road with mobile homes around the interior and exterior of this road. The historical record is not clear, but its use as a mobile home park dates back to some time between 1947 and 1955. In 1953 the Des Moines zoning ordinance was modified prohibiting mobile home parks in the R-2 zone in place on the property. In 1955, the owner of the property obtained a certificate of occupancy for the operation of a mobile home park. That certificate of occupancy indicates that the mobile home park was a nonconforming use as to the R-2 zone.

The best record documenting historical use is an aerial photograph from 1963. The photograph depicts “thirty-nine concrete pads with mobile homes situated on them in close proximity to one another. The photograph also shows that some of the homes had additional structures attached to them.” More recent photographs of the property reveal that some residents have added porches, decks, and more living space to their mobile homes.

The city did not issue any warnings or citations regarding the use of the property as a mobile home park until 2014. In 2014, a zoning administrator notified Ogden by letter of numerous violations of the 1955 Des Moines Municipal Code, under which the original certificate of occupancy had been awarded. These included setback violations, failure to maintain the access road, and additions to trailers among other issues. The letter also warned that the park’s violations posed a threat to the health and safety of the occupants.

Ogden did not take any action to remedy the violations. In October 2014, the city sought an injunction to close the park for the above listed violations. At trial the Des Moines Fire Marshall testified that the proximity of the mobile homes and the narrow access road created potentially dangerous conditions for residents.

The trial court found that the issuance of the occupancy permit in 1955 is proof that the property was in compliance with the above regulations when the nonconforming use was established. The court held further that the certificate of occupancy should be revoked as the park poses a threat to “the safety of life or property”.

Ogden appealed to the Iowa Court of Appeals. The Iowa Court of Appeals found that the park had:

grown within its borders in the numbers and location of structures attached to the mobile homes resulting in a narrowing of open space on the roadways and between the homes. […] these changes over a half century have enhanced and intensified the non-conforming use to the point where it is a danger to life and property. […] Ogden’s use of the property is not a lawful intensification of an existing nonconforming use. The present congestion and crowding between structures and narrowing the roadway changes the nature and character of the 1955 non-conforming use and presents a danger to residents and neighbors of the park.

The appeals court affirmed the grant of the city’s request for an injunction against Ogden’s use of the property as a mobile home park. One judge dissented. Read more about that decision here.

Ogden appealed to the Iowa Supreme Court arguing several points:

  1. The actions of the City to enjoin his use of the mobile home park amount to an unconstitutional taking.
  2. It is not necessary for Ogden to discontinue his legal nonconforming use of the property as a mobile home park for the safety of life and property.
  3. The changes to the property did not expand his legal nonconforming use of the property beyond its authorized nonconforming use.
  4. The doctrine of equitable estoppel bars the City from seeking to enjoin his use of the property as a mobile home park.
  5. The district court erred by excluding the testimony of a resident of the mobile home park.

Unconstitutional Takings Because Ogden did not plead a defense on the basis of a taking at the district court level he waived his unconstitutional takings claim. The claim was not preserved. Iowa Supreme Court therefore did not rule on any regulatory takings claims.

Nonconforming Use The court began by citing its definition of a legal nonconforming use.

A nonconforming use is one “that lawfully existed prior to the time a zoning ordinance was enacted or changed, and continues after the enactment of the ordinance even though the use fails to comply with the restrictions of the ordinance.” City of Okoboji v. Okoboji Barz , Inc. […] (Iowa 2008) .

Discontinuance of nonconforming use for the safety of life or property For a city to obtain an injunction requiring compliance with a zoning ordinance it must establish (1) an invasion or threatened invasion of a right, (2) that substantial injury or damages will result unless the request for an injunction is granted; and (3) that there is no adequate legal remedy available.

The Iowa Supreme Court found that the City of Des Moines did not meet this burden. Apart from the testimony of the fire marshal during trial, the city offered little evidence of unsafe conditions on the property. The city had also never cited the property for violations of the fire code, and the first letter of notice of a zoning violation was not sent until 2014.

