Year: 2013

Village junk vehicle ordinance broader than state traffic regulations, but validity of ordinance could not be determined

by Kaitlin Heinen

Village of North Hudson v. Randy J. Krongard
(Wisconsin Court of Appeals, March 12, 2013)

In November of 2011, the Village of North Hudson issued 2 citations to Randy Krongard for having 2 junk vehicles in plain view on his property, which was contrary to North Hudson Village Ordinance §§ 90-41 and 90-44. The vehicles were considered junk vehicles because they had expired registrations. In December, Krongard pleaded not guilty in municipal court; however, he did not appear at the scheduled trial, so the court entered default judgment against him. In March of 2012, Krongard moved to vacate the municipal court’s judgment because “90-44 is void, unlawful, and invalid as preempted, contrary to, and inconsistent with” Wisconsin state law.  His motion was denied. Krongard appealed to the circuit court, which also denied his motion, and then to the Wisconsin Court of Appeals. The Village argued that Krongard’s appeal was an improper one because Krongard should be prohibited from appealing a default judgment. However, Krongard appealed the order denying his motion to vacate the default judgment. So Krongard’s appeal was properly before the circuit court and the Wisconsin Court of Appeals.

Before the court, Krongard argued that the circuit court wrongly denied his motion because the judgment against him was void, since the Village’s junk vehicle ordinance was invalid based on its conflict with state traffic regulations. An ordinance regarding traffic regulation “must be in strict conformity with state law,” otherwise it will be preempted. Krongard asserted the conflict stemmed from the ordinance’s defining unregistered vehicles as junk vehicles and regulating unregistered vehicles on private property. Wis. Stat. § 340.01(25j) does not include unregistered vehicles in its definition of a “junk vehicle.” Instead it defines a “junk vehicle” as a “vehicle which is incapable of operation or use upon a highway and which has no resale value except as a source of parts or scrap” and a “vehicle for which an insurance company has taken possession of or title to if the estimated cost of repairing the vehicle exceeds its fair market value.” Also, state traffic regulations allow for vehicles to be parked on private property with the owner’s consent and only permit municipalities to regulate unregistered vehicles on highways. So Krongard held that the Wisconsin Court of Appeals must conclude the ordinance is invalid, rendering his judgment void.

The Village counter-argued that the state traffic regulations are concerned “with the licensing, regulation of, outfitting and operation of vehicles” and its ordinance is “concerned with the upkeep of private property,” which are “two completely different issues.” The Village also contended that its junk vehicle ordinance is not inconsistent with or contrary to the state’s definition of a junk vehicle.  The Village argued that, under Wis. Stat. § 340.01(25j), a vehicle is junk if it is not capable of legal operation on the highway, and an unregistered vehicle is incapable of legal operation on the highway and therefore constitutes a junk vehicle.  Finally, the Village contended that parking motor vehicles is different than storing vehicles on private property.

The Wisconsin Court of Appeals concluded that nothing in the state traffic regulations provides that a municipality can regulate unregistered vehicles on private property and that Wis. Stat. § 340.01(25j) defines a junk vehicle as one that is inoperable, not legally inoperable.  Therefore, the Village’s definition was broader than the traffic regulation. The ordinance requires owners of junk vehicles to notify and return the vehicle’s certificate of title to the Department of Transportation, but requires owners of unlicensed vehicles to keep their vehicles out of the public’s view. As such, the Village’s argument regarding the purpose of the ordinance and the ordinance’s language itself suggest that the ordinance is not a traffic regulation and the Village did not enact it pursuant to the power granted under the state traffic regulations.  Instead, it appears the ordinance may have been enacted using a different power, such as its zoning authority. However, because it could not be determined from the record whether the ordinance in question was a traffic regulation or part of a different regulatory scheme, the Wisconsin Court of Appeals reversed and remanded the order to the circuit court to determine the validity of the Village’s ordinance.

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Getting caught up on Iowa legislative activities

Gary Taylor

This won’t take long.

The Des Moines Register ran an article that sums up the state of legislative activity during this year’s session.  Not much going on with any of the bills I’ve been tracking to-date.  Here is what I have since my last review:

SF390 –  discussed here – passed the house 97-0, and was sent to the Governor for his signature.

