Pursuing permits establishes use under CUP

by Allison Arends

Buser, et. al., v. Johnson County Board of Adjustment
(Iowa Court of Appeals, December 31, 2008)

Pursuing necessary permits and contracts sufficient to establish use within time period required by ordinance.

Stone Hills, L.L.C. was granted a conditional use permit to establish a facility for the production of compost manufactured soil.  When the Johnson County Zoning Administrator later issued Stone Hills a permit to begin production Raymond Buser and other property owners objected on the grounds that Stone Hills did not establish the permitted use within a year after the conditional use permit was granted as required by the Johnson County zoning ordinance.[1]  In the time period between granting the conditional use permit and the commencement of production Johnson County had amended the zoning ordinance to add an “Agricultural, Solid Waste Disposal and Environmental Resource Reclamation District” to “provide areas within Johnson County where it is appropriate to site and operate sanitary landfills and composting facilities.”   The property owners argued that because Stone Hills had not established its production within the required timeframe, the use was a violation of the zoning code because it was now taking place on property that was not zoned for composting facilities.  The Johnson County Board of Adjustment denied the property owners’ appeal of the zoning administrators action, and the district court affirmed the Board of Adjustment’s decision.

On appeal, the Court of Appeals affirmed the district court, quoting from the lower court’s opinion that found “steps were being taken [by Stone Hills] to comply with the conditions of the conditional use permit….[It] had secured necessary permits; was in the process of securing other necessary permits; was in the process of finalizing agreements necessary to engage in the composting process; and had been delayed by outside forces in its attempts to get the composting facility up and running.”  This, the court determined, was sufficient to establish of the use within one year as required by the ordinance. 

[1] Article 8:1.20(II)(5)(c) of the Johnson County code reads:

1.  A use for which a Conditional Use Permit is granted must be established within one (1) year after such permit is issued.  If such use is not so established, the Conditional Use Permit shall be deemed to have expired and shall be null and void.

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