Year: 2013

Issue preclusion can be applied to bar zoning board proceedings, but applicants for 1998 and 2011 special exceptions were different

Gary Taylor

by Gary Taylor

Prybil Family Investments, Ltd., v. Board of Adjustment of Iowa City
(Iowa Court of Appeals, September 5, 2013)

In July 2011 Streb Construction Company filed an application for a special exception to operate a wet batch concrete plant on land zoned “General Industrial”  in the Scott-Six Industrial Park in Iowa City.  After a public hearing the Iowa City Board of Adjustment (Board) approved the special exception in September 2011.

Prybil Family Investments owns agricultural property adjacent to the land in question.  The land has been used for farming, and will continue to be for the forseeable future. Prybil filed a writ of certiorari to contest the Board’s decision.  Prybil’s main argument was that the same property owner filed an application for a special use permit to operate a cement plant on the same property in 1998, and was denied.  Therefore the doctrine of issue preclusion prevented the Board from considering the 2011 application (issue preclusion prevents the same issue from being reconsidered again in a later proceeding).  Alternatively, Prybil argued that the Board’s decision was not supported by substantial evidence. The district court disagreed on both claims and allowed the permit to stand.  Prybil appealed to the Iowa Court of Appeals.

The Court of Appeals began by noting that Iowa case law has never addressed whether the concept of issue preclusion applies to zoning board determinations.  It did acknowledge that in Johnston v. Christenson, the Iowa Supreme Court stated that “an administrative adjudication by an entity such as the board of adjustment can have a preclusive effect in a judicial proceeding..”  It also referenced Am. Jur. 2d, Zoning and Planning, which states that “res judicata (a concept that encompasses issue preclusion) applies to administrative zoning decisions in order to promote finality of decisions unless it is shown that there has been a substantial change of circumstances since the earlier ruling.” The Court, therefore, determined that issue preclusion can be applied to bar a second application for a special exception if the following elements, cited in Johnston v. Christenson, are met: (1) the issue must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made in the prior action must have been essential and necessary to the resulting judgment.” “However,” the Court noted, “if there has been a substantial change of circumstances” the concept will not apply.

Before beginning its analysis of the four factors it cited, it determined that, in any event, Prybil’s issue preclusion claim failed because the applicant for the 2011 special exception was not the same as the applicant for the 1998 special exception. Even though “Streb Construction Company” applied for the 2011 permit, and “A.F. Streb” applied for the 1998 permit the Court concluded that “Prybil presented no evidence showing that the parties were identical or [in close legal relation].”  The Court went on, however, to note that Prybi’s claim would also fail on the Christenson factors.  The mobile wet batch plant desired in 2011 incorporates improved environmental protections.  The 2011 and 1998 applications were for different lots in the Industrial Park.

After a lengthy discussion about what issues related to the substantial evidence claim were properly preserved for appeal by Prybil, the Court addressed the substantial evidence claim itself.  Prybil contended that the dust pollution from the plant will interfere with Prybil’s use an enjoyment of its property by damaging crops, but the Court did not disagree with the Board’s conclusion that conditions attached to the special exception – requiring Streb to pave the surrounding roads and plant trees to act as a screen from adjacent properties – were sufficient to satisfy the concern.  Prybil also contended that its property values would be diminished by the plant, but the Court again found sufficient evidence to support the Board’s conclusion that there were no Heavy Industrial zones in Iowa City where the plant could locate by right and any opinions on effect on future property values were merely speculative.  Although Prybil offered contrary testimony from two realtors, the Court said that the information presented at the hearing was sufficient to support the Board’s decision.

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Burden on city to determine whether feasible alternatives existed to proposed project affecting historic site

Gary Taylor

by Gary Taylor

Friends of Bethany Place v. City of Topeka
(Kansas Supreme Court, August 23, 2013)

The Grace Episcopal Cathedral and the Episcopal Diocese of Kansas (the Church) applied for a building permit for a parking lot on land it owns in Topeka because – according to a Church representative – the Church is critically short of disabled access space and estimated its true parking needs at 194 stalls.  The land is known as Bethany Place, and is included on the Register of Historic Kansas places.  This designation shields Bethany Place from further development unless the statutory protections with the the Kansas Historic Preservation Act (the Act) are satisfied.  The Church’s cathedral building and current 89-stall parking lot are adjacent to Bethany Place but are not considered part of the historic site.  The site is in a residential neighborhood next to Topeka High School.  The proposed parking lot project would include the removal of several trees, and the laying of hard surface across some of the historic site’s green space.

After investigating the project, the State Historic Preservation Officer (SHPO) wrote to the Topeka Planning Department that the project would damage or destroy the Bethany Place site, and “drastically change the relationship between the two historic buildings on the site with the public street of Polk.”  The SHPO recommended an alternative site design.  The day after receiving the SHPO’s letter, the Planning Department recommended that the City Council deny the building permit “in light of alternative and feasible alternatives that will not encroach upon or damage the listed property.”  The recommendation also cited the Topeka Traffic Engineering Division’s determination that “angled cut-back parking along SW Polk Street adjacent to the property would be a feasible alternative to the Church’s proposal, but notably contained no additional information detailing economic, technical or design issues related to the feasibility of cut-back parking.  The Church asked the SHPO to reconsider his findings, and asked the City Council to issue the permit anyway.  One day before the hearing, the organization “Friends of Bethany Place” (FOB) was formed to oppose the project.