HF307 moving Homeland Security and Emergency Management from the Department of Public Defense into its own department, passed the Senate 48-0 and was sent to the Governor for his signature.

Other bills have been referred on to full committees: HF184, HF268, HF516, SF420 (formerly SF70).

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Linn County’s denial of ag exemption upheld by Iowa Supreme Court. Subtitle: “A residential tail wagging a farmland dog”

Gary Taylor

by Gary Taylor

Lang v. Linn County Board of Adjustment
(Iowa Supreme Court, March 29, 2013)

The Court of Appeals case from which this appeal originated is here.  The Supreme Court provided an extensive set of facts that gives readers a more complete picture of the situation.  Space does not permit a complete review here, other than to say that the facts illustrate Lang’s creative attempts to gain an ag exemption for several parcels with houses he developed subsequent to his subdivision of his original 49-acre tract.  The reader is strongly urged to review the Supreme Court opinion for a detailed factual background.

Supreme Court’s legal analysis.  The Supreme Court began by pointing out the differences between the statutory language of the ag exemption as it was originally adopted, and as it appears today.

Iowa Code 335.2 Prior to 1963:

No regulation or ordinance adopted under the provisions of this act shall be construed to apply to land, farm houses, farm barns, farm outbuildings or other buildings, structures, or erections which are adapted, by reason of nature and area, for use for agricultural purposes as a primary means of livelihood, while so used.

Today (after 1963):

Except to the extent required to implement section 335.27, no ordinance adopted under this chapter applies to land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.

The amendment put the focus of the exemption on whether the “land, farm houses, farm barns, farm outbuildings or other buildings or structures” are “primarily adapted” for the asserted agricultural purpose, when considering the “nature and area.”  It turned the focus away from the use of the property as a “primary means of livelihood” for the landowner.  Thus the amount of income generated for the landowner by agricultural activities, as a percentage of the landowner’s total income, is no longer the focus.

However, the legislature at the same time added the requirement that the property be “primarily” adapted to agricultural use. In our view, this authorizes the county to deny the farmhouse exemption when the record, as here, indicates that the agricultural activities are basically a sideline designed to obtain an agricultural zoning exemption for the owners’ residence. The Board was entitled to look at the relative size, value, and construction date of the house compared to the scope, value, and duration of the claimed agricultural activities. For example, we do not believe the legislature intended to allow a homeowner to avoid county zoning requirements simply by having a tomato patch in his or her backyard….[We believe]  that the “primarily adapted” test allows county zoning authorities to consider the overall importance and underlying purpose of the agricultural activities in question.

“In our view, the Zoning Board of Adjustment (ZBA) could reasonably conclude that the Langs’ large, manorial residence on the 6.52 acres was a residential tail wagging a farmland dog and that the property as a whole was not primarily dedicated to agriculture. Although the Langs had recently planted small trees, they could not be expected to mature for many years and could be viewed as having an aesthetic purpose. Photographs indicated that the other claimed farming activities were not substantial in scope, even relative to the size of the parcel. The Langs presented no evidence of actual production, beyond the bare claims they made in their application for an agricultural exemption.”  The Lang’s claimed that the county improperly applied a minimum acreage test and flunked the Langs’ primary residence on a 6.52-acre parcel simply because it was not big enough; however the Supreme Court disagreed, noting that the “zoning administrator’s report, the recording of the 2004 ZBA hearing, and the ZBA’s 2-2 decision all indicate that the county did not summarily reject the application based on parcel size.  This is not to say that the size of the parcel should not be a consideration.  “If size were not relevant, then nothing could prevent a developer from obtaining a zoning exemption for an entire development subdivided into half-acre lots so long as some agricultural product were planted in the development and tended by the homeowners.”

