Failure to sue the proper party proves fatal to rezoning challenge

Rita Aust, et al. v. Platte County, PC Homes L.L.C., Kelly Jo Yulich Trust, Arlene Kagan and Wendy Winer
Missouri Court of Appeals, December 29, 2015

Real Estate developer PC Homes entered into a purchase agreement with three landowners to buy their property with the purpose of developing it into a single-family community in Platte County, MO. Platte County Planning and Zoning Commission twice denied the application to rezone the property from “agricultural” and “rural estates” to “single family high density” and “planned residential.” The Platte County Commission approved the rezoning to “planned residential.”

Aust and 41 other Platte County property owners (Appellants) filed a petition in the Circuit Court of Platte County for a writ of certiorari and declaratory judgment that the Commission’s decision was illegal, unreasonable and arbitrary. They wanted the rezoning to be denied or rescinded. Platte County was the only defendant on the petition. Platte County filed to dismiss the petition on multiple grounds.

The circuit court dismissed the petition, which was followed by an appeal.

The Appellants argued that the circuit court erred in dismissing their complaints because: (1) the provided proper notice to all parties; (2) their failure to file the record of the administrative proceedings within the statutorily-required time frame was not fatal to their claim; (3) declaratory relief was available to them; and (4) they sufficiently pled a claim for injunctive relief.

In addressing the first two points on appeal, the court referenced Section 64.660. Even though Platte County is a non-charter first class county, its planning and zoning program operates under statutes of second and third class counties. Section 64.660 provides in part, that any land owners disturbed by a county commission decision may present a petition in circuit court within 30 days after the decision. The statute also provides that after the petition is presented the court should allow a writ of certiorari. The court is allowed to reverse, affirm or modify the decision brought up for review (64.660.2).

The Appellants filed the petition against the County, not the County Board of Commission. This led to the Appellants being unable to file the record within 30 days of filing their petition. The Appellants sought to include the individual Commissioners within their official capacities, they did not ask to join the Commission as a body. Because the Appellants failed to seek a writ of certiorari against the proper party under Section 64.660 and did not turn in the record within 30 days the first two points were denied.

Regarding the third point, Section 64.660 provides for judicial review of the Commission’s zoning decisions through a petition for writ of certiorari. A declaratory judgment is not available to the Appellants because the option of the legal remedy precludes declaratory relief. Point three was denied.

Regarding point four, parties are not allowed to obtain equitable relief, such as an injunction, “unless the facts pleaded in the petition show they lack an adequate remedy at law”. The Appellants did not plead any facts showing that they lacked an adequate remedy at law. Point Four was denied and the circuit court’s judgment was affirmed.

North Dakota county fights for zoning control over oil and gas development

Dunn County will ask the North Dakota Supreme Court to uphold its authority to apply zoning to oil and gas development.

The county decided to appeal a district court judge’s decision that the North Dakota Industrial Commission (NDIC) has sole jurisdiction over an oil waste treatment facility in the county.

The dispute started in 2013, when Environmental Driven Solutions sued the county for denying zoning for storage tanks on property adjacent to the treatment facility. EDS said state law gives NDIC authority that preempts local zoning. In this case, the NDIC had issued a permit for the treatment plant.  The district court agreed, saying that state law gives the commission control over drilling, all operations for oil and gas production, and, since 2013, the disposal of saltwater and oilfield wastes.

The North Dakota Attorney General filed in support of EDS’s case.

The full story is here, courtesy of the Bismark Tribune.

Community group did not have standing to challenge rezoning denial

by Hannah Dankbar and Gary Taylor

Iowa Coalition Against The Shadow (ICATS) and Rockne Cole v City Council of Iowa City
Iowa Court of Appeals, January 27, 2106

Iowa City owned property zoned as “Neighborhood Public Zone” (P-1) that was no longer needed for city purposes.  The City Council requested developers to submit proposals, and accepted a proposal for a twenty-story building that would have both commercial and residential units. The proposed building would require the property to be rezoned as CB-10, which contains no height restrictions.  Cole and others filed an application to rezone the property to “Central Business Support Zone” (CB-5) to prevent a building that height from being constructed (CB-5 allows for mixed-use buildings that are less than 75 feet fall). None of the rezoning applicants owned property neighboring the parcel in question or sought to purchase the property to erect a building to comply with CB-5 zoning.  Their application urged the City Council to “protect our cherished commons, and allow future generations of children to enjoy the bright sunlight at Chauncey Swan Park without a 20 story tower looming over them.

