Certification of class action appropriate in suit for nuisance, trespass and negligence against grain processor

by Gary Taylor

Freeman, et al., v. Grain Processing Corp.
Iowa Supreme Court, May 12, 2017

Residents who live near Grain Processing Corporation’s (GPC) corn wet milling plant in Muscatine brought an action for nuisance, trespass and negligence against GPC for its manner of operation of the plant and the resulting “haze, odor, and smoke” emanating from the plant.  The residents moved to treat the claim as a class action suit on behalf of all residents suffering the effects of the plant’s operation.  GPC resisted the motion to certify the case as a class action, arguing that the claims of the residents were “inherently individual, and as such, individual issues predominated over those common to the class.”  The district court granted class certification.  Noting its authority to modify or decertify the class at any time, the court divided the class into two subclasses: one for members in close proximity to GPC, and the other for those in peripheral proximity.  GPC appealed.  Certification of the class action suit was the sole issue before the Iowa Supreme Court (in an earlier case, posted here, these same parties litigated the applicability of the Clean Air Act to local claims for nuisance).

Under Iowa Rules of Civil Procedure 1.261 – 1.263 a district court may certify a class action if “the class is so numerous…that joinder of all members…is impracticable” and “there is a question of law or fact common to the class.”  In addition, a class action should be permitted for the “fair and efficient adjudication of the controversy” and “the representative parties fairly and adequately will protect the interests of the class.”  The Court of Appeals first noted that caselaw requires that “a failure of proof on any one of the prerequisites is fatal to class certification,” but also that, at this stage, “the proponent’s burden is light.”  The Court of Appeals does not review the decision to certify the class itself, but simply whether the district court abused its discretion in doing so.

GPC argued that the district court erred because the requirement of commonality was not met, and that in this case individual issues predominate over common questions of law or fact.

Commonality.  It is not sufficient that class members have all suffered a violation of the same provision of law.  Rather, claims must depend on a common contention of an issue that central to the validity of each one of the claims.  GPC argued that the named plaintiffs did not suffer the same injury of other class members; particularly in the types of harm suffered and the degree of proof needed to prove causation.  The district court initially agreed, noting that two of the plaintiffs –the one closest to GPC and the one furthest – suffered significantly different “concentration totals” of particulates tested in the air.  The Court resolved this disparity, however, by creating the two subclasses and grouping the plaintiffs accordingly.  Thus the plaintiffs within each subclass had identified common questions of extensiveness of emissions, what caused them, what precautions were taken, and economic impact.

Predominance.  A common question does not end the inquiry.  Courts consider class actions appropriate “only where class members have common complaints that can be presented by designated representatives in the unified proceeding.”  It “necessitates a close look at the difficulties likely to be encountered in the management of a class action.”  The district court spent considerable time addressing the predominance question in its ruling.  It concluded “While variations in the individual damage claims are likely to occur and other sources of emissions may pose unusual difficulties, common questions of law and fact regarding defendant’s liability predominate over questions affecting only individual class members such that the subclasses should be permitted for the fair and efficient adjudication of the controversy.”  After going through the standards of proof for negligence, trespass, and nuisance claims, the Court of Appeals agreed with the district court that common questions of law, with common evidentiary findings required of each, will predominate the action, and that therefore class action treatment is appropriate.

Class action certification was affirmed by the Court of Appeals.

SF 447 limits nuisance damages against animal feeding operations

Senate File 447, signed into law on March 29th by Governor Branstad, limits the damages that can be awarded to property owners impacted by agricultural operations. This legislation is likely in response to the 2016 Iowa Supreme Court decision in McIlraith v. Prestage Farms, which held that animal feeding operations are not necessarily protected from nuisance suits based on Iowa Code 657.11(2) (Iowa’s right-to-farm legislation). In that case, the jury awarded damages of more than $500,000 for loss of past enjoyment, diminution in property value, and loss future enjoyment of the McIlraiths’ property.