At the hearing The Church submitted a number of supporting documents. The FOB also submitted documents in opposition to the request, including a petition with 95 signatures and a document entitled “alternative parking lot sites” that was an aerial photo of the grounds with notes suggesting alternative sites for parking.  At the conclusion of the lengthy hearing, the City Council unanimously passed the following motion:

I’d like to make a motion to approve the communication to override the recommendation of the [SHPO] and issue the parking lot permit.  I base this on the City Council’s consideration of all relevant factors, that there are no feasible and prudent alternatives of the proposal, and that all possible planning has been undertaken to minimize harm to the historic property.

FOB filed suit the next day.  The city filed a motion to dismiss, arguing that FOB lacked standing.  The district court concluded that FOB had standing, and that the record was insufficient to support the Council’s conclusion that there were no feasible alternatives to the project.  On the City’s appeal of that decision, the Court of Appeals affirmed the district court on the standing issue, but reversed on the permit issuance. FOB appealed.

Standing. The Act provides that “any person aggrieved by the determination of a governing body…may seek [judicial] review….”  The Court concluded that FOB clearly fell within the definition of “person” provided by statute.  As for the term “aggrieved,” the Church and City urged the Court to follow earlier case law interpreting “aggrieved” – as it appeared in another statute – to mean “one whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by the order.”  The Court declined to do so, stating that the Act contemplated a much broader view of “aggrieved.” It cited language in the preamble of the Act making historic preservation “among the highest priorities of government…for the eduction, inspiration, pleasure and enrichment of the citizens of Kansas.”  It also noted that property owners within 500 feet of an historic site – an area within which several FOB members reside – receive special consideration in matters relating to the designation of historic sites.  Finally, it considered important several affidavits submitted by FOB members that stated that their property values would be negatively affected by the project.  In sum, FOB had standing to challenge the Council’s decision.

Decision merits.  According to Kansas caselaw, the ultimate question for the Court is whether the City Council took a “hard look” at all relevant factors, and used plain common sense in its determination as to whether the facts support the decision.  This is to limit the Court’s scope of review to whether decision “represented a clear error of judgment.”  The Court in this case concluded that the Council did not take the required “hard look.”  Under the Act, to allow the project the Council must determine that (1) there were no feasible and prudent alternatives to the proposed parking lot, and (2) the proposal included all possible planning to minimize harm.  It placed the burden on the City – not project opponents – to establish the existence and feasibility of alternatives.  The Court found an absence of technical, design and economic considerations submitted to the Council regarding potential alternatives.  Several alternatives were suggested by opponents to the project, but the Council failed to direct any further investigation into these alternatives.  In all, the record before the Court demonstrated that the Council failed to adequately perform its investigatory role to identify feasible alternatives, and because of this the Court directed that the case be remanded to City council for another hearing after the necessary investigations are conducted and evidence gathered concerning feasible alternatives.

 

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Content-neutral zoning ordinance that resulted in total ban on adult entertainment businesses deemed valid; alternative avenues of communication existed in other jurisdictions

Gary Taylor

by Gary Taylor

David Peterson and The Juice Bar, LLC v. City of Florence (MN)
(Federal 8th Circuit Court of Appeals, August 16, 2013)

Florence, Minnesota – a municipality in Lyon County – has a population of 39, and covers approximately 0.2 square miles.  It is home to sixteen single-family residences, a shop where Florence’s road equipment is stored, an unheated office that serves as the city office, and a park.

In 2008 the city adopted an ordinance prohibiting the operation of a sexually-oriented business within 250 feet of day cares, schools, parks, libraries, and any property zoned for residential use.  At the same time the city adopted a zoning ordinance that established three zoning districts (residential, commercial, and business) and zoned the entire city residential.  Sexually-oriented businesses were only permitted in the commercial district.

Peterson opened The Juice Bar in December 2010, which featured live, nude dancers.  The next day Peterson was charged with three misdemeanor counts for violating the sexually-oriented business ordinance, for operating The Juice Bar within 250-feed of a park.  Peterson filed suit against the city to enjoin the enforcement of the ordinance, for a declaratory ruling that the ordinance violated his First Amendment freedom of speech rights, and sought damages and attorney fees.  Shortly thereafter in 2011, the city repealed its sexually-oriented business ordinance in its entirety, and amended its zoning ordinance to eliminate the business and commercial districts, citing the city’s “limited infrastructure, staff, and resources” which could not support business or commercial uses.  The criminal case against Peterson was dismissed, but Peterson’s First Amendment suit continued; that is, until the district court dismissed the suit.  Peterson appealed the dismissal.

