Year: 2009

Commentary on Francis v. Bremer Co.

Gary Taylor

by Gary Taylor

Twice this month the Iowa Court of Appeals has taken up the issue of the role of the comprehensive plan in zoning decision-making.   While the month started with promise, I am afraid the cause for planning will end the month worse for the effort.   At the risk of overstating the importance of either case, I wanted to dig deeper into both cases than the summaries I previously provided in this blog. 

In the first, Norton Trust v. City of Hudson, the court was asked to invalidate a decision by the Hudson city council to rezone a parcel from agricultural to residential.  The challenge was raised by nearby landowners.  The landowners protested that the city council did not adequately consider all the elements listed in Iowa Code 414.3 (protection of agricultural land, protection from wind and water erosion, lesson congestion in the streets, “secure safety from fire, flood, panic and other dangers,” etc.).  Recognizing that “it is clear that not all the elements listed apply to every zoning decision, or the decision before us,” the court asserted that “a primary consideration of the statute is that zoning must be in accordance with a comprehensive plan.”  The court validated the city council’s decision, largely based on the fact that the plan designated the land for future residential use.  The plan took into account the changing character of the area in question and the need for an orderly transition from agricultural to residential along a stretch of Highway 58 subject to considerable development pressure already.  As a result, the rezoning was consistent with many of the land use goals stated in the plan. 

Edward Sullivan, a Portland attorney who has written extensively on the role of the plan in land use regulation, would no doubt describe Iowa courts as following the “planning factor” rule; that is, consistency of a zoning decision with the comprehensive plan is one factor Iowa courts consider when evaluating the legality of the decision.   The difference among “planning factor” states is in the weight each court gives to the plan relative to other factors.  Having the Court of Appeals characterize consistency with the plan as “a primary consideration” was an affirmation of the important role of planning in local decision-making.   

Just two weeks later, the Court of Appeals effectively took it back.  In Francis v. Bremer County, the court was asked to invalidate a decision by the Bremer County board of supervisors to deny a rezoning from agricultural to residential.  Like the property in the Norton Trust case, this land was along a paved roadway in a developing residential area.  The CSR of the property did not meet the threshold set out in the county’s three-year-old comprehensive plan for designation as prime agricultural land.  For these reasons, the county’s comprehensive plan identified the area for future residential growth.  Despite all these factors, the county planning commission recommended denial of the rezoning to residential, and the board of supervisors followed the commission’s recommendation.  The supervisors rationalized their denial by reciting  “several factors…be they CSR, environmental, quality of life issues, safety concerns, roads,” and “keeping ag land ag.”  The planning and zoning commission’s justification for its recommendation perhaps provides a more truthful picture of the dynamics of the situation, citing

“citizen concerns about current water supplies, runoff, number of drives along 190th street, increased traffic, a possible sink hole in the area, productivity of the land, quality of life, septic system drainage, and not wanting more neighbors.” [italics added]

One supervisor observed “I think all of the factors…have to be weighed…before a decision can be made.”  In my opinion, the problem with the board’s decision is that all these factors were indeed given careful consideration during the planning process.  In developing the plan a threshold CSR of 50 was set for designating land as prime agricultural land, and this property (albeit close at 49.5) did not meet that threshold.  Impacts of development on local roadways, water supplies and water quality were no doubt also considered.  Upon weighing these factors three years earlier, the county adopted a comprehensive plan that envisioned residential development in the area in question.  The questions raised by the planning and zoning commission and the board of supervisors already had been asked and answered.

A plan can be used to buffer elected officials from stiff opposition in situations like this, but sometimes elected officials will give in to the neighbors who “do not want more neighbors.”  It then falls to the court to see that the local government sticks to its own policies.   The court is to give due deference (the benefit of the doubt) to local zoning decisions.  Making the plan a “primary consideration” in judging the validity of a zoning decision actually makes the court’s job easier.  If the elected body can show how its decision is consistent with its plan, the court can assume that careful consideration was given to the situation at an earlier time, and re-evaluation of the circumstances is not necessary.  A decision inconsistent with the plan, on the other hand, should be cause for second-guessing. 

