Iowa County Annual Fiscal Condition reports for FY 2015 released

Iowa Government Finance Initiative County Annual Fiscal Condition reports, FYE 2015 released

The Community and Economic Development (CED) unit of ISUEO has released the Iowa Government Finance Initiative (IGFI) Annual Fiscal Conditions report, Fiscal Year Ending (FYE) 2015 for the 99 counties in Iowa. In addition to including the updated revenue and expenditure data for all the counties in Iowa for FYE 2015, the report also includes select county level socioeconomic data released by the U.S. Census data earlier this year.

The IGFI reports are a valuable resource to communities in Iowa, especially those that are small and primarily rural in nature to learn about the economic, demographic and fiscal changes taking place and potentially use them as they plan for their future. The FYE 2014 and 2015 county reports can be accessed by clicking on the ‘county reports’ tab at http://igfi.extension.iastate.edu/.

IGFI is the public finance outreach program from ISU Extension and Outreach that provides resources and works with Iowa local governments on a host of issues including finance and community economic development. The team working on county reports consists of Biswa Das, Cindy Kendall, Liesl Eathington, Chris Seeger, Bailey Hanson and Sandra Burke. Questions on the report can be sent to Biswa Das at bdas@iastate.edu or Cindy Kendall at ckendall@iastate.edu.

Iowa Supreme Court broadens application of Open Meetings Act by including “agent or proxy” of public body

by Gary Taylor and Hannah Dankbar

Hutchison, et al., v. Douglas Shull and The Warren County Board of Supervisors
Iowa Supreme Court, March 18, 2016

On March 4, 2014 the Warren County Board of Supervisors held a public meeting to unanimously approve an annual budget that included all county employees’ salaries, with raises.  Before, during, and after that time, however, members of the Warren County Board of Supervisors met with the County Administrator individually to discuss a restructuring of county government, which included the termination of a number of employees.  These meetings went as far back as January 2014.  On March 25 and 26 the County Administrator, one Board member and the County Attorney met with each employee who was terminated to give them notice of the restructuring and offer them a severance package, the details of which had been worked out through the individual conversations between the County Administrator and the Board members.

On April 16 six employees who were eliminated brought suit the employees who were eliminated brought suit against the County, claiming that the Board, the County, and the individual supervisors violated Iowa’s Open Meeting Law.  Then, on April 18 the Board provided notice for their next meeting which included consideration of the restructuring and the severance agreements. The meeting that day lasted about 20 minutes- the Board passed both resolutions and did not allow for public comment.

The Warren County District Court found that because a majority of the Board of Supervisors was never together in one place to discuss the restructuring, the Board did not explicitly violate Iowa’s open meetings law.  The Board members had testified, however, that they understood the law and used the various one-on-one meetings between the Administrator and the individual supervisors to work around it.  The terminated employees appealed to the Iowa Supreme Court.

The Supreme Court first reiterated that ambiguities regarding the Open Meetings Law (OML) should be resolved in favor of openness.  To do so it found it necessary to resort to common law rules of “agency” to interpret OML.  “To do otherwise would undermine the clear purpose of the statute.”  After examining the common law, the Supreme Court determined that the relevant statutory definition of “meeting” in the OML should be effectively read to now say:

“all in-person gatherings at which there is deliberation upon any matter within the scope of the policy-making duties of a governmental body by a majority of its members, including in-person gatherings attended by a majority of the members by virtue of an agent or a proxy.”

Deliberation is the province of elected bodies.  An elected body cannot use agents to deliberate.  The Court was troubled by the use of the County Administrator to “conduct ‘shuttle diplomacy’ [which] worked so well they managed to implement the restructuring…without deliberating a single detail of the reorganization during a public meeting.”

The Supreme Court remanded the case back to the trial court in light of their revised interpretation of “meeting” in the OML.  It directed the district court to determine whether an agency relationship legally existed between the County Administrator and one or more of the Supervisors.

Three justices dissented, raising the following points:

  • The decision could have unintended consequences for well-meaning government actors. It arguably overrules a 35-year old case in which the Iowa Supreme Court rejected the idea that serial phone conversations with less than a majority of a board could violate the open meeting law.
  • The Iowa legislature twice considered, but failed to pass, legislation that would have addressed serial gatherings of elected officials. This is evidence that they did not intend to include such gatherings within the meaning of the existing statute.
  • Other jurisdictions have “resoundingly rejected” the majority’s interpretation of a “meeting.”
  • The interpretation will chill necessary and appropriate private consultations by public officials that precede open meetings.
  • The majority’s new agency theory rests on a legal fiction that treats the county administrator as a supervisor.