Peterson first argued that the 2011 zoning ordinance constitutes an invalid total ban on the operation of adult entertainment businesses in the city.  The 8th Circuit agreed that the zoning ordinance resulted in a total ban; however, this was not fatal to the ordinance because the ordinance prohibited an entire class of conduct – all commercial and business uses – not just adult entertainment establishments. “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” A content-neutral time, place, or manner regulation will be upheld if it is narrowly tailored to serve a substantial governmental interest and leaves open ample alternative channels for communicating the speech.  The Court found that the city articulated substantial governmental interests with its zoning ordinance; mainly the preservation of the quality of life of its residents, and its limited ability to accommodate commercial or business establishments.  Further, the Court found that ample alternative channels of communicating the speech existed because over 200 acres of Lyon County were zoned in a manner that would accommodate adult entertainment businesses.  “The Supreme Court has left open the question of whether, at least in the case of small municipalities, opportunities to engage in the restricted speech in neighboring communities may be relevant to determining the existence of adequate alternative channels.”  The 8th Circuit thus walked through that opening to close the door on Peterson’s claim.

 

 

 

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Failure to appeal original determination of permit violation prevents revisiting original permit conditions

by Kaitlin Heinen and Gary Taylor

Eric and Deborah Ringsred v. City of Bayfield, Wisconsin
(Wisconsin Court of Appeals, May 21, 2013)

In 2006, Eric and Deborah Ringsred were granted a conditional use permit to operate a bed and breakfast located in an R-1 residential zoning district in the City of Bayfield, Wisconsin. One of the conditions required a separate cottage to remain vacant until the City was notified the cottage was to be used for habitation. On September 8, the Ringsreds notified the City that they planned to use the cottage as an accessory dwelling. On September 19, the City’s attorney told the Ringsreds that the cottage could not be used as such for the bed and breakfast unless another conditional use permit was obtained, as required by the City’s ordinances. However, the Ringsreds did not apply for an additional conditional use permits regarding the cottage.

On July 2, 2009, the City’s zoning administrator notified the Ringsreds that it had “come to the City’s attention the cottage was occupied during a portion of this past year…[The City] respectfully request[ed] [the Ringsreds] to respond to this issue in writing prior to the Commission’s next meeting on July 20, 2009.” The Ringsreds responded, stating that during the “non-B&B period of the year,” someone needed a place to stay and was allowed to stay in the cottage, but it was not a “rental situation.” In August and September 2009, the City of Bayfield Plan Commission convened a hearing in regards to the alleged permit violations, which the Ringsreds attended. On September 15, 2009, the Commission issued a decision, which held that the Ringsreds had violated the conditional use permit by allowing the cottage to be used as a dwelling. The Commission upheld the requirement that the cottage remain vacant and that an application need be completed for it to be used as an accessory dwelling. The Commission also required that the Ringsreds respond in writing that they would not use it as a dwelling without complying with this requirement, which the Ringsreds promptly did.

In September 2010, the City investigated another complaint that the cottage was being used as a residence. A hearing was held on November 9, 2010, where evidence established that the cottage had been occupied during the summer of 2010. The Commission decided that there was no reasonable modifications of the conditional use permit that could be made to assure compliance, so the Commission voted to revoke the permit.The Board of Appeals upheld this decision at a February 15, 2011 hearing. The circuit court later affirmed the Board, so the Ringsreds appealed to the Wisconsin Court of Appeals.

On appeal, the Ringsreds claimed they notified the City in 2006 of their intent to use the cottage as an accessory dwelling, which fulfilled the condition in the original permit. The Ringsreds thus argued that the Commission  had no authority to modify the permit at the September 15, 2009 hearing since there was no permit violation. The Wisconsin Court of Appeals disagreed.

First, the Ringsreds never appealed the Commission’s September 2009 modification. As such, the Ringsreds were not entitled to fresh consideration of all relevant facts and law surrounding the conditions of the 2006 permit or the alleged 2009 violation. The Ringsreds had been provided the opportunity to submit testimony and documents to the Board, but did not. The evidence available was sufficient to support the Board’s decision because “[t]he  Board reasonably inferred the purpose of the original conditional use permit’s third condition was to ensure that occupancy of the cottage would be in compliance with the City’s zoning ordinances.” Further, the Ringsreds were explicitly informed by the City’s attorney of the requirement for a separate conditional permit to use the cottage, and the Ringsreds made no effort to obtain such an additional permit. Not only did the Ringsreds not object to the permit modifications, they promptly complied with the requirement that they provide a written commitment to the Commission that they would not use the cottage as a dwelling without obtaining the required permit. Thus the Ringsreds’ multiple violations of their permit were enough to sustain the Board’s decision that no reasonable further modifications could assure compliance with the ordinance, given the history of their case. So the Wisconsin Court of Appeals affirmed the Board’s decision as well.

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70-day delay in satisfying records request deemed too long under Iowa Open Records Law

Gary Taylor

by Kristi Harshbarger
Legal Council, Iowa State Association of Counties

Horsfield Materials, Inc. v. City of Dyersville
(Iowa Supreme Court, July 5, 2013)

This article originally appeared in the August 2013 issue of The Iowa County.  Kristi provides good advice on responding to records requests at the end.

