Year: 2015

Plain language of right-of-way deeds grant easements

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by Andrea Vaage

Sargent County Water Resource District v. Mathews
North Dakota Supreme Court, December 1, 2015

Paul Mathews sought to control land rented to him by Nancy Mathews and Phyllis Delahoyde. In response, The Sargent County Water Resource District filed for declaratory relief in November 2012 as the successor in interest to the Sargent County Board of Drain Commissioners. The Board obtained interest in the property through right-of-way deeds signed in 1917 and 1918.

At issue is whether the deed conveyed an easement or an estate in fee. The district court found the deeds granted fee title in property to the District. The Mathews appealed. The Mathews argued the right-of-way deeds from 1917 and 1918 unambiguously show an intent to convey easements for a right of way when read in plain language. In addition, if the deeds were ambiguous, the Mathews argued the district court interpretation of parol evidence is erroneous. When a deed is unambiguous, meaning of the deed is determined from the document itself. When it is found to be ambiguous, extrinsic evidence may be considered.

The deed reads, in part, that owners:

“grant, sell and convey, and forever release to the people of the County of Sargent, in the State of North Dakota, right of way for the laying out, construction and maintenance of a public drain, as the same may be located by the Board of Drain Commissioners, through said above described lands, being a strip of land . . . [described]. And we hereby release all claims to damages by reason of the laying out, construction and maintenance thereof through our said lands.”

The Court analyzed the deed to understand the grantor’s intent. The deed grants a “right of way” specifically for “construction and maintenance of a public drain” and does not convey an estate in fee. When the granting clause includes the phrase “right of way,” courts have found the deed usually conveys an easement. The Court found the deed was unambiguous and conveyed an easement when read in plain language.

The decision of the district court was reversed.

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Wishing you all a Happy Zombie Christmas

Gary Taylor

A “zombie nativity” that spurred complaints and zoning violation notices last year is on display again in a suburban Cincinnati, Ohio yard, with a change to avoid fines.  The change?  The owner has removed its roof.  (“The stars in the sky look down where the zombies lay….”)  The Sycamore Township zoning administrator said the issue was always about the structure and zoning rules, not the zombie figures.

Happy holidays to all – walkers and humans alike – from the BLUZ.

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Wisconsin’s bright line “building permit rule” precludes takings claim

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by Hannah Dankbar

McKee Family, LLC and JD McCormick Company, LLC v City of Fitchburg
Wisconsin Court of Appeals, November 5, 2015

The City of Fitchburg rezoned property owned by McKee before McKee was able to apply for a building permit. The rezoning reclassified the property from Planned Development District (PDD), which allows high-density and mixed-use development, to Residential-Medium (R-M) district, which permits lower-density development. McKee argued that McKee had a vested right in the preexisting zoning designation and that the rezoning constituted a taking. The lower court concluded that McKee did not have a vested right in the preexisting zoning classification, and McKee appealed.

In Fitchburg, before a property owner can develop land under a PDD classification they have to go through multiple steps including: submitting a proposed general implementation plan to be approved by the City’s Plan Commission and the Fitchburg Common Council; if approved the property owner submits a specific implementation plan before applying for a building permit.  Fitchburg approved the lots in question in 1994 when the McKee’s predecessor owned the lots. In 2008 JD McCormick, working with McKee, submitted the specific implementation plan while two Fitchburg alders petitioned the City to rezone the property. After public hearings, and before reviewing the specific implementation plan, the Council rezoned the property. THe rezoning took effect before any commission review of the specific implementation plan.  The Council concluded that the rezoning was “in the best interest of maintaining a stable surrounding neighborhood to reduce the lots.”  The primary issue was whether McKee had obtained a vested right in the preexisting zoning designation, despite not being eligible for and not applying for a building permit.

The court concluded that there is no vested right based on Wisconsin’s bright-line “building permit rule.”  Wisconsin focuses on building permits and applications for permits to define the point at which a property owner develops a vested interest in the property. Neither McCormick nor McKee ever applied for or received a building permit. McKee argued that Wis. Stat. § 62.23(7) creates private contractual rights for developers, but the Court did not interpret the statute that way. There is nothing in the statute that obligates a municipality to maintain a specified zoning designation. To the contrary the statute authorizes municipalities to amend or repeal zoning designations as long as they follow specific procedures (§62.23(7)(d)(2) and (3)).  McKee argued that they made multiple investments in the property without applying for the permit and these investments demonstrate a vested right and a contract with the City. The court rejected this argument in a prior Wisconsin Supreme Court case, and likewise rejected it here.  The trial court determination was upheld.