Nonconforming Use Defense In the case of an established nonconforming use, the burden lies on the city to prove that use exceeds the prior established use.  Property owners have some latitude to change their nonconforming use if those changes are not substantial and do not have adverse effects on the neighborhood. In this case, changes are compared to the state of the part when the certificate of occupancy was issued in 1955. Unfortunately there is no evidence as to the state of the park until the areal photograph from 1963. The City of Des Moines argues that the park must have been in compliance with setbacks and other regulations in 1955 otherwise the certificate would not have been granted. All of the violations visible in the 1963 areal photograph would have occurred between 1955 and 1963. The court finds this argument unpersuasive especially given the fact that the park was not cited for any zoning violations until 2014.

Taking the 1963 photograph as the best approximation of the nonconforming use recognized by the city in 1955. The number and location of the homes is similar to those located on the property today. The court notes that there are in fact less homes in the mobile home park today. The use of the property as a mobile home park today is then not “substantially or entirely different” from its original nonconforming use and is a protected legal nonconforming use.

Ogden’s Additional Claims Because the court found that Ogden’s use of the property as a mobile home park is a legal nonconforming use. The Court did not address equitable estoppel or the exclusion of the testimony of a resident.


The Iowa Supreme Court vacated the decision of the court of appeals and reversed the judgment of the district court. Ogden may continue his nonconforming use of the property as a mobile home park.

2018 Nuisance Abatement Conference

The Iowa League of Cities and ISU Extension to Communities will be hosting the inaugural Nuisance Abatement Conference, May 16 at the Gateway Conference Center in Ames. The day-long conference will feature guidance on nuisance abatement, a critical issue for all communities in their efforts to build and maintain vibrant neighborhoods. Attendees will learn effective ways to rebuild homes and buildings, return dormant properties to an active use and restore community pride. Registration will open soon.


Opening General Session (10-11 am)

The conference will begin with guidance on how to set a strong foundation for nuisance abatement. We will cover the basics of nuisance property codes, effective enforcement methods and dealing with dangerous and dilapidated buildings.


Concurrent Workshops – Morning Session (11 am – noon)

  • Proactive Nuisance Abatement Strategies – Hear how your community address nuisances before they become a problem, including efforts to build neighborhood pride, identify leaders and motivate residents to maintain their property.
  • Creating a Nuisance Abatement Plan – Many cities conduct nuisance abatement activity in a purely reactive way, but what if your community developed a detailed plan? Planning can help prioritize properties and issues to address, leading to a more effective and efficient nuisance abatement process.
  • Tax Sales and Acquisitions – This workshop will focus on processes to acquire derelict and abandoned properties through tax sales and award of title by a court. While these processes can be challenging, they are a powerful tool that communities can use to return problem properties to a more active use.

Lunch (Noon – 1 pm)

 Concurrent Workshops – Afternoon Session (1-2 pm)

  • The “Other” Nuisances – This session will offer tips for dealing with the “other” nuisances that occur beyond the usual overgrown grass or weeds. Learn best practices for enforcing junk vehicle codes, business nuisances, noise violations, animal control provisions and more.
  • Financing Nuisance Abatement – Finding ways to fund nuisance abatement activities is challenging as cities try to stretch their budget as far as possible. Hear methods for collecting abatement costs from property owners, how to strategically budget for abatement efforts and state programs that offer funding assistance.
  • Tax Sales and Acquisitions – A repeat from the morning session to ensure adequate time is given to this important and challenging topic.


Closing General Session (2-3 pm)

Attendees will hear from a panel of city officials that have used innovative methods in successfully addressing nuisance properties. This interactive closing session will provide case studies and lessons that can be applied in any community with an opportunity to discuss local challenges.