What is a timely response to a records request?  I don’t know if we have a definitive answer to that question, but what we do have is a case from the Iowa Supreme Court giving us an example of what the Court deemed to not be a sufficiently timely response under Chapter 22 of the Iowa Code (the open records laws).  The opinion handed down by the Court on July 5, 2013 in Horsfield Materials, Inc. v. City of Dyersville addressed a dispute between the city and a materials supplier related to the city’s public bidding of a project.  There were several claims made by the materials supplier related to the city’s process for public bidding.  An additional claim was made related to the timeliness of the response from the city on several open records requests made by the material supplier related to gathering information on the city’s process in this particular public bid.  The opinion sets forth the detailed timeline in the situation, which involved several rounds of communication between the city and the materials supplier related to the open records requests.  The original request was made on December 21st.  The parties communicated on various issues and clarifications, and the city provided a small portion of the documents requested on December 31st.  On January 26th, the city attorney claimed attorney-client privilege on five emails related to the request.  On March 25th, the city offered a remedy for providing a video that was a part of the open records request.  On April 6th, the city provided 617 pages of documents in response to the request.  On April 8th, the city attorney claimed attorney-client privilege on eight additional emails.  At a later date, the city agreed to release these emails.  Throughout this time, the city stated the reasons for delay were the large number of documents that had to be reviewed in order to comply with the request and the difficulty in getting the 48 hours of video reviewed that was requested.

The district court concluded that the city’s response was a good faith effort to comply with the open records laws and thus no violation occurred.  The Iowa Supreme Court reversed this decision and held that a violation had occurred.  The Court considered Iowa Code Section 22.8(4)(d) which provides that it is a good-faith reasonable delay in responding to a records request if the delay is no longer than 20 calendar days for the purpose of determining “whether a confidential record should be available for inspection and copying to the person requesting the right to do so.”  The Court found, however, that this 20 day parameter should not be applied as a blanket rule in other situations.  The Court instead relied on an administrative interpretation found in Iowa’s Uniform Rules on Agency Procedure which states access to records “shall be provide promptly upon request unless the size or nature of the request makes access infeasible.”  While this standard can be subjective, the Court did recognize that the size or nature of the request might play into the response time needed.

The Court held it was a close call whether or not the time it took the city to respond given the size and nature of the request was a violation of the open records laws, but the Court ultimately held the approximately 70 day delay was too long for substantial compliance.  The Court noted that for over a month during the time the request was outstanding the city did not communicate with the requestor.  The Court seemed most concerned with the fact that “it appears the video recordings of public proceedings became a stumbling block to the production of the hard copy documents.”  The Court felt adamantly that the city should have turned over the hardcopy documents as soon as available and then provided the video recordings later if more time for review was necessary.  The Court did recognize that the city employees and the city attorney had other significant responsibilities during the time they were trying to respond to the records request, but stated that because the testimony did not include specific dates or time frames “it is impossible to know how much time it really took city officials to work on Horsfield’s request, relative to other demands on city officials’ time.”

The requestor also claimed that it was a violation of the open records laws for the city to initially claim attorney-client privilege for some emails because it later waived that privilege and the requestor argued that was an admission that the city had “no defense to its failure to produce relevant and responsive documents.”  The Court disagreed.  It held “the City’s tactical decision to waive the attorney-client privilege . . . does not establish that the City violated the [open records] Act when it initially withheld them.”

Some things to learn or remember in light of this opinion are:  1) if you are trying to sort out a large or otherwise difficult records request, stay in regular communication with the requestor; 2) supply records as you go and do not wait until you have the request completed before providing the records; and 3) document the time you spend on compiling the records request.

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Landowner not entitled to injunction when ownership of easement rights in dispute

by Kaitlin Heinen

Hawkeye Land Company v. City of Coralville, Iowa
(Iowa Court of Appeals, June 12, 2013)

Hawkeye Land Company filed an application for injunction on April 6, 2012, which involved a parcel of land and railroad tracks located on the southern end of Coral Ridge Avenue in Coralville, Iowa. The application was filed in response to the City of Coralville’s decision to extend Coral Ridge Avenue over the tracks in order to provide access to a developing subdivision. Prior to construction of the extension, “Coralville did not initiate eminent domain proceedings.” The City negotiated with Heartland Rail Corporation, believing that Heartland, rather than Hawkeye, had the rights to approve the street extension over the railroad tracks. An agreement between Coralville and Heartland was reached.