The Planning and Zoning Commission held multiple meetings, and ultimately recommended denial of the rezoning application.  The City Council ultimately denied the request.  this left the property as P-1

Cole and ICATS filed a petition for a writ of certiorari claiming that the denial of the rezoning application was arbitrary and discriminatory because City Council had prejudged the issue and intended to grant CB-10 to accommodate the development. They argued that CB-10 zoning violated the comprehensive plan and Iowa Code section 414.3 (2013) and was illegal spot zoning. The district court determined that Cole and ICATS did not have standing because they did not suffer an injury and did not have a vested interest in the property. Cole and ICATS appealed the decision.

On appeal, Cole argued that because he applied for rezoning he had standing. ICATS claimed that they had standing to assert the rights of its members in challenging the rezoning denial.

To determine whether a person has sufficient interest to challenge a zoning decision Iowa is guided by a decision of the Florida Supreme Court: “(1) proximity of the person’s property to the property to be zoned or rezoned; (2) character of the neighborhood, including existence of common restrictive covenants and set-back requirements; (3) type of change proposed; and (4) whether the person is on entitled to receive notice under the zoning ordinance.” (Renard v. Dade County, 261 So. 2d 832, 837 (Fla. 1972)).

The court applied those factors to this case and determined that neither Cole nor ICATS had standing. There is nothing in the character of the neighborhood or the proposed zoning change that indicates Cole or ICATS had a particular interest in the change. They were interested in the change primarily so community members could enjoy the sun, but people with only a general interest shared by the public are not permitted to initiate action to promote judicial enforcement or interpretation of zoning regulations.

In addition to affirming that neither Cole nor ICATS had standing, the court also agrees that leaving that property zoned P-1 furthered the interest of ensuring residents can enjoy the sun. The specific injury that was the concern of Cole and ICATS (blocking the sun) did not occur by the denial of the rezoning application. Also, if the rezoning application was approved, there was nothing to prevent the developer from submitting an application to rezone the property to CB-10, so this zoning application did not necessarily prevent the injury Coke and ICATS sought to avoid.

The decision of the district court was upheld.

Subjective desire to maintain building insufficient to overcome determination of ‘abandoned building’

by Hannah Dankbar

City of Harlan v Walter Rogers
Iowa Court of Appeals, January 27, 2016

Rogers obtained a house built in 1885 after the death of his father-in-law in 2004.  Rogers made minor maintenance to the property at that time, such as fixing a leaky roof and cleaning up the yard, but Rogers lived in California and had problems maintaining the property. Between 2007 and 2014 Rogers received and paid a dozen special assessments. Nobody lived in the house during this time.  Also during this time, the house was broken into multiple times and multiple antiques were stolen.

In 2011 Harlan police received a nuisance complaint about the house. As a result of that call a Shelby County Environmental Health Specialist inspected the property who reported that is was, “very apparent that the owners have let this property go for many years without any maintenance or upkeep.”

In 2012 the City filed its petition under section 657A.10A and sent Rogers an order stating that the house and garage were a nuisance and were in violation of local housing codes. Because Rogers made “substantial compliance with the pre-condemnation demands” made by the City, both parties filed for a continuance multiple times. In September 2014, however, Rogers’s attorney moved to withdraw from the case stating that Rodgers had not followed the advice of the attorney. After that, Rodgers represented himself in trial in January 2015. The Shelby County Environmental Health Specialist did a final assessment of the house and found that the house still did not comply with the City housing code.  The trial court concluded that the property posed a danger to neighboring properties and residents because of its’ condition.  The court declared the property abandoned and awarded the title of the house to the City. Rogers appealed this decision.

Rogers argued that the district court should not have determined that the property was abandoned. Iowa Code section 6577A.1(1) defines an “abandoned” building as one that “has remained vacant and has been in violation of the housing code of the city in which the property is located…for a period of six consecutive months.” The code offers a list of factors a court “shall consider” to determine whether a property has been abandoned. Rogers argued his desire to “maintain his ownership in the property in Harlan” is sufficient to overcome the conclusion that the property was abandoned, but the court did not agree. Even though Rogers was up to date on his property taxes and special assessments, the house did not have utilities for more than twelve years and was vacant during this entire time. According to inspectors the house did not meet code for human habitation; it was not a house that would be habitable simply by turning on the utilities. Rogers claimed he was working on getting the the house fixed and intended to move into it upon his retirement, but the court stated that Rogers subjective desire to maintain the property was not the controlling factor.  Because the property has been vacant for more than six months, the court determined that it met the statutory test for a abandoned property and ruled in favor of the City.

ACLU of Nebraska urges Lexington City Council to grant CUP for Islamic Center

The American Civil Liberties Union of Nebraska announced Tuesday that it sent a letter to the City of Lexington, urging the City to grant the Islamic Center of Lexington’s request for a conditional use zoning permit. The Center applied for the permit in 2015 so they could expand in their location at 401 N. Grant, but the Lexington City Council denied the request, stating that the expansion would harm the development of that area of downtown, as well as expressing concerns over parking. The Center, which has occupied a portion of the building in question for several years, actually expanded into the contested area in March 2015 without making a conditional use request.