Unfortunately the Court of Appeals failed in this case to seek shelter under its earlier ruling, giving deference where deference was not due.  It apparently felt the need to find a way to support the county board’s decision, and in so doing it reduced the comprehensive plan from “a primary consideration” to something much less.  It cited with approval the district court’s statement that 

“Just because a land owner demonstrates that a proposed use is consistent with a comprehensive plan does not mean, ipso facto, that the land owner is entitled to the zoning change….It remains for the board of supervisors to determine when, if at all, growth consistent with the comprehensive plan should occur.” [italics added]

I have trouble with this statement for a number of reasons.  I imagine it could become a favorite of attorneys representing anyone taking a position on a zoning decision that is inconsistent with the comprehensive plan.  I first take issue with “when,” for in the context it was used it implied that the timing for this development was somehow not right.  In the abstract, the timing of growth is a legitimate concern; however, none of the concerns raised by the neighbors and cited by the supervisors in this case had anything to do with the timing of the development.    The plan itself did not suggest that time or other precedent events stood in the way of present development in that area.  The soils were not going to become more productive over time, nor were water supplies going to increase (in fact it was conceded that the wells of the new development would be drawing from a different aquifer than those of existing houses).  Again, all these factors were no doubt taken into account during the planning process, with the result being a decision to designate the area presently appropriate for residential development. 

Second, a decision that growth consistent with the comprehensive plan should never occur (in the court’s words, “if at all”) is, ipso facto, inconsistent with the plan.  Timing is one thing – growth consistent with the plan may not come for years – but a decision not to allow growth contemplated by the plan disregards the vision of the community set out in the plan is another.   The elected body should be able to point to some compelling reasons for ignoring the plan even if the plan itself isn’t a “primary consideration.”  Again, the justifications for denial cited by the commission and the board were carefully considered in the development of the plan, and opposite conclusions were reached.  It does not appear from the record that circumstances had changed sufficiently in the three years from plan adoption to this decision to justify disregarding the previous work. 

Again, I do not want to overstate the importance of the Francis case.  It is easy enough to chalk it up as a bad decision based largely on its facts, but the effort the court put into defending the action of the board of supervisors is troublesome, and the language it used to do so undercuts the relevance of the plan.  On October 7, the plan was a primary consideration in assessing the validity of a zoning decision.  Unfortunately, the court’s decision on October 21 supported the notion that a primary, and justifiable, consideration in making a zoning decision is the amount of heat the decision-makers are feeling in the public hearing.

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Consistent with a plan, but not enough – not now

Gary Taylor

by Gary Taylor

Francis, et.al. v. Bremer County Board of Supervisors
(Iowa Court of Appeals, October 21, 2009)

Showing of consistency with the comprehensive plan does not result in an automatic right to rezoning. 

J.D. Francis purchased approximately 35 acres north of Waverly, Iowa.  The land was zoned agricultural but most of it was designated for future single-family residential use by the Bremer County comprehensive plan.  Approximately four acres of the property was designated as “prime agricultural land” under the plan with a Corn Suitability Rating (CSR) above 50. 

Francis sought to rezone the non-prime agricultural land for residential development.  This land had a CSR of 49.5.  The Bremer County Planning and Zoning Commission found that the land was in a “planned growth area” under the plan, but nonetheless recommended denial of the rezoning request, citing citizen concerns about “current water supplies, runoff, number of drives along 190th Street, increased traffic, a possible sink hole in the area, productivity of the land, quality of life, septic system drainage, and not wanting more neighbors.”  The Bremer County Board of Supervisors followed the Commission’s recommendation and denied the rezoning.  Francis sued.

Francis asserted that the board of supervisors acted illegally in rejecting their rezoning petition because the land for which they sought rezoning had a lower CSR than the comprehensive plan’s rating for prime agricultural land, and was in an area designated for residential growth; i.e., that the requested rezoning was consistent with the comprehensive plan.  While agreeing with the general proposition that a county with a comprehensive plan must abide by that plan when making zoning decisions, the Court of Appeals also stated that “strict adherence to the statements [in a comprehensive plan] could actually negate other objectives of the plan.”  Citing the district court’s decision affirming the rezoning denial, the court stated,

“Just because a land owner demonstrates that a proposed use is consistent with a comprehensive plan does not mean, ipso facto, that the land owner is entitled to the zoning change….It remains for the board of supervisors to determine when, if at all, growth consistent with the comprehensive plan should occur.”