Under SF 447, any nuisances caused by animal operations, which includes both confined and open feed lots, are presumed to be permanent nuisances. This means that plaintiffs cannot file future suits for continued nuisance.

Plaintiffs’ damages in nuisance suits are also limited to combined the total of:

  1. Permanent loss in property value
  2. Medical costs directly caused by the nuisance
  3. Special damages (annoyance and loss of enjoyment) not to exceed one and a half times the total of 1 plus 2

For more information about SF 447 and its passage see this article from the Des Moines Register.

 

 

Awarding title to city under abandonment statute not an unconstitutional taking

by Gary Taylor

Nicol and Street v. City of Monroe
Iowa Court of Appeals, May 3, 2017

Nicol and Street took title to property in Monroe, Iowa by warranty deed in 2013.  Beginning in May 2013, and over the two years that followed, the city sent them five letters regarding their failure to maintain the property.  Nicol and Street failed to take action, and so in April 2015 the city filed municipal infractions against the couple for several violations regarding junk, vehicles, and garbage on the property.  After a hearing in August 2015 the court entered judgments assessing civil penalties, and ordering them to fully abate the violations.  They did not do so.  Additionally, they failed to pay property taxes since purchasing the property, and utilities were not turned on at the property after June 2015.

In January 2016 the city petitioned for title to the property, alleging it was abandoned under Iowa Code 657A.10A.  Nicol and Street moved for dismissal, alleging that the statute is an unconstitutional taking of private property for a public purpose without just compensation.  The court denied the motion, and found at the end of a bench trial that the property met the definition of “abandoned” under the statute.  It entered an order awarding title to the city, and the couple appealed.

Statutes are presumed to be constitutional, and to prove otherwise a petitioner must “negate every reasonable basis upon which the statute could be upheld as constitutional.”  In determining whether the statute is reasonable, courts consider “such things as the nature of the menace against which it will protect, the availability and effectiveness of other less drastic protective steps, and the loss which appellants will suffer from the imposition of the ordinance.”

The Court of Appeals reviewed the procedural safeguards incorporated into 657A.10A, including that the city cannot act less than 60 days from the filing of the petition and must show that the owner did not make a good-faith effort to comply with the order, and concluded that awarding title to the property is a reasonable “final resort against those property owners who have otherwise failed to comply with housing codes, building codes, nuisance laws, or tax assessments when less drastic steps toward compliance have failed.”  It further noted:

Even in the event of a complete taking, the State is not required to compensate a property owner if it can show that the owner’s bundle of rights never included the right to use the land in the way the regulation forbids….657A.10A provides a sanction for those who use their property in a manner that was already prohibited.  Because the statute does no more than duplicate the result that could have been achieved in the courts by adjacent landowners under the law of private nuisance, or by the State [in the case of public nuisances] it is not a constitutional taking for which compensation is required.

Judgment for the city of Monroe.

Untimely Filing Fatal to Appeal of Board of Adjustment Decision

McCleary v. City of Des Moines Zoning Board of Adjustment
(Iowa Court of Appeals, April 19, 2017)

In September 2014, McCleary applied to the Des Moines Zoning Board of Adjustment seeking several conditional use permits and variances to allow him to operate a pet boarding business out of his home. A public hearing was held on September 22. The board voted to deny all of McCleary’s requests on October 23, 2014. On November 25, 2014 McCleary filed a petition for writ of certiorari appealing the board’s decision. Because of constitutional claims, the case was first sent to federal court. On March 11 the federal district court dismissed all McCleary’s federal claims and the case was remanded to state court.