The full story from the Lexington Exchange is here.

Planning Board denial not a “final action” under Federal Telecommunications Act when review by Board of Appeals required by ordinance

by Hannah Dankbar and Gary Taylor

Global Tower Assets, LLC; Northeast Wireless Networks, LLC v. Town of Rome
Federal 1st Circuit Court of Appeals, January 8, 2016

Global Tower Assets and Northeast Wireless Networks obtained a leasehold interest in Rome, Maine. According to Rome’s Ordinance applicants must get permission from Rome Planning Board to build a wireless communication tower.

The Ordinance includes a section that reads, “[a]dministrative appeals and variance applications submitted under this Ordinance shall be subject to the standards and procedures established by the Town of Rome Board of Appeals.”

The companies first asked for permission from the Planning Board to build the tower on April 8, 2013. The Board discussed the proposal on May 20, 2013 and held other meetings over the next few months. On February 10, 2014, the Planning Board voted to deny the application because the application was not complete. On March 10, 2014 the Planning Board published their decision. The decision was sent to the Board of Appeals for Review. The next day, the companies filed suit in the United States District Court for the District of Maine.

Part of their suit included complaints under the Telecommunications Act (TCA) of 1996. The TCA provides relief to those who are denied permission to build telecommunication facilities at the state or local level trough “final action”. However, the TCA does not define “final action”.  In this case, the question is whether the administrative process ended. The companies filed their TCA challenge to the Town of Rome Planning Board’s decision before the decision was reviewed by the local board of appeals. In Maine there is a general requirement that land use and zoning appeals are first heard by a zoning board of appeals before they can be litigated in state court.  Thus under Maine law “Rome necessarily made review by the board of appeals a prerequisite to judicial review.” There was an opportunity for the Planning Board’s decision to be overturned through an administrative (rather than judicial) process, meaning that the decision of the Planning Board was not a “final action” within the meaning of the TCA. The legislative history of the TCA does not reject a two-step administrative process at the local level to determine “final actions.”  Because the administrative process, as defined by Rome’s Ordinance was not complete the District Court was correct to dismiss the complaints.

Bill allowing Wisconsin towns in Dane County to opt out of county zoning passes in State Assembly

The Wisconsin Assembly voted Tuesday, 62-35, to approve a bill that would allow Dane County towns to opt out of county zoning. Under current law, cities and villages control zoning development, while most towns share authority with the county, which has veto power.

Members of the Dane County Towns Association pushed for the changes, arguing they will offer more local autonomy to grow tax bases. But county, city and village officials lobbied heavily against it, arguing it would fragment decision-making and could erode the current balance of farmland and development in the county.

As written, the bill would only apply to Dane County.

The full story from the Capital Times is here.

Land application of biosolids was “normal agricultural operation,” triggering right-to-farm protections

by Hannah Dankbar and Gary Taylor

Gilbert v. Synagro Central
Pennsylvania Supreme Court, December 21, 2015

Appellees are thirty-four individuals who own or reside on properties next to a 220-acre farm in York County, Pennsylvania. The farm contracts with two companies who recycle biosolids to be used as fertilizer.

Between March 2006 and April 2009 approximately 11,635 wet tons of biosolids were applied to the farm. Appellees claimed that when the biosolids were applied there were strong, unpleasant odors that impacted their daily lives and made some residents ill.

Appellees complained to local officials, the biosolid companies and state officials with no response. In 2008 they filed two three-count complaints, which were consolidated. One of the complaints was that the appellants’ biosolids activities created a private nuisance.

Appellants argued that § 954(a) of the Right to Farm Act (RTFA) barred the nuisance claim. The relevant part reads:

No nuisance action shall be brought against an agricultural operation which has lawfully been in operation for one year or more prior to the date of bringing such action, where the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation and are normal agricultural operations.

The trial court determined that land application of biosolids is a “normal agricultural operation” under the RTFA. They found that land application of biosolids was not a substantial change in the farm business, and that farms have used different types of fertilizer for centuries. Also, appellees failed to identify what duty appellants owed them, which is an essential part to their claim.

On appeal the Superior Court reversed and remanded the nuisance claim. The court identified three requirements of the RTFA that must be met for a nuisance action to be barred: (1) the agricultural operation has an established date of operation at least one year prior to the filing of the action; (2) the conditions or circumstances constituting the basis of the action have been substantially unchanged since the established date of operation; and (3) the conditions are a “normal agricultural operation.” The court found that the first two requirements were met, but the third was not because there was no factual finding that application of biosolids was a “normal agricultural operation.” Regarding the second requirement, the court determined that a substantial change can reset the clock on the one-year allotment to file a claim. However, application began in 2006 and the complaint was not filed until 2008.