While the Court of Appeals admitted that the reasons for the denial stated in the record were “sparse,” it nonetheless determined that the comprehensive plan did not mandate a residential designation for land with a CSR of less than 50.  The plan does state that the county will “strive to preserve agricultural land, placing emphasis on” areas with a CSR of 50 or greater.  The plan lists other factors for consideration aside from agricultural land protection, such as the “protection of environmental features and sensitive areas” and the “quality of life.”

Justice Miller filed an opinion concurring in the result, but finding fault with the majority’s reasoning.  He particularly took issue with the fact that the board of supervisors, almost simultaneously, approved a similar rezoning request for a tract of land known as the Lakefield Estates Subdivision.  Justice Miller compared several relevant factors among the two requests:

(1) the comprehensive plan designates the Francis tract for future residential development, but identifies the Lakefield Estates tract as one that should remain agricultural;
(2) the Francis tract has a CSR of less than 50, while the Lakefield Estates land has a CSR greater than 64;
(3) the Francis tract has numerous nearby residences, while the area surrounding the Lakefield Estates land remains predominately agricultural;
(4) the Francis tract is adjacent to a blacktop highway, while the Lakefield Estates tract does not have direct access to a paved road;
(5) the Lakefield Estates tract is in a floodplain, while the Francis tract is not.

Nevertheless, Justice Miller concurred in the result despite the fact that the board’s two decisions “may be difficult or impossible to reconcile….It may be the board’s approval of the Lakefield Estates…rezoning…and not its denial of the Francis request, that arguably violates the comprehensive plan.”

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Council is proper party in claim of illegality of zoning amendment

Gary Taylor

by Gary Taylor

Rude v. City of Mapleton Board of Adjustment
(Iowa Court of Appeals, May 29, 2009)

Claim that zoning amendment is inconsistent with comprehensive plan must be brought against city council within 30 days of council decision.

In 2006 Long Lines Wireless applied for a special use permit to construct a cell tower on land it intended to purchase in Mapleton.  A public hearing was held by the Mapleton board of adjustment, at which Ronald Rude voiced objections, stating that the city zoning ordinance did not permit cell towers.  Long Lines withdrew its application.  The planning and zoning commission later recommended text changes to the ordinance to accommodate cell towers, and in June 2007 the city council adopted those changes.  Long Lines resubmitted its application and in November 2007 the board of adjustment issued a special use permit.  Long Lines completed construction of its tower in December 2007.  In the same month, Rude filed a writ of certiorari claiming the board of adjustment’s actions in granting the special use permit were illegal.  The district court dismissed the claim, and Rude appealed.

Rude raised two objections: (1) that the zoning amendments were adopted by the city council without consideration of the city’s comprehensive plan, and (2) that the special use permit granted Long Lines permission to violate the setback and frontage provisions of the zoning ordinance.

The Court of Appeals dispensed with Rude’s first claim by noting that Rude did not raise the issue at the special use permit hearing before the board of adjustment.  “An issue must first be presented to the agency [in this case, the board of adjustment] in order to be preserved for appellate review.”  The court also noted that the lawsuit was brought against the board of adjustment, not the city council.  The council was the legislative body that amended the ordinance.  To attack the legality of the ordinance it would have been necessary for Rude to file his action within 30 days of the city council’s adoption of the zoning ordinance amendments.

On the second claim, the Court of Appeals found that Rude was misinterpreting the city’s zoning ordinance with regard to the application of the setback regulations.  The amendments adopted in June 2007 were specifically applicable to cell towers, and the setback provisions in those amendments clearly supplanted those to be applied to other uses.

The Court of Appeals affirmed the district court’s decision in favor of the city.

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Iowa C.A. says one-bedroom B and B “smallest of small” home occupations

Gary Taylor

by Allison Arends

Meduna v. City of Crescent
(Iowa Court of Appeals, December 17, 2008)

One-bedroom bed and breakfast fits within definition of “small home occupations” in Crescent, Iowa zoning ordinance.