Because the Linn County Zoning Ordinance prohibits more than one dwelling on a single undivided parcel of land, the Langs sought an agricultural exemption for a second house built on a 43.3-acre tract of land.  The second house was occupied by Langs’ son.  The Court observed that “regardless of the status of the land, Iowa Code 335.2 anticipates that a county may consider whether a specific building or structure [on the land] is primarily adapted for use for agricultural purposes.”   The Court found that substantial evidence existed to support the ZBA’s finding that the second house under the son’s tenancy would not be “primarily adapted” for agricultural purposes.  Referencing an Ohio Court of Appeals case, the Court stated that “When landowners build an additional house on their land, rent it out, and then want to claim it as another exempt farmhouse, it is appropriate for the county to ask how much time the tenants of the house spend on farming activities. Otherwise, a farmer could erect multiple homes and avoid county zoning simply by assigning nominal farm tasks to an occupant of each home.”

The Court concluded by observing that “the Langs’ construction of various homes on what began as one property had the potential to cause problems for third parties down the road. When a house has been erected by taking advantage of an agricultural exemption, but then is later sold to a person who is not engaged in agriculture, as occurred in this case with respect to [one of the houses on a subdivided parcel], the house becomes a nonconforming use, which limits the new owner’s ability to modify or, if necessary, to rebuild the house.

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Plaintiff’s brief inadequate to maintain claim with Wisconsin Court of Appeals

by Kaitlin Heinen

Patrick J. Riley, Mary J. Riley, and Daniel S. Riley v. Town of Nasewaupee
(Wisconsin Court of Appeals, March 5, 2013)

Betty Riley acquired a 42-acre shoreline property in Door County in 1988. She died in March 2007, and her children–Patrick, Mary, and Daniel–received the property from her estate in July 2011. Much of the property is wetlands. In 1994, the wetlands were mistakenly removed from zoning maps. This error resulted in a 1-year increase in the assessed value from $256,500 to $431, 400. Betty never objected to the tax assessment. In August 2010, the Door County zoning administrator informed the Rileys of the error and indicated that the zoning maps had been remedied. In September, the Town of Nasewaupee mailed a preliminary notice of assessment the 2010 value of $841,900 would be reduced to $498,500 for 2011. In November 2011, filed a claim for recovery of taxes overpaid from 1994-2010, totaling $68, 662.48. The Town disallowed the claim, so the Rileys brought suit in circuit court. The court granted the Town’s motion, so the Rileys appealed to the Wisconsin Court of Appeals.

The Rileys argued that the time limitations in Wis. Stat. § 74.35(5) should not apply to them. That section requires that a claim for recovery of unlawful taxes be filed with the taxing district “by January 31 of the year in which the tax is payable.”  So this would require the Rileys to have submitted a claim about their 2010 real estate taxes no later than January 31, 2011.  Since the Riley’s claims was filed with the Town in November 2011, it was too late to contest any taxes from 2010 or earlier. However, the Rileys contended that they did not have an enforceable claim under Wis. Stat. § 74.35 “until the [a]ssessor filed a Notice of Assessment setting the new assessed value … on May 18, 2011.”  The Rileys did not provide any legal authority or argument; rather, in their filing with the Court of Appeals they simply restated the circuit court’s ruling and “boldly declare, ‘This cannot be the law.’” The Rileys concluded their brief, stating that “the provisions of [Wis. Stat.] § 70.43 impose upon the assessors the duty of correcting the assessment and making provision for reimbursement of the parties affected.” According to the Court, “Unfortunately, the Rileys fail to explain the significance of this, much less develop a reasoned argument.  Further, in their poorly edited reply brief, the Rileys clarify that they are not relying on § 70.43, ever though they insist that statute is ‘part of the context of this case.'”

“The Wisconsin Court of Appeals does not decide issues that are inadequately briefed or are unsupported by legal authority.” The Rileys’ brief lacked both reasoned legal argument and supporting legal authority, so the Wisconsin Court of Appeals affirmed the circuit court’s ruling.