Both Hawkeye and Heartland claimed to have received ownership from the railroad’s original owner, Chicago Pacific Corporation (CPC). Heartland claimed to have purchased rights from CPC and to have been granted rights to operate the rail line including the right to grant easements, such as construction of a street over the tracks. Coralville argued its purchased such an easement from Heartland. On the other hand, Hawkeye argued it purchased rights from CPC including the right to grant easements for “transportation and transmission systems” by “whatever means,” which arguably includes streets. The most contentious issue between parties was which party possessed rights to grant easements necessary to extend Coral Ridge Avenue over the railroad tracks and whether that party had been properly compensated. If Hawkeye possessed rights, the extension could constitute a taking requiring eminent domain proceedings and payment to Hawkeye. If Heartland possesses rights, eminent domain proceedings are not necessary because Coralville had compensated Heartland. The district court denied Hawkeye’s application for injunction because it found that Hawkeye failed to show that it had suffered irreparable harm and had no adequate remedy at law.

To obtain an injunction, the owner must prove irreparable injury and that no adequate legal remedy is available. “When property has been subject to condemnation, the landowner may permanently enjoin the eminent domain proceedings.” Also, “[i]n each case where a permanent injunction has enjoined condemnation under eminent domain, condemnation has occurred first.” The Iowa Court of Appeals held that this did not happen in this case. Coralville brought no condemnation proceedings, but Iowa law provides a remedy for a taking that has occurred without condemnation proceedings. Mandamus, or inverse condemnation, is available as a remedy when an agency has taken private land for public use without condemnation proceedings or employing eminent domain. So, the Iowa Court of Appeals ruled that the rights of the parties need not be decided at this time because the question before the court in this case was whether Hawkeye was entitled to an injunction. “A mandamus action is available to it, and as that action will result in the same outcome as a condemnation proceeding, it provides an adequate remedy at law.” Yet, “[b]ecause Hawkeye is unable to satisfy the necessities to obtain an injunction,” the district court’s decision was affirmed.

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Environmental Assessment Worksheet required for parcel where previously permitted gravel mining was taking place

by Kaitlin Heinen

Duininck, Inc. v. Renville County Board of Commissioners
(Minnesota Court of Appeals, April 15, 2013)

Duininck, Inc. applied to Renville County Board of Commissioners for an interim use permit (IUP) to allow gravel mining on 44 acres of land in the County. Duininck has been mining at Molenaar site since 2000 under conditional use permits (CUPs) from the County for 39 acres of the area. The County now requires an IUP instead of a CUP for gravel mining, so Duininck applied for an IUP to expand the site by 5 acres. The County’s director of environment and community development, Mark Erickson, reviewed the application and concluded that an environmental assessment worksheet (EAW) might be mandatory under Minnesota Rules because the application encompassed more than 40 acres.

Before the county board’s next meeting, Duininck filed another application for an IUP that only covered the permitted 39 acres “to ensure that it would be able to continue existing mining operations if its CUP expired during the environmental-review process.” If the board decided to require an EAW, Duininck would pursue the 39 -acre application instead. The board voted to require an EAW for the 44-acre application, so Duininck withdrew the 44-acre application after the meeting. The County then reviewed and granted the 39-acre application. However, Duininck still appealed to the Minnesota Court of Appeals regarding the EAW and the 44-acre application.

In reviewing an EAW challenge, the Court of Appeals must determine whether the decision was “unreasonable, arbitrary or capricious, made under an erroneous theory of law, or unsupported by substantial evidence.” The Court noted, “Minnesota Rule 4410.4300 describes the types of projects for which an EAW must be prepared…Preparation of an EAW is mandatory for projects that meet or exceed the thresholds identified in rule 4410.4300…which requires preparation of an EAW in connection with a project for the ‘development of a facility for the extraction or mining of sand, gravel, stone, or other nonmetallic minerals, other than peat, which will excavate 40 or more acres of land to a mean depth of ten feet or more during its existence.'” Duininck’s project involves mining gravel on 44 acres of land, and because this falls within the definition of ” project” in 4410.4300, the Court concluded that an EAW is required with the 44-acre IUP application.

Duininck argued that the scope of the project in determining whether an EAW is required should not include the 39 acres it had been mining under CUPs since 2000. In support, Duininck cited part of the rules that provides a 3-year look-back rule for determining whether to include original project acreage in determining whether the mandatory EAW threshold is met. However, Duininck’s CUPS expired on their own terms. So Duininck filed the 44-acre application, intending to continuing and expanding its mining operations. Because all 44 acres were considered a part of the current project, the rule cited by Duininck did not apply. Duininck also argued that the county erred by treating the 5-acre expansion as a phased action. “Phased actions are multiple projects to be undertaken by the same proposer that ‘will have environmental effects on the same geographic area’ and ‘are substantially certain to be undertaken sequentially over a limited period of time.'” Though the county argued that Duininck’s expansion can be considered a phased action, the record did not reflect this as a basis for its decision. Further the rules governing phased actions do not apply again because all 44 acres are part of the current project.

Having applied the plain language of the EAW rules to ongoing mining operations, which require permit renewals whether or not the proposer has completed any particular area, the Minnesota Court of Appeals affirmed the county’s decision to require an EAW in connection with the 44-acre application.

