Statute of limitations does not bar enforcement of a court decree

By Eric Christianson

TSB Holdings, LLC v. City of Iowa City
(Iowa Supreme Court, June 1, 2018)

In the 1980s Wayne Kempf and his partners purchased six parcels on the north side of Iowa City. Their plan was to build an office building and five apartment buildings on the four-acre tract. After the completion of the office building, they began construction of an apartment building. Following neighborhood protests, the city revoked the building permit and then downzoned the area to single family residential. This lead to a number court fights culminating with a 1987 order by the Iowa Supreme Court, which read in part:

Kempf shall be permitted to proceed with the development of apartment buildings, as shown by the record in this case, to the extent that such buildings conform to the ordinances in effect prior to the 1978 rezoning… The [C]ity shall be enjoined from prohibiting this use of the property by Kempf. Further development or redevelopment of the property beyond that contemplated by Kempf as shown by this record and noted in this opinion, whether carried out by Kempf or future owners, will be subject to the amended ordinances above designated.

Kempf completed one apartment building but did not develop the other properties. Over time Kempf and his partners sold the properties to various other parties. Eventually TSB Holdings purchased all of the properties subject to that order. In January of 2013 TSB Holdings submitted a site plan to the City of Iowa City showing the development of new apartment buildings based on the 1987 court order. The City denied this plan, stating that it did not comply with current zoning.

On April 18, TSB submitted a new site plan, which proposed construction of apartment buildings on only the three lots which had not been developed subsequent to the 1987 Kempf order. The city also denied this plan, viewing it as materially identical to the January 31 site plan. The Iowa City Board of Adjustment also failed to issue a variance to KSB.

TSB claimed that this was a violation of the 1987 court order and appealed the city’s decisions. A district court found in the City’s favor, concluding in part that TSB was not a successor to Kempf and that the order was no longer applicable. TSP appealed to the Iowa Supreme Court.

Among other issues the court examined three questions that were determinative of the case.

  1. Is TSB Holdings a successor of Kempf?
  2. Is the original 1987 court order unenforceable because of the stature of limitations?
  3. Has a use already been established on the properties?

Is TSB Holdings a successor of Kempf?

The district court had found that TSB was not a successor because TSB did not buy the lots directly from Kempf and the lots were sold piecemeal and not as a single package.  The Supreme Court found that in this case those points were irrelevant. The decision ran with the parcels regardless of ownership changes in the meantime.

Statue of limitations/repose

Among the most significant elements of this ruling is the question of whether court orders such as the one issued in Kempf are subject to a time limit. In a recent decision, Dakota, Minnesota & Eastern Railroad v. Iowa District Court, the Iowa Supreme Court interpreted Iowa Code 614.1(6) to say that that court orders are subject to a 20 year statute of repose. Therefore, an action to enforce a judgment more than 20 years after it was entered was untimely.

In this case, TSB argued that 614.1(6) was a statute of limitations rather than a statute of repose. A statute of limitations limits how long after an event causing some harm, the “cause of action,” one can bring a suit. A statute of repose on the other hand would prevent the bringing of a suit if that harm, occurs after a defined time period. The difference is somewhat technical, but here is determinative of the outcome. Does Iowa law say (1) that the court order itself expires after a 20-year period, or (2) does a plaintiff have 20 years to file suit after that court order is violated? Did the clock start ticking in 1987 when this order was issued or in 2013 when Iowa City rejected TSB’s site plan?

The Iowa Supreme Court overruled its own interpretation from Dakota and held that the limitations period in  614.1(6) runs from the date when the “cause of action” occurs. Court orders do not themselves “expire” after 20 years. In this case the “cause of action” occurred in 2013, when the City enforced its current zoning ordinance despite the 1987 court order. Therefore, the case is timely.

Has a use been established?

Another question relevant to this decision concerns which of the lots had been developed and are now subject to the current ordinance. The evidence showed that Lots 10, 49, and 51, had no buildings on them at the time TSB submitted this site plan. Iowa City argued that because of electrical easements and other work that had occurred on at least some of those parcels, they have already been “developed” and the order is moot. They further argued that developing Lots 10, 49, and 51 would require work to be done on the other lots which were clearly already developed and are now subject to current law.

The court was unconvinced that anything less than the construction of a building would be considered development on the affected lots. Further the court ruled that any development that would have to take place on the lots which already have buildings on them would be unaffected by the order. That potential development is therefore outside the scope of this ruling.

 

The Supreme Court overruled the district court’ rulings and held:

  1. KSB is a successor to Kempf and benefits from the order.
  2. The statute of limitations does not prevent the enforcement of the 1987 Kempf decision.
  3. A use had not been established on all of the parcels subject to the decree.

While this decision does clarify some matters of law, the future of this development is not yet settled.