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The notion of a house without a garage is “disagreeable in Wisconsin”

by Kaitlin Heinen

State of Wisconsin v. Manitowoc County Board of Adjustment
(Wisconsin Court of Appeals, February 13, 2013)

In 2010, Rebecca Rach built a house on Wilke Lake in the Town of Schleswig.  When she purchased another piece of land at the back of her residence, the Town built a road on part of it to give 4 lake residents access to a main road. The remainder of the land is wetland. Rach petitioned the Manitowoc County Board of Adjustment for a variance to construct a 4’ x 50’ walkway and a 40’ x 40’ patio adjacent to a concrete porch on the east side of her house, facing the lake.  The patio would intrude 49 feet into the 75-foot required shoreland setback.  Rach argued that without the variance, she would suffer an unnecessary hardship because there was no other place on her lot to construct a patio. Board members conducted an on-site inspection of Rach’s property and held a hearing on her request.  Rach and her husband presented a landscaping plan showing that the patio would be built with materials and plantings to aid infiltration and catch any runoff.  The Town stated in a letter that its board and planning commission both approved Rach’s variance request.  However, the Wisconsin Department of Natural Resources, by a letter from a shoreland zoning specialist, opposed the variance, citing the lack of unnecessary hardship and the negative effects the patio and walkway encroachment would have on the lake.

Rach’s husband testified that they could not have built their house further back because the land behind their house was for sale after they had built and that, with the remainder of the land being wetland, there is no room to build a patio.  A Board member even commented, “I don’t think [the DNR shoreland zoning specialist] realized that…. He wasn’t there [at the property].” So the Board concluded that Rach faced an unnecessary hardship because the wetlands behind the house is not suitable for a patio; the landscaping of the patio would handle runoff; and the variance would not be against the public interest because the landscaping would screen the patio from the lake, beautify the shoreline, and create a buffer to prevent runoff.  The Board reduced the walkway’s width from 48 to 42 inches and the patio’s length from 40 feet to 20 feet, cutting the setback intrusion to 29 feet. The variance was approved as modified.  The State filed a complaint in the circuit court, which affirmed the Board’s decision.  So the State appealed to the Wisconsin Court of Appeals.

The Wisconsin Court Appeals reviewed the Board’s decision by applying the substantial evidence test to determine whether the evidence before the Board was sufficient. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” In its review, the court must presume the correctness of the Board’s decision. When a variance request is before the Board, it must decide whether denying the variance would impose an unnecessary hardship on the landowner. Unnecessary hardship must be based on conditions unique to the property itself and cannot be self-created. The State argued that Rach failed to produce sufficient evidence of “unnecessary hardship” and that the hardship Rach faced was self-created because she built the house a year before applying for the variance, choosing its size and where to situate it on the lot.  The State also argued that a patio is not essential and if Rach wants one she can build it, instead of a garage, at the back of the house. However, the court reasoned that even if Rach could construct the patio on the wetland, substantial evidence existed to support the Board’s decision because the State’s arguments ignored that building the patio behind the house would leave Rach without a garage—”disagreeable in Wisconsin.”

The Board must evaluate the hardship with the purpose of the zoning restriction in mind, and a variance cannot be against the public interest. The purpose of a shoreland zoning ordinance “is to protect navigable waters and the public rights therein from the degradation and deterioration which results from uncontrolled use and development of shorelands.” Since the Board considered the purpose of the ordinance and after viewing the site and taking testimony from the Town and the DNR, it modified the variance by imposing conditions designed to protect the shoreland setback zone. It found that, as modified, the construction would not be against the public interest. The Board acted within its authority, so the Wisconsin Court of Appeals concluded that the Board’s decision to grant the variance to Rach was supported by sufficient evidence.

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More action this week

Gary Taylor

I overlooked a bill from this week:

SF390 –  In 2008 the legislature put into place a law requiring an inspection of private sewage disposal systems at the time of some types of title transfers. Title abstracts to such property were required to include documentation of the inspection. In 2010 the title abstract requirement was eliminated. This bill adds a retroactive applicability provision to the 2010 action, making the elimination of the title abstract requirement retroactive to July 1, 2009, which is the original enactment date of the title abstract requirement.

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Legislative action as of March 20

Gary Taylor

HF268 eliminating smart planning from the Iowa Code.  The House Local Government Committee held an interesting committee hearing Tuesday morning.

HF219 regarding eminent domain, passed the house 93-6, and was sent to the Senate.

HF359 which would nullify the Mall Real Estate case, passed the house 90-10, and was sent to the Senate.

HF307, creating the Department of Homeland Security and Emergency Management, passed the house 100-0 and was sent to the Senate.  The Senate bill is SF289.