On October 6, 2015 the Board of Adjustment filed a motion to dismiss arguing that McCleary’s petition for a writ of certiorari was late. State law allows for appeals to be filed only in the 30 days after a decision is made final. On November 2, McCleary filed a motion to disqualify the board’s attorney as that same attorney had previously represented McCleary in another matter. The district court determined on December 18 that McCleary’s petition was indeed untimely. The court also concluded that the plaintiff did not provide substantial evidence that his prior relationship with the defendant’s attorney bore “any relationship to the instant matter.” The district court granted the board’s motion to dismiss.

McCleary appealed that dismissal to the Iowa Court of Appeals. They reviewed the district court’s decisions in the areas of the timeliness of McCleary’s appeal as well as whether the board’s counsel should have been disqualified.

Timeliness Iowa Code section 414.15 establishes the right to appeal a decision from a zoning board and provides “[s]uch petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.” Because McCleary filed his appeal more than 30 days after the board made its decision, the district court did not have jurisdiction to hear it. McCleary asserted that his motion for declaratory relief was not subject to the same timeliness requirements as writs of certiorari. The Court of appeals disagrees. “Regardless of the avenue of relief McCleary chose, he was still appealing the decision of the zoning board and was subject to the statutory requirements of such an appeal.”

Disqualifying Counsel Because the attorney representing the board had previously been involved in representing McCleary, he claimed that the attorney should be disqualified.In determining if a prior relationship is enough to disqualify an attorney the court must determine if the two matters are substantially related. To do so, the court examines three factors:

  1. the nature and scope of the prior representation;
  2. the nature of the present lawsuit; and
  3. whether the client might have disclosed a confidence to [their] attorney in the prior representation which could be relevant to the present action.

The attorney described their prior relationship as, “providing a model letter of intent for a business purchase and reviewing a draft of the letter written either by [the former partner] or by Mr. McCleary.” He also stated that he, “did not meet Mr. McCleary in person and recall no further involvement in the transaction.” McCleary claims a connection exists because the prior representation involved the same property on which he eventually attempted to establish his pet boarding business.  The court failed to see how assisting McCleary’s representation in the property transaction would make him privy to any information that would be relevant to this zoning variance request.

On both matters the court of appeals affirmed the ruling of the district court.

Substantial evidence supported ZBA’s denial of conditional use permit for liquor sales

by Gary Taylor

Shop N Save Food v. City of Des Moines Zoning Board of Adjustment
Iowa Court of Appeals, August 2, 2017

Shop N Save applied for a conditional use permit (CUP) that would allow the business to sell wine and beer.  The store in question is located in a C-1 neighborhood retail commercial district in Des Moines.  Previous owners of the store had been permitted to sell liquor, beer, and wine, but the store’s liquor license was suspended for the year leading up to the CUP application, and due to changes in the city’s zoning regulations the new owner was required to seek a CUP to resume alcohol sales.

At the beginning of the hearing on the CUP, city staff presented its report to the Des Moines Zoning Board of Adjustment (ZBA) recommending approval of the CUP subject to ten conditions.  Staff presented the ZBA with letters from local neighborhood associations, as well as police reports from the neighborhood.  Staff noted, however, that the Shop N Save had either been closed or barred from selling alcohol for most or all of the time covered by the police reports.

Counsel for Shop N Save, in his presentation, conceded “there had been problems in the past” with crime around this Shop N Save, but asserted the new owner was willing to work with the neighborhood associations to address those problems.  In responding to the testimony of the neighborhood association representatives that voiced concerns about crime, Shop N Save counsel resisted their recommendations for the imposition of conditions over and above those recommended by staff, and suggested the best course would be to “come up with a plan together.”

ZBA members questioned the legitimacy of the ownership transfer. Shop N Save counsel acknowledged that the store was being run by “a combination of [old and new management] but it’s generally the new management…running the store” and admitted that the official transfer of ownership had not yet occurred.

In a 4-1 vote the ZBA denied the CUP, citing concerns about the ambiguity in the ownership transfer and the problematic history of the location.  Shop N Save appealed this decision to the district court, which affirmed the denial, finding substantial evidence for the ZBA’s decision.  Shop N Save appealed to the Iowa Court of Appeals.