The Annual Fiscal Conditions Report (FYE 2017) for all cities in Iowa is now available

The Iowa Government Finance Initiative (IGFI) Annual Fiscal Conditions report, for the Fiscal Year Ending 2017 for all 945 cities in Iowa have just been released. County reports are forthcoming later this year. The reports provide an alternate perspective on local government finances and trends. The information in these reports will help local elected and appointed officials during their budgetary and planning processes.The 2017 reports have been thoroughly revised and expanded. Ending fund balance is now presented separately for the governmental funds and proprietary funds.

These reports are a valuable resource to communities in Iowa to keep tabs on economic, demographic, and fiscal changes taking place and to plan for the future. This is the sixth year of publication for these reports. These reports can be accessed on the Iowa Government Finance Initiative website. Just click on ‘City Reports’.

IGFI is the public finance outreach wing of ISU Extension and Outreach. It provides resources and works with Iowa governments on a host of issues including finance and community economic development.

Questions on the report can be sent to Biswa Das at


Court of Appeals affirms ZBA’s denial of liquor permit

by Eric Christianson

Shop N Save v. City of Des Moines Board of Adjustment
(Iowa Court of Appeals, January 24, 2018)

Note: this is a separate case from Shop N Save v. City of Des Moines Zoning Board of Adjustment decided in August of 2017 year. Although both permits were denied at the same ZBA meeting citing much of the same evidence, they concern separate Shop N Save locations.

Shop N Save operates a convenience store located on Martin Luther King Jr. Parkway in Des Moines. As a limited food / retail sales establishment, it may derive no more than forty percent of its gross sale receipts from the sale of liquor, wine, beer, and tobacco products. In March 2015, Shop N Save applied for a conditional use permit to operate as a liquor store, which would eliminate the store’s limit on gross sales receipts from the sale of those products.

At the zoning board of adjustment hearing held in April 2015, city staff recommended denial of the permit, and neighbors testified of crime and nuisance issues associated with liquor sales at the location. The board also noted the close proximity of the liquor store to residential property.

Based on this testimony and the proximity to residential uses, the board voted to deny the permit.

In May of 2015 Shop N Save appealed to district court arguing that the board illegally denied the permit. The district court affirmed the decision finding that the board had relied on substantial evidence to deny the permit. Shop N Save appealed again to the Iowa Court of Appeals.

The Court of Appeals examined the case to determine if the Zoning Board of Adjustment acted within its authority in denying the permit.

According to the City of Des Moines’s zoning ordinance a conditional use permit must be show to conform to the following criteria:

  1. The business conforms with [zoning restrictions].
  2. The proposed location, design, construction and operation of the particular use adequately safeguards the health, safety and general welfare of persons residing in the adjoining or surrounding residential area.
  3. The business is sufficiently separated from the adjoining residential area by distance, landscaping, walls or structures to prevent any noise, vibration or light generated by the business from having a significant detrimental impact upon the adjoining residential uses.
  4. The business will not unduly increase congestion on the streets in the adjoining residential area.
  5. The operation of the business will not constitute a nuisance.

Failure to comply with any one of these conditions is fatal to the application.

Shop N Save argues that the denial was not supported by substantial evidence because “only four individuals” spoke against the permit, and all of the issues raised took place when the store was under previous ownership.

The court disagrees, finding that the testimony of the neighbors in addition to an additional email from the neighborhood association were substantial evidence that issuing the permit could create a nuisance. The court states that Shop N Save’s assertions that things would be better in the future could have reasonably been accepted by the board, but they were not and that is within the board’s discretion.

Because the ZBA’s ultimate decision was supported by substantial evidence. The boards decision is affirmed.

Minnesota Appeals Court rules against impact fees for road construction

by Eric Christianson

Harstad v. City of Woodbury
(Minnesota Court of Appeals, September 18, 2017)

The City of Woodbury, Minnesota is a growing suburb of Saint Paul. To reduce the public burden of road construction to new subdivisions, the city passed an ordinance in 2016 which provides that the city may not approve a proposed subdivision if it is deemed “premature.” The city may deem a subdivision “premature” if streets “to serve the proposed subdivision” are not “available,” which is defined as streets “existing or readily extended and funded” as “consistent with the phasing in the comprehensive plan.”