Iowa’s Right-to-Farm law constitutional, but limited in its application

This post is a summary of an article by Kristine A. Tidgren that first appeared on The Ag Docket, from the ISU Center for Agricultural Law and Taxation. See the full version here.

Honomichl v. Valley View Swine, LLC
Iowa Supreme Court, June 22, 2018

 

Iowa’s agricultural nuisance law has perhaps become a little clearer, albeit no simpler to apply. On Friday, June 22, 2018, the Iowa Supreme Court issued a key ruling analyzing the constitutionality of Iowa’s embattled right-to-farm statute, Iowa Code § 657.11(2). The immunity statute at issue, states:

An animal feeding operation, […] shall not be found to be a public or private nuisance […] However, this section shall not apply if the person bringing the action proves that an injury to the person or damage to the person’s property is proximately caused by either of the following:

a. The failure to comply with a federal statute or regulation or a state statute or rule which applies to the animal feeding operation.

b. Both of the following:

(1) The animal feeding operation unreasonably and for substantial periods of time interferes with the person’s comfortable use and enjoyment of the person’s life or property.

(2) The animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation.

The defendants in this case include the owner of two animal feeding operations in Wapello County. The units were constructed in compliance with DNR permits and setback requirement. The plaintiffs are neighboring homeowners who purchased their properties before the units were built. The units began their operations in the late summer of 2013. Several months later, plaintiffs filed their initial nuisance action. The defendants sought summary judgment, arguing that Iowa Code § 657.11(2) granted them immunity from such damage suits. The plaintiffs argued that the statute was unconstitutional, as applied to their case. The district court granted the plaintiffs partial summary judgment on that issue, and the Iowa Supreme Court agreed to hear the interlocutory appeal.

In an earlier decision Gacke v. Pork Xtra, L.L.C. (Iowa 2004), the Court found that while the law itself was a valid exercise of the state police power, it was unconstitutional as applied as it had denied the ability of the plaintiffs to sue for damages. In Gacke the court created the following three part test that courts should use to determine if plaintiffs have the right to sue. The plaintiffs must have:

  1. Received no particular benefit from the nuisance immunity granted to their neighbors other than that inuring to the public in general,
  2. Sustained significant hardship, AND
  3. Resided on their property long before any animal operation was commenced on neighboring land and had spent considerable sums of money in improvements to their property prior to construction of the defendant’s facilities.

 

Fast forward to 2018. Since Gacke, every district court that has faced the question has found Iowa Code § 657.11(2) unconstitutional “as applied.” The district court in Honomichl was no exception. The defendants in this case urged the court to reexamine and overturn the Gacke precedent. The plaintiffs asked the Court to declare the statute facially invalid or unconstitutional under all circumstances.

The Iowa Supreme Court upheld Gacke and clarified the procedure that should now be followed by courts in nuisance cases involving feeding operations. The Gacke factors, the court explained, require a fact-based analysis that will generally require a trial on the merits, or at least an evidentiary pretrial hearing. The Court stated that although it is possible that an as-applied constitutional challenge to the statute could be resolved in pretrial litigation, the proper procedure is as follows:

  • The trial court is to allow the CAFO to plead the affirmative defense, if applicable.
  • Plaintiffs asserting the unconstitutionality of the statute, as it applies to them, must then prove the existence of the three Gacke factors.
  • If the plaintiff is successful, the immunity will not apply.
  • If the plaintiff is unsuccessful in a pretrial hearing held for the specific purpose of determining the as-applied challenge, the plaintiffs may still rely on the other exceptions to the immunity found in the statute: The failure to comply with a federal  or state statute, regulation, or rule OR (1) The animal feeding operation unreasonable and for substantial periods of time interferes with the person’s comfortable use and enjoyment of life or property AND (2) The animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation

 

It is now clear that district courts must engage in significant fact finding before they can declare that granting immunity from special damages to a defendant would violate a specific plaintiff’s constitutional rights. This can’t occur until after a trial or an evidentiary pretrial hearing. As such, the three-prong Gacke test essentially transforms the Iowa statute from an immunity provision into a rewrite of Iowa nuisance law for plaintiffs suing an animal feeding operation.

ISU Extension to Continue to Provide Services of the Institute of Public Affairs

In April, the University of Iowa announced the closure of the Institute of Public Affairs. The Institute had been a resource organization for Iowa’s local governments since 1949. The mission of the Institute of Public Affairs was to provide information and services that assist in maintaining and strengthening the effectiveness of Iowa’s state and local governments.

Iowa State Extension is working with the Iowa League of Cities and former staff from the Institute of Public Affairs to ensure that these important services remain available to local governments. See our local government programming page or brochure for a list of some of the programs and services we provide.