The Court of Appeals highlighted several well-settled points of law concerning the consideration of conditional use permits by zoning boards of adjustment, and by courts reviewing those decisions, that are worth reviewing:

  • A conditional use permit is meant to provide flexibility in what otherwise would be the rigidity of zoning ordinances, while at the same time controlling troublesome aspects of somewhat incompatible uses by requiring certain restrictions and standards.
  • It is the burden of the applicant to show that all the conditions of the ordinance are satisfied.
  • A decision by a zoning board of adjustment enjoys a strong presumption of validity.
  • A board may deny a conditional use permit for reasons relating to public health, safety, and welfare, but generalized or unsupported neighborhood opposition does not, by itself, provide a legally sufficient reason for a CUP denial.
  • If the reasonableness of the board’s action is open to a fair difference of opinion, the court may not substitute its decision for that of the board.
  • An appellate court is bound by the district court’s factual findings if they are supported by substantial evidence in the record. Evidence is “substantial” if a reasonable person would find it adequate to reach the given conclusion, even if a reviewing court might draw a contrary reference.

Shop N Save argued that the ordinance requirement that “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” may not even apply to the sale of beer and wine because the sale of such products is separate from the “physical characteristics of the property.”  The Court of Appeals rejected this argument, finding that the language is broad enough to regulate not only the location, design, and construction of the business but its operation as well.  The Court further found that the ZBA’s denial was based on more than generalized or unsupported neighborhood opposition, and included reliance on specific incidents described in neighbors’ testimonies, and on the dramatic reduction in crime that resulted when liquor sales were ended at a similarly situated convenience store in another neighborhood.  Finally, the Court found the ZBA was well within its authority to consider the pending owners’ “tepid” responsiveness to neighbors’ serious reservations as a signal that past problems were likely to continue into the future, regardless of any conditions the ZBA could impose.

The ZBA’s denial was affirmed.

Appeals Court Rules Osceola Taxpayers Have Standing to Challenge Establishment of TIF District

by Eric Christianson

Brueggeman vs. Osceola
(Iowa Court of Appeals, June 7, 2017)

In the spring of 2015, the City of Harris was ordered by the Iowa Department of Natural Resources to update its aging sewer system and lagoon. Harris, population 170, lacked adequate resources for the project, so the city sent a letter to the Osceola County Board of Supervisors, “asking for help with possibly doing a TIF [Tax Increment Financing district] on the windmills for infrastructure within the City.” The county agreed to help establish an urban renewal area including new windmills located in the county and the sewage lagoon in the City of Harris.

In a meeting on October 20, the board of supervisors passed a resolution to establish the urban renewal area and approve the urban renewal plan. At the same meeting, the board also introduced Ordinance No. 47, which was to establish the TIF district, for its first consideration. On October 27, the board of supervisors gave Ordinance No. 47 its second consideration.

On November 3, the plaintiffs in this case, filed a petition for writ of certiorari and declaratory judgment. The plaintiffs, who are resident taxpayers of Osceola County, alleged that the city and county had “adopted a Resolution that created an urban renewal area that includes the City of Harris and wind energy conversion property […] located outside of the City of Harris[… The] resolution is unlawful because it violates Iowa Code Chapter 403 and the Iowa Constitution.”

On November 10, the board of supervisors held the final consideration of Ordinance No. 47 and adopted it. Then on November 30 the board held a special session and entered into a written urban renewal joint agreement with the City of Harris, “confirming prior verbal agreement and understanding.”

In February 2016 the plaintiffs filed a motion for summary judgment. They alleged that the county had acted illegally in establishing the urban renewal area before the joint agreement had been signed. Additionally, they alleged that the urban renewal area was not an “area” because the wind energy conversion property is not connected to the sewage project in Harris. They claimed that they had standing to sue because they were harmed as taxpayers in Osceola County.