However the city provides that a new development without existing road infrastructure may be deemed mature if the developer is willing to “pays its own way” and “all associated costs” for “public infrastructure” will “be the sole responsibility of the developing property owner.” To determine these associated costs, the city has allocated undeveloped land into three phases, each of which has an estimated associated cost per acre associated for “increased traffic and trips that are generated” by expected development in that area. This fee is referred to as a “major roadway assessment” or MRA and is used as the starting point for a negotiated agreement with developers.

Martin Harstad, of Harstad Hills Inc., submitted an application to to develop 77 acres of phase – two land into a 183 – home residential community called “Bailey Park on July 23, 2015. The city informed Harstad about certain deficiencies in the application. Harstad remedied the majority of them and was then informed by the city that the remaining deficiencies where relatively unimportant. This is significant because once the city receives a complete application under Minnesota law, if it does not deny that application with cause, it is automatically approved. After receiving the cost estimate from the city for the major roadway assessment, Harstad challenged the ability of the city to collect this fee in court. He also made a takings claim, arguing that the city had deprived him of use of his property without compensation. Finally he claimed that his application had already been approved as the statutory period that the city had to deny the claim had elapsed.

The district court found for the city on the latter two claims. The permit was not entirely complete, therefor the statutory period had never begun. The court also found that Harstads takings claims were immature as the permit had never been fully submitted nor had the fee been collected. The court did however find that the city had no power to collect fees to pay for road infrastructure.

The City of Woodbury appealed this decision to the Minnesota Court of Appeals.

The Minnesota Court of Appeals focused its analysis on the question of the power of Woodbury to collect a “major roadway assessment.” The City of Woodbury is a statutory city; thus, it “has no inherent powers beyond those expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred.”

The city argues it has express authority to impose the MRA under the plain language of Minn. Stat. § 462.358, subd. 2a . Section 462.358, subdivision 1a, provides that “a municipality may by ordinance” regulate the subdivision of land to , among other things, facilitate “adequate provision for transportation.” Minn. Stat. § 462.35 8, subd. 1a . Subdivision 2a states , in relevant part:

The standards and requirements in the regulations [authorized by subdivision 1a] may address without limitation : the size, location, grading, and improvement of lots, structures, public areas, streets, [and] roads . . . . The regulations may prohibit the issuance of permits or approvals for any tracts, lots, or parcels for which required subdivision approval has not been obtained.

The regulations may permit the municipality to condition its approval on the construction and installation of sewers, streets , electric, gas, drainage, and water facilities, and similar utilities and improvements or, in lieu thereof, on the receipt by the municipality of a cash deposit.

The city maintains that subdivision 2a’s “open-ended language” unambiguously authorizes it to condition subdivision approval on a developer’s agreement to pay an MRA that funds necessary road improvements “without limitation on location.”

The Court disagrees. This section only authorizes city planning not the collection of a fee to cover road construction costs. The Court pointed out the legislature has explicitly authorized municipalities to assess water and sewer connection charges against developers to fund public water and sewer improvements made necessary by development. The legislature has never made similar provisions for roadways.

The court agreed with the district court finding that although the city had communicated with Harstad that the remaining deficiencies in his application were minimal, the fact that they were never corrected meant that the statutory period in which the city had to approve or deny the application never began.

Finally the court affirmed the district courts denial of Harstad’s taking claim. The permit has not yet been denied nor has the major roadway assessment been collected, so no taking could have occurred.

The City of Woodbury has appealed to the Minnesota Supreme Court which accepted to hear the case. A date for oral argument has not been set.