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Sierra Club must exhaust administrtative remedies before challenging Iowa DOT highway extension proposal

by Kaitlin Heinen

Sierra Club Iowa Chapter, Linda Biederman, and Elwood Garlock v. Iowa Department of Transportation
(Iowa Supreme Court, June 7, 2013)

The Iowa chapter of the Sierra Club has more than 5000 members residing in the state, some of which hike in Rock Island State Preserve and Rock Island County Preserve. The Iowa Department of Transportation (IDOT) is a state administrative agency that has proposed extending Highway 100 west of Cedar Rapids, which would run adjacent to Rock Island State Preserve and through Rock Island County Preserve, thus negatively impacting the ecosystems in the two preserves.

The Sierra Club Iowa Chapter and two of its members filed a petition for judicial review challenging IDOT’s Highway 100 project. The IDOT responded with a motion to dismiss, which was granted by the district court because the Sierra Club “had not exhausted administrative remedies by first seeking a declaratory order from IDOT under section 17A.9(1)(a).” The Sierra Club did not participate in any administrative proceedings with IDOT prior to filing the petition for judicial review.

On appeal, the Iowa Supreme Court addressed the issue “if a party challenging agency action must seek a declaratory order from the agency under section 17A.9(1)(a) before petitioning for judicial review in order to satisfy the exhaustion doctrine.” Important to note, Iowa Code § 17A.19(1) provides: “A person or party who has exhausted all adequate administrative remedies and who is aggrieved or adversely affected by any final agency action is entitled to judicial review thereof . . . .”  There are situations when a party can bypass the exhaustion doctrine; however, “the Sierra Club has not preserved error on an argument for one of these exceptions to apply.”

The Sierra Club filed a complaint in federal court, captioned “Complaint for Declaratory and Injunctive Relief.” The complaint involved the United States Secretary of Transportation and the Administrator of the Federal Highway Administration as defendants. The Sierra Club alleged that “the secretary and administrator did not follow the applicable federal statutes and regulations when they issued and approved the Final Supplemental Impact Statement for the Highway 100 project.” Because of the complaint’s caption, the Iowa Supreme Court held that the Sierra Club requested declaratory and injunctive relief. Because the Sierra Club sought declaratory relief, “the court must [construe] section 17A.9 to determine whether declaratory orders are mandatory or permissive.” Section 17A.9 was adopted in 1974 as part of the Model State Administrative Procedure Act. When enacted, 17A.9 required “any agency with authority to issue declaratory rulings to do so within thirty days after a party files the petition…Failure of the agency to do so results in the administrative remedy being ‘deemed inadequate or exhausted.’”

To construe such a statute, the court must determine legislative intent. If the statute’s language is unambiguous, the court looks no further. One could argue that “the requirement to file a petition for declaratory relief with the agency is permissive because the word ‘may,’ as found in section 17.9(1)(a), is unambiguous.” The Iowa Code’s rules of statutory construction state: “The word ‘shall’ imposes a duty. . . . The word ‘must’ states a requirement. . . . The word ‘may’ confers a power.” Further, “the legislature’s use of the word ‘may’ usually indicates legislative intent for the statute to apply permissively…[so] a person can argue that a party need not exhaust administrative remedies before filing a declaratory judgment action with the court.” But to the contrary, “when a statute provides a person with an administrative remedy and uses the word ‘may,’ but does not explicitly state the administrative remedy is the exclusive remedy, the person is still required to exhaust the administrative remedy before seeking court intervention…[so] a person can also argue that a party must file a declaratory order with the agency before seeking court intervention, because the Code uses the word ‘may.’” As a result of these competing interpretations, the court found the statute ambiguous.

After assessing the statute in its entirety, the court concluded the legislature’s intent when enacting section 17A.9(1)(a) “requires the Sierra Club to first petition IDOT and therein ask the agency to determine whether IDOT complied with sections 314.23(3) and 314.24 in extending Highway 100 adjacent to the Rock Island State Preserve and through the Rock Island County Preserve.” First, by using the term “inadequate or exhausted,” the legislature indicated that a party must first exhaust his or her administrative remedies before seeking court intervention. Second, an article written by the 1973-1974 counsel to the Subcommittee, Arthur Bonfield, “revealed that the legislature created the administrative procedure for agency-issued declaratory orders to replace the court-provided remedy of declaratory judgments for matters within an agency’s jurisdiction,” which means that the legislature clearly “intended section 17A.9 to be the preferred method for obtaining a declaratory order when a person challenges the agency’s administration of a statute.” Third, “in a declaratory order proceeding, the agency must state in its order the facts it relied upon and the basis for its decision…[which] ensures the agency will make a complete record and the parties will know the rationale supporting the agency’s decision.” Fourth, though the Sierra Club argued it would be futile to ask the agency to reverse its own decision, the court did not agree. In the past, “agencies…have decided many issues within their purview…[with] no evidence to suggest agencies will conduct declaratory order proceedings in a biased, unprofessional manner and without regard for the rules promulgated by the legislature.” Finally, “any party to a declaratory order may seek judicial review of that order…[which] protects a party to a declaratory order proceeding if the agency makes the incorrect decision.”