Osceola County and the City of Harris filed a motion for summary judgment, and the district court granted it, finding the plaintiffs lacked standing to challenge the resolution and their claims involving the ordinance were untimely. The final passage of the ordinance took place after the plaintiffs filed their petition. The plaintiffs’ petition was dismissed. On appeal, the plaintiffs challenged the district court’s ruling and maintain that the merits of their motion for summary judgment should have been granted instead.

On June 7 the Iowa Court of Appeals considered the issues of the timeliness of the petition as well as the standing of the plaintiffs.

The taxpayers argued that each of the considerations of the ordinance was a challengeable action. Here, the Iowa Court of Appeals agreed that the plaintiffs’ challenge to the ordinance was untimely. Iowa case law provides that the challengeable action occurs “when the underlying proceeding becomes final.”

With regards to standing, the Court of Appeals agreed with the plaintiffs that as residents and taxpayers of Osceola county they stood to be harmed citing an earlier case that stated: “by its nature, TIF diverts property tax revenue that would otherwise be available to the regular taxing district.” Further the court of appleals found that although the plantiffs were untimely with their challenge to the passage of the ordinance, the plaintiffs did have standing to challenge the earlier resolution. It is reasonable to assume that the passage of the resolution meant that the ordinance would be passed as well.

The Court of Appeals remanded the case back to district court for further proceedings.

When suing county, failure to serve notice on county is not a minor procedural error

by Gary Taylor

Dewit and Dewit v. Madison County Zoning Board and Madison County Zoning Board of Adjustment
Iowa Court of Appeals, September 13, 2017

In March 2015 the Madison County Zoning Office filed civil infractions against the Dewits for several zoning ordinance violations.  The case number assigned to these infractions was CVCV034188.  These infractions were resolved through a consent order in September 2015 which required the Dewits to abate the violations within six months (by February 2016).  After the consent order was issued, the Dewits filed an application for an agricultural exemption from the county’s zoning ordinance, which the county zoning administrator denied.  On appeal, the Madison County Zoning Board of Adjustment (ZBA) affirmed the denial.

On April 20, 2016 the Dewits filed a petition for writ of certiorari challenging the ZBA’s decision; however, they filed it in the civil infraction case CVCV034188.  The county attorney accepted service of the petition, but the original notice was not included in the materials sent to or accepted by the county attorney.  The county moved to dismiss the petition on the ground that the petition should have been docketed as a new action and not as a filing in the civil infraction case.  On June 7, 2016 the district court denied the motion to dismiss, and ordered the clerk of court to transfer the petition and all related filings to the appropriate docket and to assign a new case number to the petition.

The ZBA then filed a motion to dismiss on September 1, 2017 for failure to timely serve original notice on the board.  The next day the Dewits served notice on the ZBA, but this was 135 days from the original filing of the petition on April 20.  (Iowa Rules of Civil Procedure require original notice to be served on a defendant within 90 days of filing a petition).

The Dewits contended that the original notice was served on the ZBA 80 days from the day the district court transferred the petition to a new docket with a new case number; however, at the time the district court specifically ordered that the petition “would relate back to and be deemed to have commenced on the date of filing, April 20.” Thus service of the original notice did fall outside the 90 day window.

The Dewits also contended that the county attorney’s acceptance of the petition alone is sufficient to comply with Iowa Rules of Procedure.  The court rejected this as well.

The original notice and petition are separate and distinct….The contents of the original notice are prescribed by rule.  In contrast, the petition is a pleading that sets forth a simple and concise statement of the claim or claims at issue. [While] it is true Iowa courts are committed to liberal construction of the rules of procedure to insure resolution of disputes on their merits, the failure to timely serve original notice cannot be deemed a minor or technical error.

The district court did not err in dismissing the Dewits’ petition.