Registration now open for 2018 Intro to Planning and Zoning Workshops

The dates and locations for the Spring 2018 workshops are:

March 20 – Iowa City – Johnson County Extension Office, 3109 Old Hwy 218 S **Location Changed**
March 26 – Sioux City – Hilton Garden Inn, 1132 Larsen Park Road
March 27 – Okoboji – Arrowwood, 1405 Hwy 71
April 2 – Ankeny – Courtyard Marriott, 2405 SE Creekview Dr
April 3 – Clear Lake – Best Western Holiday Lodge, 2023 7th Ave
April 9 – Oskaloosa – Oskaloosa Public Library, 301 S Market St
April 10 – Decorah – Hotel Winneshiek, 104 East Water Street
April 24 – Creston – Supertel Inn & Conference Center 800 Laurel

More information and the link to registration for the Spring 2018 Introduction to Planning and Zoning workshops can now be found by going to the “Intro to Planning and Zoning Workshops” link at the top of your screen.

South Dakota Supreme Court defers to local interpretation of zoning ordinance

by Eric Christianson

Croell Redi-Mix v. Pennington County Board of Commissioners
(South Dakota Supreme Court, December 13, 2017)

Croell Redi-Mix owns and operates a quarry located in Pennington County, South Dakota. The quarry has been in operation since the 1970s and was acquired by Croell in 2015. Croell intended to expand the operation. After the quarry was opened, but before it was acquired by Croell, Pennington County adopted zoning ordinances. The quarry falls into the “A-1 General Agricultural District” which allows “temporary quarries” ,by right, and mining operations, provided that a construction permit is obtained.

In late 2015, working in consultation with staff from the Pennington County Planning Department, Croell submitted an application for a construction permit to expand its operations. On February 8, 2016 staff issued a recommendation that the permit be granted subject to 11 conditions. The Pennington County Planning Commission reviewed the report and approved the application subject to the recommended conditions that same day.

On February 10, 2016, the Pennington County Board of Commissioners received a letter signed by 37 area residents requesting an appeal of the approval of the permit. The Board of Commissioners held a special meeting on March 2 to consider the appeal. Opponents expressed concerns about the quarry’s expansion including: dust, traffic, availability of groundwater, runoff, and depreciation of property values. At a second hearing the board voted 4-1 to reverse the approval of the permit.

Croell appealed to the circuit court which reversed the Board of Commissioners decision finding:

  1. The residents who sent the letter did not have standing to appeal.
  2. The Commissioners misinterpreted their own ordinance in their decision.
  3. The Commissioners’ decision to deny the permit was arbitrary.

The Board of Commissioners appealed to the South Dakota Supreme Court which granted certiorari.

The Supreme Court reconsidered the three findings of the circuit court.

Standing to Sue Pennington County’s Zoning Ordinance states:

“Any action taken by the Planning Director in administering or enforcing Section 507(A) may be reviewed by the Pennington County Board of Commissioners upon the request of any person affected by such action.” [PCZO § 507(A)(7)(f)]

Croell argues, and the circuit court agreed that this right to appeal only extends to considerations of erosion and storm water control. The Supreme Court reads this passage differently, interpreting the word ‘administer,’ ‘affected,’ and ‘any’ above quite broadly:

PCZO § 507(A) is titled “Erosion and Storm Water Control,” the right to appeal under §507(A)(7)(f) extends to anyone “affected” by “any action taken by the Planning Director in administering . . . Section 507(A)[.]” (Emphasis added.) Noticeably absent from §507(A)(7)(f) is any language limiting the right to appeal to matters involving erosion and storm – water control. Thus, §507(A)(7)(f) provides a right to appeal any action taken by the Planning Director under §507(A). In this case, the action challenged is the Director’s issuance of a construction permit — i.e., the Director’s administering of §507(A)(3).

Because the individuals appealing would be affected by the zoning administrators decision, they have standing to appeal.

Statutory Interpretation Croell argues that the use of its property as a quarry is a permitted use in an A-1 General Agricultural district given that the statute permits temporary quarries and requires only a building permit for the “extraction of sand, gravel, or minerals.”

