Local Officials Permissive Interpretation of Zoning Ordinance is Acceptable

by: Sarah L.C. Runkel

Gustavson v Board of Adjustment of Buena Vista County and Snyder
(Iowa Court of Appeals, September 12, 2018)

In 2016 Mark Snyder purchased a plot of land with an existing cabin. The same year, he demolished the existing cabin under permit, and applied for a zoning permit to construct a new cabin on that same property. Although the property was too small for a residential use under the code, the zoning administrator accepted that the lot was legally nonconforming, and was accepted by the zoning administrator.

Soon after Snyder was issued a compliance permit, his neighbors, Steve and Janelle Gustavson, filed a notice of appeal to the Board, claiming that no structure could be built on nonconforming lots. Upon appeal, the Zoning Board of Adjustment unanimously voted to uphold the zoning administrator’s issuance of the permit.

The Gustavsons filed a petition for writ of certiorari in district court, claiming that the Board acted illegally and arbitrarily. The district court dismissed the petition, upholding the Board’s decision, which the Gustavons appealed.

Nonconforming Use

Nonconforming use, buildings or lots are those which were legally established, but do not fit with the current zoning ordinance, typically due to subsequent changes in zoning. These legal nonconforming uses are allowed to continue. However, alterations to nonconforming property is often prohibited, unless, “the changes are not substantial and do not impact adversely on the neighborhood.” Stan Moore Motors, Inc. v. Polk County Board of Adjustment, 209 N.W.2d 50 (Iowa 1973).

This determination is the responsibility of the city or county staff. Aiding in such decisions, it has been determined that, “A zoning ordinance should not be extended by implication to prevent a use not clearly prohibited.” Arkae Dev., Inc. v. Zoning Bd. of Adjustment, 337 N.W .2d 884, 886 (Iowa Ct. App. 1983).

The ordinance in question states:

Nonconforming Lots: In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this Ordinance, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of this Ordinance. This provision shall apply even though such lot fails to meet the requirements involving area or width, or both, of the lot; [ …] shall conform to the regulations for the district in which such lot is located.

Buena Vista Cty.Code of Ordinances § (2003)

Ordinance Language

Language utilized to establish ordinances may impact community members beyond anticipated intent. Since Buena Vista County’s Code of Ordinances specifically states that lot size and shape shall not prohibit construction of a single-family dwelling where they are permitted, denial of said structure would fall under prevention of a use not clearly prohibited. It could be understood that if a dwelling existed and is destroyed then reconstruction is prohibited. It could also be understood that one could replace a pre-existing dwelling. In this case the permissive interpretation of the zoning administrator and the zoning board of adjustment is acceptable.

The Iowa Court of Appeals found no error with the district court’s dismissal of the petition for writ of certiorari. The cabin can stay.

Subdivision is a local, often subjective, decision

by: Sarah L.C. Runkel

Bussanmas v. Des Moines
(Iowa Court of Appeals, July 18, 2018)

In 2015, Nicholas Bussanmas purchased a 2.34 acre lot zoned in a residential district in Des Moines, IA with the intention of subdividing the land for development. In April 2016, the City Plan and Zoning Commission recommended denying the proposal of the three-lot plat based largely on objections from neighbors that the lot served as a natural watershed. The Des Moines City Council denied the subdivision request in June finding principally that subdivision of the land may have negative effects on stormwater flow in the neighborhood.

Bussanmas appealed the decision to district court and then to the Iowa Court of Appeals. The Iowa Court of Appeals confirmed the decision of the district court, agreeing that the Des Moines City Council presented reasonable evidence that the property should not be subdivided according to Iowa Code Section 354.8 and Des Moines Municipal Code’s subdivision regulations.

The Court of Appeals concluded that:

“The Council clearly considered all of the relevant evidence and balanced that evidence as required by section 354.8(1), including the interests of Bussanmas, the neighbors, and the City, and it determined Bussanmas’s preliminary plat must be rejected. We agree with the district court that there is sufficient evidence to support the Council’s decision to reject the preliminary plat.”

According to Iowa Code Section 354.8, governing bodies shall review proposed subdivisions based on reasonable standards and applicable ordinances. Approval of a proposed subdivision is contingent upon the proposal’s conformity to the comprehensive plan, a balance between the proprietor, future use, and the public interest.

Subdivision is a process delegated to local governments. The decision for approval or denial should be based on reasonable evidence and evaluated by the standards in the comprehensive plan and local ordinances. This leaves the scope of influencing factors open to the reasonable interpretation of the local elected body.





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