Therefore, the Iowa Supreme Court “concluded [overall] that the Sierra Club must first seek a declaratory order under Iowa Code section 17A.9(1)(a) before asking the court for relief; and thus, the exhaustion doctrine bars its petition.” The Iowa Supreme Court affirmed the district court’s judgment.

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Volunteer members of regional planning commission board not subject to penalties for open meetings violations

Gary Taylor

by Gary Taylor

City of Postville et al., v. Upper Explorerland Regional Planning Commission et al.
(Iowa Supreme Court, June 7, 2013)

The Upper Explorerland Regional Planning Commission is a regional planning commission serving five northeast Iowa counties that is organized under Iowa Code chapters 28E and 28H. There are twenty-four commission members.  None receive compensation for their service on the commission, except that three members have salaries for full-time government positions that require them to serve on the commission.  Others receive reimbursement for mileage.

The commission was examining the feasibility and cost of either expanding the Postville office of the commission, or locating alternative office space in any of the five counties.  Contract negotiations for properties in the five-county area took place, and on September 23, the commission held a meeting to approve a contract to purchase property in either Decorah or Postville. Sixteen members attended. After lengthy discussion, the motion was made to approve a proposed purchase contract for the Decorah property. The attending members unanimously agreed with a proposal to conduct the vote by secret ballot. The members cast their ballots and then publicly counted the votes. The motion to purchase the Decorah property was approved 10-6.

Immediately after the vote concerns were raised about the propriety of the secret ballot vote under the Iowa Open Meetings Act (OMA). After the meeting one of the commission members told another member before leaving that there was a problem with the ballot vote. The same night, this concern was relayed to the commission’s executive director. The following Monday after the vote, all commission members received an email indicating concern about the legality of the secret ballot vote. Several members proposed that if the voting members revealed their vote and recorded their decision in the minutes, then the commission’s action would be legal. The commission also contacted the State Ombudsman’s Office, which recommended sending new written ballots to each voting member. The commission heeded this recommendation and instructed each voting member to reaffirm their vote and include their name on the ballot. Of the sixteen original voting members, one abstained, another returned the ballot unmarked, and a third did not return the ballot at all. Six members changed their votes in the subsequent reaffirmation. Despite this, the outcome remained the same with ten “yes” votes in favor of purchasing the property in Decorah. The commission distributed revised minutes of the meeting, which listed the name and vote of each member who was present for the September 23 meeting.

The City of Postville and a resident taxpayer of Allamakee County filed suit claiming fifty-one violations of the OMA for actions taken associated with the office relocation decision and several others.  Among the remedies requested by the City was an order that commission members be held personally liable for the OMA violations.  The district court found for the Commission on all counts.  The City appealed to the Court of Appeals.

The Court of Appeals boiled the claims down to three primary issues:   (1) whether a volunteer of a governmental body is immune under Iowa Code section 28H.4 for damages due to OMA violations; (2) whether the governmental body’s meeting notices met OMA requirements; and (3) whether a certain publication is a newspaper of general circulation, as required by section 28E.6(3)(a).

Volunteer immunity under OMA.  The commission and its members admitted to violating OMA with respect to the secret ballot and subsequently when the commission reaffirmed the vote by mail; however, they argued they are immune from liability under the state immunity provision in Iowa Code section 28H.4(2), which provides that “a director, officer, employee, member, trustee, or volunteer is not personally liable for a claim based upon an act or omission of the person performed in the discharge of the person’s duties, except for acts or omissions which involve intentional misconduct or knowing violation of the law, or for a transaction for which the person derives an improper personal benefit.”

The Court of Appeals noted that “intentional misconduct” requires more than a reckless disregard for the law, and a “knowing violation” requires a deliberate or conscious act. The court found no evidence that the actions of the members amounted to intentional misconduct or a knowing violation. Instead, the record shows the members did not identify an issue with the secret ballot vote until after its completion. Upon identifying the problem, the members self-policed their actions and took corrective measures.

On appeal the city argued for the first time that the immunity provided in 28H.4 does not apply to violations of OMA; however, because the court does not decide issues not presented in district court the issue was “left for another day.”

Posting of meeting notices.  The City alleged the commission conducted improper closed sessions lacking reasonable meeting notice from October 28, 1999, through August 19, 2010, basing its claim on the fact the commission posted its meeting notice on a bulletin board located in the hallway of the commission’s Postville office. The bulletin board is approximately thirty to forty feet from the main public access door, and is not visible from the entrance door to the office. The office is open to the public Monday through Friday from 8:00 a.m. until 4:30 p.m.

OMA requires notices of meetings to be provided “in a manner reasonably calculated to apprise the public” of the date, time, location and subject of the meetings.  One manner of notice specified in OMA is to “post the notice on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose ….”  The court remanded the case to the district court for further inquiry into whether the meeting notices met this standard.  It noted that the commission secretary posted the notice on the board at least five days in advance of each meeting, but the public generally does not utilize the hallway where the bulletin board is located unless the individual has an appointment or uses the restroom. The question remained how often the public uses the hallway or if the board and its contents are visible from the reception area.