The County claims that Croell would need to obtain a seperate mining permit as required in the plain language of the ordinance which states, “no extraction of any mineral or substance […] shall be conducted without a Mining Permit.” Here the court identifies a question of statutory interpretation and supports the Commissioners’ interpretation. Further the Court cites the US Supreme Court’s opinion from Chevron v. Nat. Res. Def. Council (1984), which established the principle of “Chevron deference.” Chevron established the principle that courts will defer to the interpretation of those administering a statute as long as that interpretation is “based on a permissible construction of the statute.” In this case the South Dakota Supreme Court found that the Pennington Board of Commissioners interpretation was permissible.

Arbitrariness Because the Supreme Court found that the Board of Commissioners was able to consider more than erosion and storm water control in its decision making, the argument for arbitrariness is moot. The Board’s decision was based on evidence in the scope of its review.

The Supreme Court found that the circuit court erred in reversing the Commissioners’ decision.

Des Moines Board of Adjustment substantially complied with the law in granting setback exception

by Eric Christianson

Graziano v. Des Moines Board of Adjustment
(Iowa Court of Appeals, November 8, 2017)

Cecelia Kent purchased a previously undeveloped lot in Des Moines with the intent of building a single family home. However the winding road and a thirty-foot easement for a public storm sewer running diagonally across the back of the lot complicated Kent’s plans. On November 14, 2015, Kent appealed to the Des Moines Zoning Board of Adjustment for an exception to the district’s fifty-foot front yard setback, allowing her to build a house with a front yard setback of just thirty feet. She also asked the board for a variance to the setback required for a parking lot and an exception to the side yard setback.

The board denied the variance and the side yard set back, but voted to approve the exception to the front yard setback.

Kent’s neighbor Craig Graziano challenged the board’s action on two grounds:

(1) the board failed to make required written findings
(2) substantial evidence does not support the grant of an exception.

As quasi-judicial bodies, boards of adjustment are required to make written findings of all facts present. The intent of these is “to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.” In this case, the court of appeals determined that the staff report as well as the minutes of the discussion during the meeting was sufficient to allow the court to determine the factual basis and legal principles upon which the board acted.

 The criteria that the board is required to consider in granting an exception is detailed in Des Moines City Code:

1. (a) Such exception does not exceed [fifty] percent of the particular limitation or number in question . . .
2. The exception relates entirely to a use classified by applicable district regulations as either a principal permitted use, a permitted accessory use, or a permitted sign, or to off-street parking or loading areas accessory to such a permitted use;
3. The exception is reasonably necessary due to practical difficulties related to the land in question;
4. Such practical difficulties cannot be overcome by any feasible alternative means other than an exception; and
5. The exception is in harmony with the essential character of the neighborhood of the land in question.

Graziano challenged that the board had failed to show to show that there was no “feasible alternative” to granting the exemption  and that the reduced setback would be “in harmony with the essential character of the neighborhood.”

With regards to feasible alternatives, the meeting minutes show that the board of adjustment did discuss the possibility of moving the easement as well as to whether a smaller reduction to the setback might be adequate. Although this reasoning was not included in the final written findings, the court found this to be adequate to support the fact that the board “substantially complied” with the mandate to consider feasible alternatives.

Graziano also challenged that by not including expert testimony on the effect that this exemption may have on neighboring property values, the board failed to show that the setback would be “in harmony with the essential character of the neighborhood.” The court found that expert testimony is not required citing an earlier case which found:

[T]he board may rely upon “commonsense inferences from evidence relating to other issues, such as use and enjoyment, crime, safety welfare, and aesthetics, to make a judgment as to whether the proposed use would substantially diminish or impair property values in the area.”

The court affirmed the district court’s ruling upholding the exception granted to Kent.