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Bass Pro Shops creates border war in Georgia

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by Hannah Dankbar and Gary Taylor

Kemp v Monroe County
Georgia Supreme Court, November 5, 2015

At issue is the current boundary between Bibb County and Monroe County, Georgia.  Not coincidentally, the final determination of the boundary line will determine which county is entitled to the roughly $1.3 million in tax revenue generated by a Bass Pro Shops retail store and nearby homes. Monroe County supports a survey that puts the line a few hundred feet south of where Bibb thinks it is.

The dispute over the county boundary line began in 2005. The Governor sent a land surveyor to identify the boundary line according to state statute. The survey took place in 2008 and in 2009 the final report was submitted to Georgia’s Secretary of State per state statute. Bibb County filed exceptions to the survey (which would have put Bass Pro Shops in Monroe County) and Monroe County defended the survey. The Secretary of State assigned the hearing to the Special Assistant Administrative Law Judge in 2011, who accepted the survey. The Secretary of State then held oral arguments of his own and visited the site.  The Secretary chose to reject the survey, which left the boundary line undetermined.

Monroe County petitioned for mandamus, which the trial court granted  The trial court directed the Secretary to accept the survey and establish the boundary. The Secretary and Bibb County appealed asking: (1) whether the actions of an official under OCGA §36-3-20 et seq. may be subject to a writ of mandamus; and (2) if the mandamus is permissible, whether the Court erred in granting the mandamus petition and ordering the Secretary to record the survey.  During this time the Secretary informed all parties of his intent to hold a separate hearing and accept new evidence. Monroe County objected and the trial court ordered the Secretary to not hold the hearing, calling it a “gross abuse of discretion.”

The Supreme Court reversed the decision of the trial court. Counties do not have a right to a “particular process by which the Secretary is to receive evidence and reach a decision, as these matters fall within the Secretary’s discretion.” A court cannot “preclude the Secretary from allowing the record to be reopened and new evidence developed.” There is no statute constraining the Secretary of State to a particular process, including re-opening evidence. The trial court’s conclusion that it is unfair to hold an additional hearing presents a question for the legislature, not the court. The court is only allowed to determine if the Secretary’s actions are arbitrary or capricious; no such finding was made.

The trial court’s order was reversed and remanded. If either party wants to challenge the Secretary’s final decision they must show that the Secretary acted arbitrarily and capriciously or grossly abused his discretion.

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Spring 2016 Intro to Planning and Zoning workshop dates and locations

Gary Taylor

Here are the dates and locations for the Spring 2016 Introduction to Planning and Zoning workshops:

Monday, March 21 – Okoboji – Arrowwood Resort, 1405 Highway 71

Tuesday, March 22 – Clear Lake – Best Western Holiday Lodge, 2023 7th Ave North

Tuesday, April 5 – Decorah – Hotel Winneshiek, 104 East Water Street

Wednesday, April 6 – Cedar Rapids – Clarion Hotel & Convention Center, 525 33rd Ave. SW

Monday, April 11 – Sioux City – Bev’s on the River, 1110 Larsen Park Road

Tuesday, April 19 – Creston – Supertel Inn & Conference Center, 800 Laurel Street

The link to the on-line registration page will be provided here in January.

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Value of railroad corridor for just compensation purposes must include remnants of railroad’s use

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by Hannah Dankbar and Gary Taylor

Rasmuson, et al v. United States
U.S. Court of Appeals for the Federal Circuit, October 5, 2015

Rasmuson and others own land adjacent to three railway corridors in Central Iowa. Pursuant to the National Trail System Act Amendments of 1982, the Surface Transportation Board issued Notices of Interim Trail Use (NITUs) for the corridors. NITUs “preserve established railroad rights-of-ways for future reactivation of rail service” and permit the railroad operator to cease operation without abandoning any “rights-of-way for railroad purposes.” The trial court found that “but for issuance of the NITUs, under Iowa law the railway easements would have reverted back to plaintiff adjacent landowners upon cessation of railroad operations, and plaintiffs would have enjoyed land unencumbered by any easement.”  The trial court thus found that a taking occurred, then held a bench trial to determine just compensation.  The trial court determined just compensation to be the value of the land as raw land (without any of the railroad’s improvements), and the United States appealed.