In 2004 the Medunas purchased a home in the Loess Hills Scenic By-way in the city of Crescent, and established a single room bed and breakfast in 2005. The Medunas purchased the home with the intention of setting up the bed and breakfast.  Under the City’s R-1 Residential Single Family Dwelling District, “small home occupations” are a permitted use.  The ordinance does not define “small home occupations.”  The Medunas were under the impression that their one room bed and breakfast would fit within the definition of small home occupations under the R-1 zoning district. 

Thirty-four of the Meduna’s neighbors signed a petition against the bed and breakfast arguing that it would cause increased traffic, and reduce privacy and security of the neighborhood.  The city council found the bed and breakfast in the R-1 zone to be a municipal infraction.  The Medunas filed for declaratory judgement, asking the district court to enter a decree finding the ordinance does not prohibit them from operating their bed and breakfast or, to find the ordinance unconstitutional. 

The district court found that the small bed and breakfast did not meet the requirements of the “small home occupation” exception, based largely on the fact that the R-3 Residential District in the city’s zoning ordinance specifically allows ‘Rooming Houses’ and ‘Tourist Houses,’ which would allow the Medunas’ bed and breakfast.  The Medunas were ordered to cease and desist operation of their bed and breakfast. 

The Court of Appeals reversed.  Because the zoning ordinance fails to specify the meaning of “small home occupations,” the Court of Appeals sought to apply the “common and ordinary” meaning of the term.  The dictionary defines “small” as “limited in scope or degree”, “home” as “a dwelling place,” and “occupation” as “an activity or pursuit in which a person is engaged; especially a person’s usual or principal work or business.”  Under these definitions the Court of Appeals found that the Medunas’ use of one bedroom and its attached bathroom of their house for a bed and breakfast is the “smallest of small” home occupations, and should be permitted under the R-1 zoning ordinance.

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Iowa C.A. adjudicates easement rights of Mississippi River frontage owners

Gary Taylor

by Gary Taylor

Clancy v. Jessen
(Iowa Court of Appeals, October 7, 2009)

Landowner may grant easement rights beyond prior deed restrictions so long as they do not impair existing rights of other easement holders.

In 1964 the Kelloggs acquired 2.07 acres of property north of the city of McGregor that included 198 feet of riverfront along the Mississippi River.  The property was bisected by railroad tracks.  Three years later they subdivided the property into 17 lots.  Lot 17 had the entire 198 feet of riverfront, but the Kelloggs platted drives so that the other 16 lots were given vehicular access to the riverfront via Lot 17.  The 10 lots west of the railroad tracks were sold over the years – purchasers coming to be known as West Enders – with the following language granting the easement:

“Grantors convey easement to use platted drives, and to travel access and use over and across Lot 17 of Kellogg’s Subdivision, to Mississippi River, and use of riverfront adjacent thereto.”

The 6 lots east of the tracks were sold – purchasers coming to be known as East Enders – with the same language, and also included the following notation:

“Grantors further agree that no buildings of any type shall be allowed on said Lot 17.  Permission granted to grantees to install 3 docks for 3 boats on said Lot 17.” 

Eventually 3 docks were built with room for multiple boats.  Historically, both East Enders and West Enders docked boats at those docks. 

The Kelloggs sold Lot 17 in 1986.  In 2007 several lot owners proposed several new dock plans to the Army Corps of Engineers, who must review and approve such plans on the Mississippi River for navigability.  The Corps approved a plan that provided for one large community dock in the middle of Lot 17 that would accomodate the boats of all West Enders, and two smaller new docks.  The plan left two of the existing docks in place. 

Two East Enders brought suit to stop development of the new dock plan, arguing that only the  deeds of the East Enders granted permission for boat docks, and that the West Enders’ deeds granted no such rights.  The Court of Appeals disagreed.  The East Enders’ claims must fail, reasoned the court, if the docking priviledges granted to the West Enders do not impair the East Enders’ easements rights.  The owner of Lot 17 may elect to confer on the West Enders more benefits than they are entitled to, but that is not concern of the East Enders unless their rights are adversely affected.  The granting of rights to East Enders to install “3 docks for three boats” did not give them rights to have their docks in a particular location on Lot 17.

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Wisconsin wind energy facility law preempts county ordinance

Gary Taylor

by Allison Arends

Ecker Brothers v. Calumet County
(Wisconsin Court of Appeals, July 15th, 2009)

Wisconsin state statute concerning wind energy systems preempts county permitting scheme. 