Iowa Supreme Court Rules that Cities May Take Possession of Abandoned Properties

Cby Eric Christianson

Eagle Grove v. Cahalan Investments
(Iowa Supreme Court, December 1, 2017)

Cahalan Investments purchased two residential properties in the City of Eagle Grove, one in 2002 and the other in 2011. Both properties have remained unoccupied and in deteriorating condition since their purchase. The properties were the subject of multiple complaints by neighbors and were found to be unfit for human occupancy.  In 2014 the city began an effort to clean up a number of nuisance properties, these properties were among those targeted. The city sent several letters to Cahalan advising them that they were in violation of the city’s nuisance ordinance. Cahalan made no effort to abate the nuisance and would later testify that they had no intention of making either property habitable in the foreseeable future

Iowa Code section 657A.10A allows cities to petition a district court to transfer ownership of abandoned properties to the city. The code details the following criteria that a court is to use when determining if a property has been abandoned.

a. Whether any property taxes or special assessments on the property were delinquent at the time the petition was filed.
b. Whether any utilities are currently being provided to the property.
c. Whether the building is unoccupied by the owner or lessees or licensees of the owner.
d. Whether the building meets the city’s housing code for being fit for human habitation, occupancy, or use.
e. Whether the building is exposed to the elements such that deterioration of the building is occurring.
f. Whether the building is boarded up.
g. Past efforts to rehabilitate the building and grounds.
h. The presence of vermin, accumulation of debris, and uncut vegetation.
i. The effort expended by the petitioning city to maintain the building and grounds.
j. Past and current compliance with orders of the local housing official.
k. Any other evidence the court deems relevant.

The code then states that if the court finds the property is abandoned, “the court shall enter judgment awarding title to the city.” In this case, the district court found that Cahalan’s properties were indeed abandoned under the definition set forth in the statute. In fact Cahalan Investments does not dispute this finding; however, Cahalan argued that awarding ownership of these properties to the city without compensation violated the takings clause of the US Constitution. In this case, the district court found Cahalan Investment’s argument convincing and did not award title to the City of Eagle Grove.

The City of Eagle Grove appealed the district court’s decision to the Iowa Supreme Court.

The Iowa Supreme Court revisited the question of whether awarding ownership to a city under Iowa Code section 657A.10 is constitutional.

Proving that a section of state code is unconstitutional is not easy. The court quotes an earlier decision stating that, “statutes are cloaked with a presumption of constitutionality. The challenger bears a heavy burden, because it must prove the unconstitutionality beyond a reasonable doubt.”

Takings jurisprudence is based primarily on the takings clause of the Fifth Amendment which states that, “private property [shall not] be taken for public use, without just compensation.” To determine if a governmental action has violated the takings clause, the court uses the following framework:

(1) Is there a constitutionally protected private property interest at stake? (2) Has this private property interest been “taken” by the government for public use? and (3) If the protected property interest has been taken, has just compensation been paid to the owner?

In this case, Cahalan’s case fails on the first question. The court cites an earlier ruling which states that “the State has the power to condition the permanent retention of [those] property right[s] on the performance of reasonable conditions that indicate a present intention to retain the interest[s].” Ownership of property comes with many rights, but is not absolute. Here the court is saying that in Iowa a property owner’s rights do not include allowing properties to remain abandoned. By doing so here, Cahalan has forfeited their rights.

By allowing the properties to persist in a condition unfit for human habitation, allowing the properties to remain vacant, and failing to make timely and reasonable efforts to remedy the public nuisances created by the properties after notification of the problems, Cahalan did not comply with the section 657A.10A(3) criteria. Thus it failed to “indicate a present intention to retain the interest.” See id. at 526, 102 S. Ct. at 790. We conclude the district court erred in concluding Cahalan holds a constitutionally protected private property interest in the abandoned properties for which just compensation is owed.

Finding that Cahalan Investment’s stake in the properties was not a constitutionally protected right is enough to decide the case, but for completeness the court did examine the second question as well.

Assuming that Cahalan did have a constitutionally protected private property right the court still found that takings jurisprudence supports the city’s actions. A taking occurs when the government denies a property owner “all economically beneficial or productive use” of property. In this case there is no dispute that Cahalan Investments has been deprived of all use of these two properties. Generally when that occurs, the government is required to pay just compensation. However, there is a public nuisance exception in takings jurisprudence. The state has the “power to abate nuisances that affect the public generally, or otherwise,” and this action, “is not a constitutional taking for which compensation is required.”