A landowner subject to a taking is entitled “to be put in as good a position … as if his property had not been taken.” In the case of an easement, the conventional method of valuation is the difference between the value of the property before and after the government’s easement was imposed.  The issue before the Court was a narrow one: Whether, as the government argued, the “before” condition was the property with the physical remnants of the railway’s use (with tracks, ties, earthen embankments, poor soil conditions) or, as the plaintiffs argued, without such physical remnants (raw land pre-railroad development).

The Court concluded that the fair market value of the land “before” the taking was the value including the physical remains of the railway.  The “before” condition was the property “before” the issuance of the NITUs.  Without the NITUs the land would have returned to the landowners with the physical remains of the railway since the railroad was under no legal obligation to remove the physical remnants of railroad use, and no evidence was introduced that the railroad would have done so on its own.  An appraisal of the land to determine just compensation must therefore take into account the remnants of the railway.

The trial court’s decision was vacated and remanded.

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Comprehensive plan amendments met Idaho statutory requirement for an “analysis” of power plant and utility locations

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by Andrea Vaage and Gary Taylor

Burlile v. Payette Board of County Commissioners
Idaho Supreme Court, September 25, 2015

Alternate Energy Holdings Inc. (AEHI) became interested in constructing a nuclear power plant in Payette County, Idaho in 2009. The property the company was targeting was zoned agricultural. AEHI petitioned the County to revise the comprehensive plan so that the property could be zoned industrial. AEHI also submitted a Rezone and Development Agreement Application to the Payette County Planning and Zoning Commission. The County accepted the petition to amend the comprehensive plan and included additional language relating to energy producers looking to site facilities in the County. After the development agreement was made public in various forms, the County held a public hearing in December 2010 before the Planning and Zoning Commission (PZC), during which the PZC recommended approval of the application for the nuclear power plant.

A neighboring landowner, H-Hook, and others appealed the decision to the Board of Commissioners (Board). A revision to the development agreement was made public and the Board received additional testimony from the public. In August 2011, the Board approved the decision of the PZC to approve the development application. H-Hook and other parties sought judicial review. H-Hook argued that (1) the comprehensive plan was invalid because it is missing components addressing power plant siting and power transmission corridors as required by Idaho Code section 67-6508; (2) the rezone was illegal spot zoning; and (3) the notice and hearing procedures employed by the County were in violation of due process. The district court rejected all arguments. H-Hook appealed.

Invalid Comprehensive Plan.  H-Hook argued the comprehensive plan was not valid because it did not include sufficient language regarding siting of a nuclear power plant. Idaho Code 67-6508(h) requires a comprehensive plan include “an analysis showing general plans for sewage, drainage, power plant sites, utility transmission corridors…”  H-Hook focused on the requirement for an “analysis” and argued that the comprehensive plan should contain a certain measure of detailed consideration of the subject. The Court, however, found that the requirement of a “general” plan diminishes the degree of required “analysis.” Reading the “plain, obvious, and rational meaning” of the terms “general” and “analysis,” the Court concluded that the comprehensive plan, as amended, met Idaho Code 67-6508(h).  It found that more detailed language would be difficult for a county to adopt and implement, due to the complicated and changing nature of energy facilities.

Illegal Spot Zoning.  H-Hook argued that the rezone from agricultural to industrial was an impermissible “type one” spot zoning.  Citing prior caselaw, the Court stated that a claim of “type one” spot zoning “is essentially an argument that the change in zoning is not in accord with the comprehensive plan.”  The Court determined that the claim of “type one” spot zoning failed because the amendment to the comprehensive plan designated the property as Industrial prior to the rezoning to Industrial.

“Type two” spot zoning in Idaho occurs when a parcel is singled out for treatment different from the uses permitted in the rest of the zoning district for the benefit of an individual property owner.  The Court disagreed.  The Board concluded that the industrial use designation “encompasses existing industrial operations, such as CAFOs and the Clay Peak Landfill” within a few hundred feet of the site in question.  The Board’s factual determination is entitled to deference when supported by substantial and competent evidence, and the Court determined that this standard was met.