Courts Defer to Staff and Board of Adjustment Interpretation of Code

by Eric Christianson

Doss and Huffer vs. Ames Zoning Board of Adjustment
Iowa Court of Appeals, February 22, 2017

The City of Ames received a complaint that Angela Doss and Duane Huffer were building a fence in violation of the city’s zoning ordinance. The fence was 6 feet high and located in their backyard abutting other residential properties. The city determined that the fence was indeed in violation of the following section of code and notified the homeowners in a letter.

The maximum height of fences in any setback abutting a street right-of-way is four (4) feet, except that up to six (6) feet of fence is allowed in any side or rear setback if:

(a) The lot does not abut the front yard of any other residential property along the same side of the street;
(b) The fence is at least (5) feet from the property line abutting a street right-of-way.

-Ames City Ordinance § 29.408(2).

The homeowners appealed staff’s decision to the Ames zoning board of adjustment. The board unanimously denied the homeowners’ appeal. The homeowners appealed to district court alleging:

  1. the Board misinterpreted the ordinance because it was not clear on its face whether the semicolon between (a) and (b) meant “and” (conjunctive) rather than “or” (disjunctive);
  2. the city enforced the ordinance inconsistently, only in response to complaints;
  3. the city’s delay before sending the December letter precluded enforcement on procedural grounds and laches;
  4. the city’s interpretation of the ordinance creates a notice issue in violation of due process; and
  5. the city’s fence ordinance conflicts with Iowa’s partition-fence law.

The district court ruled that the partition-fence issue was not preserved for its review and resolved the four other issues in favor of the board of adjustment.

The homeowners appealed to the Iowa Court of Appeals. The court cited an earlier decision that, “the court may not substitute its decision for that of the board.” The decision of the board of adjustment is given a strong presumption of validity. In all other issues as well, the court affirmed the holding of the district court.

Dangerous Conditions Cause Mobile Home Park to Lose Legal Nonconforming Status

by Eric Christianson

Des Moines v. Ogden
Iowa Court of Appeals, June 7, 2017

Frank Ogden owns and operates a nonconforming mobile home park on the south side of Des Moines. He purchased the property in 2013 from his uncle. The property consists of a narrow u-shaped access road with mobile homes around the interior and exterior of this road. Although the 1953 Des Moines zoning ordinance prohibited mobile home parks in the city, the owner of the property obtained a certificate of occupancy for the mobile home park in 1955. The historical record is not clear, but its use as a mobile home park dates back to some time between 1947 and 1955.

The best record documenting historical use is an aerial photograph from 1963. The photograph depicts “permanent homes that are in close proximity to each other with additional structures attached to the homes.”

Current photographs depict the property as:

[A] congested, dilapidated, and hazardous jumble of structures. Many of the mobile homes are within feet of each other based on the addition of porches, decks, and living space. Residents park cars throughout the property narrowing portions of the already inadequate access road. Bulk trash items—such as tires, boats, and storage bins—are littered throughout the property. Grills, fences, gardens, and children’s toys also crowd the property.

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 the fact that the occupancy permit was issued is proof enough that the property was in compliance with the above regulations at the time that the legally nonconforming use was established. This means that Ogden had the right to continue his nonconforming use subject to the laws in place in 1955 as long as the nature and character of the use as it existed in 1955 is not changed.

The court held that even under the laws in place in 1955, the certificate of occupancy should be revoked as the park poses a threat to “the safety of life or property”. The court also held that, “’use of [the] property has intensified beyond acceptable limitations’ because the conditions ‘pose a real threat in the event of an emergency.’”

Ogden appealed to the Iowa Court of Appeals arguing that the court was wrong to find that the nonconforming use posed a threat to life or property and that the use had been unlawfully expanded. He also argued that estoppel prevents the city from obtaining an injunction.

In addition to procedural questions relevant to this case the Court of Appeals examined the questions of nonconforming use and whether estoppel prevented the city from obtaining an injunction to close the park.