On appeal, the Supreme Court agreed with the Superior Court’s decision on the first two requirements. It then further addressed the question of whether the trial court correctly concluded that land application of biosolids as fertilizer is a “normal agricultural operation.” In addressing this question the court made extensive inquiry into the history of the land application of biosolids as fertilizer, related statutes and regulations, case law and executive agencies’ views.  At the conclusion of this inquiry the Court found support to determine that the application of biosolids falls under “normal agricultural operations.” Because the RTFA is meant to protect farmers from nuisance claims, the definition of normal agricultural operations must reflect accepted changes in agricultural practices, including the increased use of biosolids.  The result was that  the farm was protected from the nuisance claim.


Town properly used its police powers to build roads and levy special assessments after developer failed obligations

First State Bank v Town of Omro
Wisconsin Court of Appeals, November 11, 2015

Barony subdivision is a 74 lot subdivision that received plat approval in 2004. Only 9 lots were developed over the course of the next 5 years, and in 2009 First State Bank took control of the remaining 65 lots in lieu of foreclosure. At the time of foreclosure, sections of the roads in the subdivision were not paved. In 2013 Omro authorized the roads to be finished and specially assessed all the lots within the subdivision for the cost of completing the roads, which was $219,641.60. The Bank challenged Omro’s authority to levy the special assessments.  The issue on appeal was whether a municipality may use its police powers to build roads and levy special assessments against the land after a developer fails their obligation to build the roads.

The Bank claimed that the assessment was improper because: (1)the development agreement required the developer to pay for the roads; (2) the Ordinance prohibited the road work because 70% of the subdivision was not developed; (3) at the time the special assessments were imposed the subdivision’s roads were privately owned; (4) three lots were not specially benefited because they do not abut Omro’s roads; and (5) the wording of the preliminary and final resolutions did not conform with § 66.0703. The circuit court provided summary judgment to Omro.

The first two arguments asked whether Omro acted outside of their authority granted by the legislature. The Bank argued that the Ordinance says that the money for paving roads “will come directly from the developer, from a special assessment on the development, or another method approved by the Town Board” and that “the development agreement will dictate the method of payment for the paving.” The Bank argues that the developer is the only recourse for payment based on this language in the Ordinance and in the developer agreement. However, the language in these documents does not limit Omro’s power to levy special assessments. Just because the agreed upon payment did not work out does not mean alternatives are not allowed as long as Omro follows the appropriate procedures in state law permitting special assessments.

The Bank argued that because 70% of the subdivision was not developed the special assessment could not be levied.  The court pointed out, however, that there is language in the Ordinance that allows for a different schedule if Town Engineer and the Town Board recommend a different action, which they did.

The last three arguments asked whether Omro failed to follow the requirements of Wis. Stat. §66.0703.  The Bank argued that because the lots were privately owned, the special assessment was not for public improvement.  This argument missed the point that the roads within the subdivision were public property.  State law provides that all roads or streets shown on a final plat are dedicated to the public unless clearly marked as private, which these were not.  Therefore, the assessments were clearly for a public improvement.

Next, the Bank argued that three of the lots do not receive “special benefits” from the project because they do not abut the newly paved roads and should not be specially assessed because of this. The Bank demonstrated a genuine issue of fact. The circuit court erred in granting summary judgment on this issue.

The court affirmed the decision ratifying the special assessment of the lots that benefit from the road project, but reverse the decision that found that the lots that do not abut the roads received special benefits and remanded that issue to the lower court.

Judge rules MN township must allow Islamic cemetery

A follow up to a story posted here in November: A Dakota County District Court Judge has ordered Castle Rock Township to issue a conditional use permit for an Islamic cemetery.

Agstar Financial Services submitted an application to the township in March 2014 for a proposed Islamic cemetery and funeral home on property it owned.  In June 2014, Castle Rock Township’s planning commission recommended the approval of the application without the plan to build a funeral home on the property; however, the Castle Rock Township board rejected the application in August 2014, expressing concerns of potential loss of a “lot of tax base” and that the property “would not be open to the public for burials.”

When Al Maghfirah Cemetery Association closed on the sale of the property with Agstar, it submitted its own conditional use permit to the township on Nov. 17, 2014, and agreed not to build a funeral home on the property, but three days later, the board of Castle Rock Township denied Al Maghfirah Cemetery Association’s application.

The Dakota County District Court Judge wrote that he wrote that Al Maghfirah Cemetery Association “is entitled to free use of its property, subject to reasonable zoning restrictions….That right was denied to them by the arbitrary decision of the Castle Rock Township Board of Supervisors, which was later framed as a concern over the loss of tax base.”

The full Minnesota Public Radio article is here