Due Process Violation.  H-Hook argued that it was not given adequate time to review revisions to the development agreement; however, the County made the application available to the public in physical form and on a website well before the hearing before the PZC in December 2010. The application with revisions was made public eight days before the hearing. When the issue went before the Board, the County provided a color-coded version of the revision to the public eleven days before that meeting. These efforts gave H-Hook adequate time to review the development agreement.  No due process violation occurred.

The decision of the district court was affirmed.

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Co op days shy of being able to claim adverse possession

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by Andrea Vaage and Gary Taylor

Quality Ag Service of Iowa Inc. v. Burlington Northern Santa Fe Railway
Federal 8th Circuit Court of Appeals, October 30, 2015

At issue is the ownership of a sidetrack adjacent to two Burlington Northern Santa Fe Railway (BNSF) tracks running through Melrose, Iowa. Quality Ag of Iowa purchased land on August 25, 2000 from Farmers Coop, which purchased land from BNSF in 1994.  The sale did not include the sidetrack adjacent to the purchased parcel; however, Quality Ag has used the sidetrack to receive fertilizer shipments since 2000. On August 3, 2010, one of BNSF’s trains derailed east of the sidetrack. BNSF used the sidetrack to store equipment after the derailment, preventing Quality Ag from using the sidetrack for fertilizer shipments. Instead, Quality Ag was forced to truck fertilizer in at increased expense.  Quality Ag sued BNSF for damages due to the increased cost of delivery, and property damages resulting from the derailment.  The claim was dismissed and an appeal ensued.

Quality Ag’s owner testified that he believed the sidetrack was part of the land purchased from Farmers Coop because a Farmers Coop representative told him that it did at the time of the sale. He also testified that BNSF entered into a written agreement with Quality Ag that BNSF could use the sidetrack if BNSF maintained it; however, the owner was unable to produce this agreement for trial. Conversely, BNSF was able to produce a land survey showing they owned the sidetrack. On appeal, Quality Ag raised the claim that it owns the sidetrack due to adverse possession.

In order to prove a claim of adverse possession a party must “establish hostile, actual, open, exclusive and continuous possession, under a claim of right or color of title, for at least a ten year period.” Quality Ag would need to establish that it met those conditions from August 25, 2000 to August 25, 2010. Since BNSF used the track for equipment storage on August 3, 2010 and beyond, after the derailment, Ag Services failed to show continuous sole use for a full ten year period.  The maintenance agreement claim also failed because Quality Ag was unable to produce the maintenance agreement or othershow it owned the sidetrack.

The decision of the district court was affirmed.

http://media.ca8.uscourts.gov/opndir/15/10/143025P.pdf

 

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News from around Minnesota: Islamic group alleges RLUIPA violation in denial of conditional use permit for cemetery

Gary Taylor

Castle Rock Township, in Dakota County Minnesota (a portion of St. Paul, and south) rejected an application submitted by the original property owner, and a subsequent owner, for a proposed Islamic cemetery to be located in the Township. The Minnesota chapter of the Council on American-Islamic Relations (CAIR-MN) has asked the US Department of Justice to investigate whether the township acted with an anti-Muslim bias in rejecting the application; specifically, whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) was violated when the Castle Rock Township Board rejected the application for a conditional use permit after the Planning Commission had recommended that the board approve it. At the time the application was filed cemeteries were allowed as conditional uses in the zoning district where the land is located. After the denial, however, the Castle Rock Township Board changed the zoning ordinance so that cemeteries were no longer a permissible use in that district.  More on the story from the Minneapolis Star Tribune here.

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News from around Minnesota: St. Cloud MN rezones land for solar garden

Gary Taylor

The St. Cloud City Council recently voted to rezone land to create a place for a solar garden.  Solar gardens are essentially tracts of land on which solar panels are built. The panels are then connected to the power grid. Garden “subscribers” buy into the project and receive a credit on their electric bill.

Minnesota passed a law in 2013 that requires utilities to get at least 1.5 percent of their electricity from solar by 2020.  The law has put Minnesota on the front lines of solar garden development nationwide.

A good article on solar gardens and the zoning issues associated with them is here.

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