HSB75 concerning special assessments, is now HF588.

HF561 would provide a property tax exemption for property used as a fruit and/or vegetable garden by the city or a non-profit(?).

HF516 would place limitations on the provision of water services by rural water associations to areas within two miles of a city after July 1, 2013.  Itexpands the notice requirements placed on the rural water association.  It also substantially increases the required contents of the water plan beyond just showing the new area the district is to serve. Among the new requirements of the plan is the area the district or association intends to serve within four years following the date that the plan is filed with a city; information relating to federal financing, fire protection service capacity, and information related to the number of customers served or intended to be served.  Current law provides that a city may waive its right to provide water service within the areas designated in a water plan. The bill provides that a city may rescind such a waiver after four years if the water district or association has not provided service to the area. The bill provides a definition for the term “economically or  adequately served” related to the provision of water service by a district or association. It provides that a district be compensated for distribution facilities acquired by a city through buyout procedures and provides a formula for determining the amount of compensation to be paid. The bill further provides that a city may provide compensation to a district or association for service that was proposed or intended to be provided by the district or association at the time of acquisition. The bill further provides that if the city or city utility cannot reach an agreement for the retention of certain rights by a district or association, that the issues may be submitted to mediation.

HF498 is a companion to SF280, making new electrical installations on farms subject to the inspection and enforcement provisions  of Chapter 103, which includes requiring the submission of a request for inspection, payment of inspection fees, performance of an inspection, and condemnation and disconnection orders and appeal procedures

SF70 requiring American products in public projects is now SF420

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New bills before funnel

Gary Taylor

HF388 –  The board of cosmetology sets the minimum physical requirements for schools of cosmetology arts and sciences (who knew?). HF388 would require a minimum floor space of 1,200 square feet for a school that teaches only one course of study each for nail technology, esthetics, or electrology.

HF385 – This bill would allow a county board of supervisors to have not more than three nonbinding questions related to the duties, powers, organization, or policies of the county submitted to the registered voters of that county at a general election.  My immediate reaction is that this could apply to rezoning applications.

SF325 – This bill would prohibit the bylaws of homeowners associations or of housing cooperatives from restricting individual owners from displaying political signs less than days prior to any election and days following any election, and cannot restrict the size of the sign to less than 750 square inches. It also would allow signs advocating for or against a specific issue to be displayed at any time.

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MN county board had reasonable basis for denying conditional permit for asbestos disposal

by Kaitlin Heinen

VONCO IV Austin, LLC v. Mower County, et al.
(Minnesota Court of Appeals, February 19, 2013)

VONCO IV Austin, LLC challenged the Mower County Board of Commissioners’s decision to deny its conditional use permit to dispose of friable asbestos at its landfill facility. On appeal, the Minnesota Court Appeals must affirm the Board’s decision unless it was unreasonable, arbitrary, or capricious. VONCO first argued that the Board’s decision was arbitrary and capricious because the findings of fact were adopted after the resolution without using motion, second, and majority vote procedures. Minn. Stat. § 15.99 (2010) states that a board must adopt findings contemporaneously with its decision to deny a conditional use permit, or at the latest at “the next meeting following the denial of the request but before the expiration of the time allowed for making a decision.” The Minnesota Court of Appeals concluded that the Board adopted its findings within a reasonable time after its denial. When the Board denied the conditional use permit, it had passed Resolution #28-12, which included the factual basis for its decision. The factual basis was nearly identical to the Board’s findings of fact, which were adopted at the same meeting. After discussion, the findings of fact were written down and signed by the vice-chairperson, which the Minnesota Court of Appeals held was consistent with § 15.99.

VONCO also argued that there was insufficient evidence in the record to conclude that there would be a problem with asbestos dust, and that such a problem would negatively impact property values. The Minnesota Court of Appeals disagreed and held that the record contained testimony that strong winds tend to blow dust and other debris from VONCO’s landfill onto neighboring properties. County staff members indicated that friable asbestos poses a risk of becoming airborne, and that this is especially dangerous because any exposure to asbestos dust creates a serious health risk. One county commissioner testified that he believed the addition of friable asbestos would negatively impact property values, based on his experience as a professional real estate appraiser. Because county officials have sufficient expertise to determine impacts on property values, the Minnesota Court of Appeals concluded that the evidence was sufficient to support the denial of the conditional use permit.