The Ecker Brothers, who had one working wind turbine on their farm already, wanted to build more wind turbines on their farm property in order to generate energy to sell back to the power company. In order to do so, the brothers needed to obtain a grant. The grant required the Calumet County and the Town of Stockbridge to provide an acknowledgement letter stating that the Ecker Brothers did not need a permit to build wind turbines.  The Town sent a letter but the County did not.  The County instead passed a wind turbine ordinance which categorized wind turbines as either small or large systems, and established across the board regulations for each.  Under this ordinance the Ecker Brothers were required to apply for a permit illustrating that their wind turbine projects met the ordinance’s restrictions.  The Ecker Brothers filed a declatory judgment action in which they stated that the county exceeded its authority under Wis. Stat. 66.0401.  The circuit court agreed with the county, and the Ecker Brothers appealed.

The issue before the Wisconsin Court of Appeals was the extent to which political subdivisions in Wisconsin have the authority to regulate wind energy systems.  Wis. Stat. 66.0401 specifically states that no city, county, town or village may place any restriction on a solar or wind energy system unless the restriction satisfies one of the three following conditions: (1) it serves to preserve or protect the public health or safety; (2) it does not significantly increase the cost of the system or significantly decrease its efficiency; or (3) it allows for an alternative system of comparable cost and efficiency.  The statute also specifically states that political subdivisions can grant permission to trim vegetation causing interference with wind or solar systems, as long as the vegetation was planted after the placement of the energy collection unit.  Calumet County’s ordinance set minimum setback, height and noise requirements for any wind system locating in Calumet County. 

Noting that the intent of the state statute was to favor wind energy systems, the Court of Appeals considered Calumet County’s across the board regulation of all wind energy systems to be a “one size fits all” method of control that was preempted by state statute.  Although the county argued that its ordinance did not violate the state statute because all of its restrictions conform with the three exceptions stated within Wis. Stat. 66.0401, the Court instead viewed the county’s determination that in all cases setback, height and noise limitations were necessary to preserve public health, safety and welfare to be an impermissible intrusion into legislative policy-making.  Wis. Stat. 66.0401 instead contemplates that cities, counties, towns and villages “must look at each wind system on its own merits and decide, in each specific case, whether the wind system conflicts with public health or safety.”  The Court took the view that the state statute thus contemplated local regulation in the form of a conditional use permit procedure that restricts systems as needed on a case-by-case basis, rather than a local ordinance creating a permit system with across-the-board regulations based on legislative policy-making. 

The Court of Appeals reversed and remanded the case to the circuit court for reconsideration, in light of the fact that the county exceeded its authority under Wis. Stat. 66.0401 when it adopted its wind energy ordinance.

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Hudson Iowa rezoning consistent with its comp plan

Gary Taylor

by Gary Taylor

Marianne Craft Norton Trust v. City Council of Hudson, et.al.
(Iowa Court of Appeals, October 7, 2009)

Rezoning of parcel within city limits from suburban agricultural to rural residential consistent with comprehensive plan; did not constitute spot zoning.

Defendants, the Manatts and the Petersons, own 40 acres west of Highway 58, on the north side of the City of Hudson within the city limits.  The Marianne Craft Norton Trust owns adjacent property immediately south of the defendants’ property.  Although the land along both sides of Highway 58 leading out of town to the north is primarily agricultural, there are more than 20 rural residences in the area between the densely-settled part of the city and Highway 20, four miles to the north. 

The city adopted an updated comprehensive plan in October 2006 that designated 160 acres along the west side of Highway 58, including the defendants’ land and the land owned by the Trust, for future residential development.  In November 2006  defendants filed with the city council a request to rezone the 40 acres in question from A-1, Suburban Agriculture to R-5, Large-Lot Residential.  The plat submitted with the request showed 5 lots for development, ranging from 3 1/3 acres to over 4 1/2 acres, and two large undeveloped parcels.  The city planning and zoning commission voted in January 2007 to recommend approval of the rezoning.  After the required public hearings, the city council approved the rezoning request in April 2007.  In May 2007 the Trust filed a petition for writ of certiorari  with the district court, alleging the rezoning was “illegal, arbitrary and capricious, unreasonable, not based on substantial evidence, and an abuse of discretion.”   After taking testimony, reviewing exhibits and, with permission from the parties, visiting the area the court ruled in favor of the city and the defendants.  The court found the character of the area in question, while once primarily agricultural, has changed significantly and “visually appears to be more rural residential than agricultural.”  It found the city council gave proper reasons for approving the rezoning, and gave consideration to the appropriate factors.  It further concluded that “even if the rezoning does fit within the definition of spot zoning, it is not illegal,” in that there was a reasonable basis for making the distinction between the rezoned property and the surrounding property, and the rezoning was consistent with the comprehensive plan.  The Trust appealed the district court’s ruling.