Newspaper of general circulation. Iowa Code 28E.6 requires councils of governments to annually publish the “names and gross salaries of persons regularly employed by the entity” in “one newspaper of general circulation within the geographic area served by the joint board of the entity.” The City contended the Olewein Daily Register was not a newspaper of general circulation because there are no individual subscribers to the paper in three of the five counties, and no business subscribers in four of the five counties.

The court noted that the statute only requires publication in one newspaper – the legislature expressly stated it is not necessary to publish in multiple newspapers within a single geographic area. Moreover, it is not necessary to publish using a newspaper outside the geographic region. The undisputed record established there is no single newspaper available that has subscriptions in all five counties within the commission’s service region. The commission specifically selected the Register because it is the only daily newspaper serving the five-county area. A “newspaper of general circulation” is a publication that “contains news and information of interest to the general public, rather than to a particular segment, and that is available to the public within a certain geographic area….[It is] not determined by the number of its subscribers, but by its diversity….More compelling is the fact the Register serves the same area as the commission.”  The court sided with the commission on this claim.

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Abandonment of nonconforming use need not be established, but abandonment is evidence of discontinued use

Gary Taylor

by Gary Taylor

Moyer v. City of Des Moines Zoning Board of Adjustment
(Iowa Court of Appeals, May 29, 2013)

Don Moyer owns Hawkeye Motors, Inc. By 1997, Hawkeye Motors held title to multiple parcels of property on the corner of East 14th Street and Washington Avenue in Des Moines, including the lot located at 1433 East 14th Street (Lot 1433). Lot 1433 spans 20,500 square feet over two parcels and contains a 1652 square foot building originally built for auto repair.  From the time Hawkeye Motors purchased the property until 2006, the company either sold vehicles from Lot 1433 or leased the property to other tenants to sell or repair used cars. The lot was originally zoned as C-2, 2, which allowed used vehicle display. The city later rezoned Lot 1433 as C-1, a “neighborhood retail commercial district” that prohibits used vehicle display. On August 23, 2001, the city granted the property a legal nonconforming status for used auto sales and issued a certificate of occupancy to Hawkeye Motors to utilize the property as a “used automobile sales lot.”

Moyer held a used car dealer’s license issued to Hawkeye by the Iowa Department of Transportation that included Lot 1433, but allowed the license on the lot to lapse in 2004. In January 2006, Moyer leased Lot 1433 to Diaz Tinting, Inc. The city issued Leonardo Diaz a certificate of zoning compliance, which on January 10, 2006, authorized “building reuse from used cars to detailing and tinting.” The certificate provides: “No change of use may be made at this location unless a new Certificate of Occupancy is granted for such use and no change in this building or land may be made without first consulting the Zoning Enforcement Office.” In March 2007, Hawkeye Motors sold Lot 1433 on contract to Don and Gloria Moyer (his wife) personally, and issued the deed to the couple in 2011. During a property inspection by the city in January 2009, the enforcement officer discovered cars were being sold and repaired on Lot 1433. The city notified the Moyers six days later, and again in May 2009, that this parcel lost its legal nonconforming use status and consequently the auto sales and repair activities were unauthorized. The Moyers did not appeal either determination.  An April 24, 2010 inspection of Lot 1433 found continued illegal auto repair, and the city again notified the Moyers of “illegal business operations….”  When the Diaz Tinting lease ended one year later Moyer asked the city for a letter to the DOT stating that Lot 1433 was properly zoned for displaying and selling used cars. The city denied Moyer’s request. Moyer appealed the city’s denial, but the zoning board of adjustment upheld the city’s refusal.  Moyer appealed.

The Iowa Court of Appeals made the following statements regarding nonconforming uses on its way to upholding the decision of the zoning board of adjustment:

  • Sometimes intent to abandon may be inferred from a failure to apply for a license to carry on the nonconforming use.  [The same may be inferred] from amending the licensed use of the property.
  • Because [the Des Moines Ordinance] sets a time frame for determining when discontinuation of a property’s former use triggers the loss of its nonconforming designation, the city need not prove the owner’s intent to abandon. But intent to abandon presupposes discontinued use. Therefore, while proof of intent is not necessary to establish abandonment, an inference of the owner’s intent to abandon is relevant to nonuse.

The court concluded that because Moyer was without a dealer’s license to sell vehicles on the property, and his tenants had a certificate permitting the property’s repurpose to detailing and tinting, the board of adjustment could properly infer discontinued use as a used car display lot for at least six months [required under the ordinance] between 2006 and 2009.  Moyer attempted to distinguish between his 2001 “Certificate of Occupancy” and Diaz’s 2006 “Certificate of Zoning Compliance,” arguing that the latter could not revoke the former, and therefore could not be used as evidence of abandonment; however, the Des Moines zoning officer explained that the purpose of the Certificate of Zoning Compliance is “to document the change in use mostly for office use.” Both forms read substantially the same, including the requirement that “this certificate must be posted in a conspicuous place on the premises.” The court found that the board was entitled to rely on the 2006 certificate as circumstantial evidence the property no longer served as a used car lot.

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