VONCO further argued that the evidence in the record was insufficient because some of it was in the form of neighbor testimony. The board “may consider neighborhood opposition only if based on concrete information.” That is, vague “concerns” are not sufficient. However, neighbor testimony that is concrete, describes current conditions, and includes information based on scientific reports provides a sufficient basis to deny a conditional use permit. The Rythers, owners of a neighboring property, testified that the winds frequently blow dust and debris from VONCO’s property onto theirs, that a recent fire at VONCO’s site caused their home to be inundated with dust and ash, and that these conditions make it unlikely that VONCO would be able to prevent friable asbestos from escaping. The Rythers also provided the Board with copies of complaints, enforcement actions, and orders from the EPA regarding VONCO’s improper disposal of materials, including asbestos. Because the Rythers’ testimony was concrete and not limited to “concerns,” the Minnesota Court of Appeals concluded that this evidence was sufficient to support denying the conditional use permit request.

Finally, VONCO argued that the Board’s decision is arbitrary and capricious because the Board failed to consider reasonable conditions before denying the conditional use permit. The Board’s meeting notes showed that the Board considered more than 30 recommended conditions. Because the Board considered the possibility of approving the conditional use permit  with conditions, the Minnesota Court of Appeals concluded that it was not arbitrary and capricious for the Board to find these conditions insufficient and deny the request. The Mower County Board of Commissioners’ decision was affirmed.

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Legislative action, week of February 25

Gary Taylor

HF359 is the successor to HSB121 – discussed here, regulating obscene material in response to the Mall Real Estate case.

HF342 makes amendments to Chapter 237A concerning child care.  Its companion bill is SF201.  It would increase the number of children allowed in child care homes under certain circumstances. Currently, a child care home that is not registered may provide child care to five or fewer children. The bill provides that a child care home in a “small community” (a city of less than 10,000 persons or a county of less than 10,000 persons) may provide child care for between six and eight children for up to three hours a day as long as a parent of each child signs a waiver. The bill also allows a child care home in a small community to provide child care for nine or 10 children for up to three hours a day if each parent signs a waiver and the child care home provides an additional employee during periods when the child care home provides care for nine or 10 children.

HF331 would amend Iowa Code 123.40.  It provides that the premises which had been covered by a liquor control license, wine permit, or beer permit that was revoked could not be relicensed for three years. Current law provides that the premises can be relicensed after one year.

HF330 is also related to liquor licenses.  This bill provides that a person or club holding a liquor license or retail wine or beer permit could not knowingly permit or engage in criminal activity in parking lots and areas adjacent to the licensed premises that are used by patrons of the liquor licensee or permittee. Current law limits this prohibition to criminal activity in parking lots and areas adjacent only to liquor licensees or permittees authorized to sell alcohol for consumption on the licensed premises. A person who violates this new provision would be subject to licensing sanctions and guilty of a simple misdemeanor.

HF328 would require an attorney representing a city or a part-time county attorney to disclose all conflicts the attorney has between the interests or matters of the city or county and those of the attorney’s other clients. It would require the attorney to complete an annual disclosure form provided by the judicial branch.  It would also require the attorney with a conflict to withdraw from representation of the city or county, as applicable, regarding the matter in which the conflict exists unless (1) written consent is received from the attorney’s client, and (2) the elected body adopts a resolution describing the conflict and giving consent to representation on the matter.

SF285 is the companion bill to HF122 regarding common interest communities, discussed here.

SF280 would make new electrical installations on farms subject to the inspection and enforcement provisions Chapter 103, which includes requiring the submission of a request for inspection, payment of inspection fees, performance of an inspection, and condemnation and disconnection orders and appeal procedures.

SF275 would create a manufactured housing program fund within IFA to further the goal of providing affordable housing to Iowans. The money in the fund would provide funding to financing agents or financial institutions to finance the purchase by an individual of a manufactured home that is in compliance with all applicable laws and standards applicable to manufactured homes and manufactured housing.

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