The Court of Appeals affirmed the district court on all counts.  The Trust contended that the city council did not follow the elements found in Iowa Code 414.3 when considering whether to rezone the property and that the council, in performing a quasi-judicial function, should have made written findings with regard to each element.  The Court of Appeals disagreed, finding that “a primary consideration of [Iowa Code 414.3] is that the zoning be in accordance with a comprehensive plan.”   The minutes of the council meetings and the testimony of two council members at trial showed that the rezoning followed many of the land use goals stated in the comprehensive plan, and was consistent with the designation of the area for future residential use.  The Court of Appeals then, on its own, proceeded to relate the considerations of the rezoning to a number of the elements found in Iowa Code 414.3, and determined that although the evidence on some elements of the statute was mixed and could support a decision supporting or reversing the rezoning, the bulk of the evidence on the elements of section 414.3 supported the council’s decision.  “In addition, if the reasonableness of a zoning decision is open to a fair difference of opinion, courts do not interfere with the decision.”  The Court of Appeals did not address the district court’s conclusion that it “did not read Sutton v. City of Dubuque to require a council to issue written findings.”

The Court of Appeals judged the claim of illegal spot zoning against the three-part test in Perkins v. Madison County:  (1) whether the new zoning is germane to an object within the police power; (2) whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property; and (3) whether the rezoning is consistent with the comprehensive plan.  It also examined the considerations discussed in Kane v. City of Cedar Rapids, those being “the size of the spot zoned, the uses of the surrounding property, the changing conditions of the area, the use to which the subject property has been put, and its suitability for various uses.   It again ran through a number of facts from the record, and found particularly persuasive that the permitted uses in A-1, Suburban Agriculture and R-5, Large-Lot Residential were “quite similar and compatible,” that the character of the area was changing from agricultural to rural residential, and that the comprehensive plan contemplated future residential development in the area.   The court also observed that “in contrast to some other spot zoning cases, where the rezoned property was freed from some restrictions placed on the surrounding property, the rezoning in the case before us is more restrictive than the zoning on the surrounding property.”  The court concluded that the rezoning did not constitute an illegal spot zoning, nor were the council’s actions arbitrary, capricious or an abuse of discretion.

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Pursuing permits establishes use under CUP

Gary Taylor

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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Illinois Local Food, Farms and Jobs Act

Gary Taylor

by Allison Arends and Gary Taylor

Of all the food consumed in Illinois, only 4 percent is grown within the state’s borders.  This is a startling statistic, but not surprising for states in the Midwestern Corn Belt where farm economies have largely developed into corn-soybean rotation monocultures.  Considering Illinois is home to  76,000 farms and 950 food manufacturing companies, enormous amounts of farm commodities are exported out of the state, while similar amounts are imported in order to feed Illinois citizens.  This has resulted in a, “costly arrangement that leaves too many people without enough access to healthy fruits and vegetables.”  Recently, both community level food systems and community-supported agriculture organizations have grown substantially. However, large consumers like hospitals, restaurant, and grocery stores have found it difficult to obtain local food in the necessary quantities.

In an attempt to contribute the efforts of state government to restructuring the food system and encourage Illinois farmers to respond directly to local consumers’ demands for fresh, locally-produced food, Governor Patrick Quinn recently signed into law the Illinois Local Food, Farms and Jobs Act of 2009.   The law creates a Grown-in-Illinois labeling and certification program to be administered by the Illinois Department of Agriculture.  The law also sets forth procurement goals that direct state agencies to purchase at least 20 percent of their food locally by 2020.  State-funded institutions such as schools have a goal of 10 percent by 2020.  State agencies will be allowed to pay up to a 10 percent premium above the lowest bid in order to purchase locally grown food.   