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.” A nonconforming use may continue indefinitely until abandoned, but it may not be “enlarged or extended”. The Des Moines Municipal Code adds that a nonconforming use may lose its protected status if discontinuance is “necessary for the safety of life or property”.

The Iowa Supreme Court has never ruled on whether the addition of structures or the expansion of homes in a mobile home park constitutes and an unlawful expansion of the nonconforming use. Other state courts, however, have found that replacing mobile homes with larger models or enlarging existing mobile homes in violation of setback requirements may constitute an unlawful intensification of the nonconforming use.

The Appeals Court found that:

Although this mobile home park has not changed in size or use, the record demonstrates it has 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.

Equitable Estoppel Further, Ogden argued that equitable estoppel bars the city from closing the mobile home park. The Court Defined equitable estoppel as, “a common law doctrine preventing one party who has made certain representations from taking unfair advantage of another when the party making the representations changes its position to the prejudice of the party who relied upon the representations.”

The court states that to prove estoppel Ogden must demonstrate:

  1. a false representation or concealment of material fact by the city,
  2. a lack of knowledge of the true facts by [Ogden],
  3. the city’s intention the representation be acted upon, and
  4. reliance upon the representations by [Ogden] to their prejudice and injury.

The court found that Ogden’s claim failed under the first element of the test. The city’s failure to enforce the zoning ordinance does not amount to false representation or concealment of material fact. The city does not notify property owners of every infraction. Instead the city’s enforcement is triggered by complaints.

The court affirmed the grant of the city’s request for an injunction against Ogden’s use of the property as a mobile home park.

Chief Judge Danilson partially dissented. He argues that the city failed to prove either that the mobile home part exceeded its original non-conforming use or that it poses a threat to the safety of people or property. In his opinion, there is no conclusive evidence of the condition or number of homes in the part in 1955, and the size and use of the park have not changed. He argues that although the condition of the park has likely deteriorated, there are less dramatic ways to improve conditions in the park.

Further, Danilson argues that there is insufficient evidence to conclude that the park poses a danger to people or property. The city or fire department have not taken any actions based on unsafe conditions, and the fire chief’s testimony was too general to draw any specific conclusions about the park’s safety.

Update: Johnson County Re-Zoning Application Goes Viral

by Eric Christianson

The Johnson County Board of Supervisors voted 5-0 Thursday, September 14, 2017 to deny the rezoning of 63 acres from Agricultural to Agricultural Residential. The board’s primary reasoning was the potential impact of such a large rezoning in a rural part of the county and the impossibility of negotiating a conditional rezoning without approval of the current title-holder. The board encouraged another application after the applicant obtains full ownership of the property.

A video of the board meeting is available here, and read an updated Press Citizen article here.

The original post is below:

An Iowa City resident’s attempt to rezone 63 acres of rural Johnson County has attracted international attention. Grant Schultz manages a 143 acre farm he calls Versaland in northeastern Johnson County. He is seeking the zoning change to allow him to build rental cabins and worker housing in addition to other accessory uses. Staff recommended against the rezoning because of the potential impact of a large land use change in a rural part of the county and the infrastructural improvements that would be needed to support the potential new uses. On August 14 the planning and zoning commission voted 5-0 to recommend to the board of supervisors that the rezoning be denied.

In response on September 8, Schultz created a 25 minute video with the headline “Johnson County Assaults Local Foods“. The video has, as of today, been viewed over 80,000 times and received comments of support from all over the world.

Johnson County has since published a memo refuting many of the points made in the video.

Additionally, Paul Durrenberger and Suzan Erem, founders of the Sustainable Iowa Land Trust, and owners of the property in question have published a blog post of their own entitled, “Grant Schultz: Facts to Consider”. They are opposed to the proposed rezoning.

The Johnson County Board of Supervisors will vote on the rezoning request Thursday September 14, 2017.

For more information read the Press Citizen article about the fight.