Contact Eric Christianson (ejchr@iastate.edu; (515) 451-5662 for pricing and more information.

Posting unapproved minutes with ZBA decision does not start the clock for purposes of filing appeal

by Eric Christianson

Burroughs v. Davenport ZBA
(Iowa Supreme Court, May 25, 2018)

To operate a daycare in the City of Davenport one must obtain a special use permit from the Zoning Board of Adjustment (ZBA).  In March 2014, the ZBA granted Tiny Tots Learning Center a permit. Tiny Tots closed its doors in late 2014, and in July 2016 a new lessee of the premises, Mz Annie-Ru Daycare Center, opened at the same location. The new day care center supervises more children and is open for longer hours than Tiny Tots was. The Davenport Zoning Administrator determined the special use permit issued to Tiny Tots “run[s] with the land” and the new daycare center would not need to obtain another special use permit.

Burroughs along with other neighbors disagreed and appealed that decision to the Board of Adjustment. On October 13 the ZBA voted 4-0 to uphold the administrator’s decision that the special use permit continued to apply. After that hearing, staff advised the residents that they could file a petition to revoke the special use permit. They did so and on December 8 the board held a public hearing to determine if the permit should be revoked. The BOA voted 0-4 against revoking the permit. Shortly after both of these meetings city staff posted unofficial minutes to the city’s website; however, they were not officially approved until the subsequent meeting of the ZBA.

On January 25, Burroughs along with five other residents appealed these decisions to District Court claiming that the ZBA had acted improperly in refusing to revoke the permit. The City filed a motion to dismiss the case, asserting that the petition was untimely because it was not filed within thirty days of the challenged decisions.

Iowa Code 414.15 states:

Any person […] aggrieved by any decision of the board of adjustment […] may present to a court of record a petition […] Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.

The district court granted the City’s motion. Considering the posting of the minutes online to be the “filing of the decision.” Because the minutes of the December 8 meeting were posted on December 19th. The appeal on January 25th was untimely.

The court concluded that the:

“thirty-day time period begins to run from the time the appealing party has either actual knowledge or is chargeable with knowledge of the decision to be appealed.”  Because it was “undisputed” that plaintiffs attended both the October 13 and the December 8 meetings, they had actual knowledge of the Board’s decisions as of those dates: “[T]he Court cannot hold that they did not have actual knowledge or chargeable knowledge of the decision which they witnessed firsthand.”

 

Burroughs and the other plaintiffs appealed this dismissal.

The Iowa Supreme Court considered four possibilities of when the decision was “filed” in this case:

  1. The time that the decision is made in a public meeting wherein the parties gain “actionable knowledge.”
  2. When the unofficial minutes of the meeting are posted to the city websites.
  3. When approved official minutes have been posted online.
  4. When a signed physical document is present in the offices of the BOA and available for public inspection.

Both parties had an initial and fallback opinion. The city argued that the decision was “filed” at the meeting when the vote was taken and the parties were aware of the action. If that was not accepted, then they argued that the posting of the unofficial meeting minutes online should be considered filing the decision.

The plaintiffs argued principally that that for a decision to be filed it had to be a physical signed document including findings of fact and available for public inspection at the board’s offices. By this argument neither the October 13th decision nor the December 8th decisions had ever been properly filed and thus could still be appealed. If the court did not accept this argument, then they argued that only the posting of the approved minutes online could be considered “filing.” This fallback position would only preserve the December 8th refusal to revoke the permit for appeal as the approved minutes containing that decision were not posted until January 6th.

The court gave a few principles that can be used to determine when a ZBA decision has been filed and, therefore, how long plaintiffs have to appeal.

First, a decision cannot be simply oral.  It must exist in some documentary form. Simply having knowledge of what the decision is is not sufficient.

Second, the decision can be filed in electronic rather than paper form. The plaintiffs in this case tried to argue that a public document must be physical. The court disagreed indicating that in fact most of the Court’s own documents exist only digitally.

Third, a document has been filed in the “office of the board” when it has been posted on the board’s publicly available website that the board uses as a repository for official documents. The “office of the board” does not have to be a single physical location as long as the documents are accessible to the public.

Finally, the thirty-day period is triggered when the board posts the decision on its public website.  However, what is posted must be an actual decision.  Proposed minutes that have not yet been approved do not constitute a decision, but approved minutes do.

The Supreme Court of Iowa reversed the District Court’s dismissal of the December 8th ZBA decision. The case is remanded back to district court for further proceedings on the legality of that decision.

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 details can be found here.

The Nuisance Abatement Conference is currently sold out. If you would like to be added to the wait list, please contact Shannon Busby at shannonbusby@iowaleague.org or (515) 244-7282. Any openings will go to those on the wait list on a first-come, first-serve basis.

Agenda

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 bdas@iastate.edu.

 

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.

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