In addition, the law creates the Local Food, Farms and Jobs Council, a not-for-profit corporation tasked with facilitating the growth of an Illinois-based local farm and food product economy. This council, governed by a 35-member board of directors, will take actions designed to achieve the law’s goals of stimulating rural and urban communities, providing access to healthy fresh foods, creating jobs, and supporting economic growth through the distribution of Illinois local farm or food products to all of its citizens.  One of its main functions will be to work with public and private organizations and agencied to develop strategies for local food purchasing.

The state expects that increasing local food sales will bring a $30 billion boost to its economy the multiplier effect of keeping value-added production and consumption local.

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Forty-Year Act used to extinguish city’s interest in land

Gary Taylor

by Allison Arends

City Of Lake View vs. Patrick L. Houston (link to case here)
(Unpublished opinion, Iowa Court of Appeals, December 31, 2008)

Landowner uses Marketable Record Title Act to extinguish city’s claimed interest in roadway identified on plats.

In 1964 Houston was conveyed by warranty deed a half interest to property in Sac County. This property included the disputed property: a 33-foot by 110-foot strip of undeveloped land identified by Sac County in 1874 for a county road that was never built.  Although the deed did include the disputed property, Houston was not assessed property taxes on it until 1998 when the Sac County assessor received a title opinion that Houson was the owner. In 2006 the city of Lake View filed a petition to quiet title to the disputed property, arguing that its ownership was superior to any interest of Houston’s.

Lake View’s claim of ownership over the disputed property was based on two recorded plats.  The first – the Dension Beach Plat of 1916, replatted in 1932 – included lines depicting the disputed property as “north-south roadway,”  but the the property itself was not platted.  The second – the Lakewood Park Plat in 1933 – depicted the disputed area as part of  “Government Lot 1,” but Government Lot 1 was not a part of the platted area of Lakewood Park.  The city’s expert witness testified that because Houston’s deed referred to “Government Lots 1 and 2″ a title examiner was obligated to consider plats identifying Government Lots 1 and 2, although the expert also acknowledged that Houson’s deed did not specifically refer to either the Denison Beach Plat nor the Lakewood Park Plat.  The district court ruled in favor of Lake View, stating that “the recorded plats clearly identify the road and all plats involved were recorded prior to the deed transferring the disputed lot to Houston.”  

Houston appealed to the Iowa Court of Appeals, claiming that Lake View’s petition to quiet title was barred by Iowa’s Marketable Record Title Act (found at Iowa Code 614.29 to 614.38) (commonly known as the “forty-year act”).   Intended to simplify land title transactions, the Act states that “subject to certain exceptions… a person is deemed to have a marketable record title to any interest in land if that person has an unbroken chain of title of record to such interest for forty years or more.” It was undisputed that Houston has had a forty-year unbroken chain of record title to the disputed property.  Therefore, in order for Lake View to avoid having its interest in the property extinguished by the Act it must prove that it falls within one of the identified exceptions. 

The exception to the Act relevant to this case is set out in Iowa Code 614.32(1).  In a previous case the Iowa Supreme Court determined that the applicability of the exception depends on the answers to three questions:  (1) whether the interest in the disputed property is inherent in the “muniments of title” (the legal instruments through which title to land passes)  forming the landowner’s chain of record title;  (2) whether the interest was created prior to the landowner’s root of title; and  (3) whether the deeds specifically identify the record title transaction that created the interest. 

Lake View’s interest in the property arose prior to Houston’s 1964 warranty deed, thereby answering the second question in favor of the city.  However, the Court found that neither the first nor third questions could be resolved for the city.  The Court  found that because plats are not “deeds, wills or otherwise instruments through which title to land passes,” the city’s interest was not inherent in a minument of title.  Furthermore, because Houston’s 1964 deed did not specifically identify the plats upon which the city depended to illustrate the creation of its interest, neither was the third requirement of section 614.32 satisfied.  The Court concluded, therefore, that Lake View’s interest was extinguished under the Marketable Recort Title Act, and dismissed Lake View’s petition to quiet title.

Iowa Court of Appeals, Plat notations, Property law , ,
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