 

Prestage Farms CAFO in Poweshiek County not protected from nuisance suit by Iowa Code

by Gary Taylor

Patricia McIlrath v. Prestage Farms of Iowa, LLC
Iowa Court of Appeals, November 23, 2016

The McIlraths purchased their farm in rural Poweshiek County in 1971.  Their son and his family also live on the farm, in a house about 300 feet from the original farmhouse where Patricia and her husband live.  In 2012 Prestage Farms built an animal confinement facility (CAFO) for 2,496 hogs about 2,200 feet from the McIlrath’s home.  In July 2013, the McIlraths brought suit against Prestage, claiming the odor from the CAFO constituted a nuisance.  Prestage requested summary judgment prior to trial, claiming immunity from the suit based on Iowa Code 657.11(2) (Iowa’s right-to-farm legislation), but the Poweshiek District Court granted summary judgment in favor of the McIlraths on this point, finding section 657.11 to be unconstitutional based on the Iowa Supreme Court’s ruling in Gacke v. Pork Xtra.  The Court found, even if the statute was not unconstitutional based on the facts of the case, the statute would not provide immunity to Prestage Farms if (1) the CAFO unreasonably and for substantial periods of time interfered with the person’s comfortable use and enjoyment of the person’s life and property, and (2) the CAFO failed to use existing prudent generally accepted management practices reasonable for the operation.  The jury returned a verdict affirmatively determining that both points were met by the evidence.  It awarded damages of $100,000 for loss of past enjoyment, $300,000 for loss of future enjoyment, and $125,000 for diminution of property value.  Prestage appealed.

The Court of Appeals first examined Prestage’s claim that Iowa Code 657.11 in fact confers immunity from nuisance claims in the present case.  The court focused on the following passage from Gacke:

Property owners like the Gackes bear the brunt of the undesirable impact of this statute without any corresponding benefit.  Moreover, their right to use and enjoy their property is significantly impaired by a business operated as a nuisance, yet they have no remedy.  Unlike a property owner who comes to a nuisance, these landowners lived on and invested in their property long before Pork Xtra constructed its confinement facilities.  Under these circumstances, the police power is not used for its traditional purpose of insuring that individual citizens use their property “with due regard to the personal and property rights and privileges of others.”  [citation omitted].  Instead, one property owner—the producer—is given the right to use his property without due regard for the personal and property rights of his neighbor.  We conclude that section 657.11(2) as applied to the Gackes is unduly oppressive and, therefore, not a reasonable exercise of the state’s police power.  Accordingly, the statutory immunity violates article I, section 1 of the Iowa Constitution and may not be relied upon as a defense in this case.  We express no opinion as to whether the statute might be constitutionally applied under other circumstances.

The Court of Appeals concluded that in all relevant aspects, the factual situation in the present case was substantially similar to that presented in Gacke, making 657.11 unconstitutional in the present case.  There was no evidence McIlraths received any benefit from the statute, and they lived on and made improvements to their property long before the CAFO was built.

Prestage claimed several irregularities in the trial proceedings warranted a new trial; however, the Court of Appeals rejected all Prestage’s claims. Similarly, the court rejected all claims of Prestage that the evidence submitted at trial was insufficient to support the jury’s conclusion of liability and award of damages.

Creek stabilization plan went beyond scope of original drainage easement

by Hannah Dankbar and Gary Taylor

Hamner v City of Bettendorf
Iowa Court of Appeals, October 12, 2016

Property owners in the Rolling Meadows subdivision complained that the City of Bettendorf overstepped their powers when they used a 25-foot “utility and drainage easement” established in 1968 for a stream bank stabilization project in 2015. Property owners claimed that the use of the 25-foot easement for stream bank stabilization constituted a taking and argued that they should be compensated for the land. The City did not offer any compensation for the removal of trees, change in land elevation, or the regrading of the property owners’ land.

The City argued that it was in the public interest to stabilize the creek, and that the easements granted in 1968 contemplated the type of work conducted by the City in 2015; thus the landowners were not entitled to compensation.

The district court ruled in favor of the landowners because the 1968 easement was granted to maintain the sanitary sewer, storm sewer, Stafford Creek drainage, and utility poles. The court determined that stabilizing the creek overstepped the City’s powers.  The City appealed.

On appeal, the Iowa Court of Appeals used a three-part test to evaluate the scope of the easement: 1) the physical character of past use compared to the proposed use; 2) the purpose of the easement compared to the purpose of the proposed use; and 3) the additional burden imposed on the servient land by the proposed use.

Physical character of past use compared to the proposed use. The City planned to remove all trees and foliage, install a retaining wall on one side of the creek, and place twenty-five tons of rocks along both sides.  The court concluded that this work would substantially change the physical character of the past use of the properties.

Purpose of the easement compared to the purpose of the proposed use.  The court found that while the proposed work did pertain to drainage in a general sense…the purpose of the project was to reshape Stafford Creek and the surrounding creek bed to cure past erosion and prevent future erosion.

Additional burden imposed on the servient land by the proposed use. The landowners presented estimates from a consultant of the loss of value of their properties ranging from $27,500 to $30,250.  This suggested a burden way beyond that contemplated by the original easement

The court determined that the original grantors of the easements did not “contemplate the expansive use of the easement now sought” by the City, and that the radical changes to the land demanded compensation to the landowners under Article I, Section 18 of the Iowa Constitution (the Takings Clause).

 

 

 

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.