The court also examined whether the fact that Cahalan Investments purchased these properties before the enactment of this particular section of 657A would prevent it from being applied in this case. Here the court found that the state’s existing legislation as well as the principles of nuisance law already in place at the time of purchase were sufficient to hold that Cahalan never possessed the right to maintain properties in an abandoned state.

The Iowa Supreme Court reversed the finding of the district court that the city’s exercise of 657A constituted an unconstitutional taking and remanded the case back to district court.

Empirical evidence may not be necessary for time, place, and manner regulations on signage

by Eric Christianson

Luce v. Town of Campbell
(Seventh Circuit Court of Appeals. September 22, 2017)

Interstate 90 runs through the town of Campbell, Wisconsin where it is crossed by two streets and a pedestrian overpass.

Gregory Luce and Nicholas Newman, two members of the local Tea Party, chose to use the pedestrian overpass to promote their views. With their group, they held American flags along with banners and signs messages such as “HONK TO IMPEACH OBAMA.” This led the Town’s legislature to enact an ordinance forbidding all signs, flags, and banners (other than traffic-control information) on any of the three overpasses, or within 100 feet of the end of these structures.

Complicating this case is the fact that the local police chief, Tim Kelemen, and the Tea Party protesters escalated the conflict. The members of the Tea Party group posted videos and messages online. One video showed police removing a protestor for unfurling an American flag.

The police chief responded by posting the name and email address of one of the protestors on same-sex dating and pornography websites. Kelemen also posted comments on the local newspaper’s website accusing that protestor of failing to pay his property taxes and other debts and asserting that his car was about to be repossessed. When this behavior was revealed, Kelemen resigned his post as police chief and was prosecuted for “unlawful use of a computerized communication system.”

In this case the plaintiffs considered the actions of the police chief to have been retaliation by the city for their speech. However the court found that Kelemen’s vigilante actions were private in nature:

The court concluded that Kelemen was not engaged in state action when “messing with” Luce and that the First Amendment therefore did not apply (for it deals only with governmental conduct). Acting as a vigilante is not part of a police officer’s job. Kelemen did some of the dirty work while on duty and used an office computer for some posts. But he did not use official information or privileged access to information. All of the facts he gathered and disclosed about Luce, such as his physical and email addresses, were available to the general public. Anyone else could have done exactly what Kelemen did.

While Kelemen’s actions were not “state action” the court does say that his actions undermine his credibility as a witness stating the dangers presented by signage on the overpass. While one photograph of a car, which had stopped to take a picture, was shared at trial, without Kelemen’s testimony there was no other evidence to prove this law advances a “significant governmental interest.”

However, the court asserts that case law shows that reasonable, content-neutral, time, place, and manner restrictions on speech have not required empirical evidence to pass constitutional muster. As long as the legislatures assertions are reasonable, “the Court “hesitate[s] to disagree with the accumulated, common-sense judgments of local lawmakers.” Novel signs do attract more attention than fixed billboards. The City Council does not need a specific double-blind study to support that fact in this case.

A regulation of the sort the Town has adopted rests on a belief that overhead signs and banners will cause at least some drivers to slow down in order to read what the banners say, and perhaps to react to them (say, by blowing the car’s horn in response to “HONK TO IMPEACH OBAMA”). Stopping to take a picture is just an extreme version of slowing down. Reading an overhead banner requires some of each driver’s attention, and diverting attention—whether to banners or to cell phones and texting—increases the risk of accidents. This effect is well established for cell phones and texting and is the basis for legislation by many jurisdictions, uncontested in court as far as we are aware, though talking and texting are speech.

It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it. When one car slows suddenly, another may hit it unless the drivers of the following cars are alert—and, alas, not all drivers are alert all the time

The court did remand a portion of the law which bans all signage within 100 feet of the overpasses including those which would not be visible to drivers on the interstate.