Date of Board’s decision, not date of approval of meeting minutes, starts clock for filing appeal

by Gary Taylor and Hannah Dankbar

Hyde v. Sully County Board of Adjustment
South Dakota Supreme Court, September 28, 2016

Hyde appealed a decision from the Sully County Board of Adjustment (the Board) to grant a conditional use permit (CUP) to Ring-Neck Energy & Feed, LLC for an ethanol plant. The Board approved the CUP in a meeting held on July 20.  When the next met on August 4 it approved the minutes of the July 20 meeting.  Hyde challenged the approval in district court on August 20, which was 31 days after the Board’s approval but only 16 days after approval of the meeting minutes.  Hyde claimed that the approval was illegal due to violations of the open-meeting laws, and that an ethanol plant is not allowed under the Sully County zoning ordinance. The court determined that the petition was untimely, and Hyde appealed.

Regarding the timeliness of the petition in district court, state statute (SDCL 11-2-61) requires these petitions to be filed within 30 days of the day the decision is filed. Hyde argued that the relevant date for appeal purposes was the date of the Board’s approval of the meeting minutes, not the Board’s decision to grant the CUP.  The state statute requires that a petition set forth  “the grounds of the illegality” of the decision being challenged; thus the statute is referencing the date of the decision claimed to be illegal.  That decision would be made on July 20.  The Hydes do not claim any illegalities associated with the decision made on August 4 to approve the minutes.

Because the petition was not filed in a timely manner, the court did not hear the other arguments raised on appeal.

Constitutional claims not preserved in defense to nuisance citation

by Hannah Dankbar and Gary Taylor

Beaver and Sanderson v City of Davenport
Iowa Court of Appeals, April 27, 2016

Clifford Beaver and Pamela Sanderson have lived as common law husband and wife at their property in the City of Davenport for the past 14 years.  In 2014 the City sent a letter to  Beaver and Sanderson declaring their property a public nuisance under Davenport Municipal Code §8.12, after several neighbors circulated a petition seeking the property to be declared as such. The City’s letter explained that Sanderson’s “erratic behavior” prevented multiple neighbors from enjoying their property. The letter detailed nine directives regarding the activity on and around the property, including prohibitions against “criminal related activity”, harassment of neighbors and guests, calling authorities without cause, accosting people parking on the street, letting their dog run without a leash, and restrictions on using security cameras.  The letter warned Beaver that failure to abate the nuisance could result in citations and fines.

Beaver requested an appeal hearing. After a two-day hearing in April at which seven police officers and seven neighbors were called as witnesses, the hearing officer determined that there was sufficient evidence to support the nuisance abatement and approved the “Nuisance Abatement Plan” which included seven directives. One of the directives prohibited recording or pointing security cameras at any part of any neighboring structure.

Beaver challenged in district court the legality of the hearing officer’s order. The court ruled in favor of the City and Beaver appealed.

On appeal, Beaver argued the district court wrongly upheld the city’s abatement order that declared his property a public nuisance. He presented two claims: (1) “Davenport’s Nuisance and Residential Camera Statutes are unconstitutional on their face; and (2) unconstitutional as applied to his situation.

The court concluded that these challenges were not preserved for their review. These two claims were not presented in district court and therefore cannot be ruled on in the appeal.

The only constitutional claim that was addressed in district court was regarding the residential-camera regulations. Beaver claimed that the City’s ordinance unconstitutionally restricted his “right to maintain surveillance for the purpose of monitoring or protecting [his] property.” The ordinance limits the camera’s field of view to less than fifty-percent of a neighbor’s property. The court determined that this balances a property owner’s right to survey their property with their neighbor’s right to privacy.

On appeal, Beaver claimed that the hearing officer misapplied the camera ordinance. This specific attack on the abatement order was not ruled on in district court, so the appeals court refused to rule on it.

On appeal, the court did not reach any conclusions on the propriety, constitutionality or enforceability of the City’s order due to the issue of preservation. Because of these issues the orders from the lower court were affirmed.

 

 

 

 

 

Creek stabilization plan went beyond scope of original drainage easement

by Hannah Dankbar and Gary Taylor

Hamner v City of Bettendorf
Iowa Court of Appeals, October 12, 2016

Property owners in the Rolling Meadows subdivision complained that the City of Bettendorf overstepped their powers when they used a 25-foot “utility and drainage easement” established in 1968 for a stream bank stabilization project in 2015. Property owners claimed that the use of the 25-foot easement for stream bank stabilization constituted a taking and argued that they should be compensated for the land. The City did not offer any compensation for the removal of trees, change in land elevation, or the regrading of the property owners’ land.

The City argued that it was in the public interest to stabilize the creek, and that the easements granted in 1968 contemplated the type of work conducted by the City in 2015; thus the landowners were not entitled to compensation.

The district court ruled in favor of the landowners because the 1968 easement was granted to maintain the sanitary sewer, storm sewer, Stafford Creek drainage, and utility poles. The court determined that stabilizing the creek overstepped the City’s powers.  The City appealed.

On appeal, the Iowa Court of Appeals used a three-part test to evaluate the scope of the easement: 1) the physical character of past use compared to the proposed use; 2) the purpose of the easement compared to the purpose of the proposed use; and 3) the additional burden imposed on the servient land by the proposed use.

Physical character of past use compared to the proposed use. The City planned to remove all trees and foliage, install a retaining wall on one side of the creek, and place twenty-five tons of rocks along both sides.  The court concluded that this work would substantially change the physical character of the past use of the properties.

Purpose of the easement compared to the purpose of the proposed use.  The court found that while the proposed work did pertain to drainage in a general sense…the purpose of the project was to reshape Stafford Creek and the surrounding creek bed to cure past erosion and prevent future erosion.

Additional burden imposed on the servient land by the proposed use. The landowners presented estimates from a consultant of the loss of value of their properties ranging from $27,500 to $30,250.  This suggested a burden way beyond that contemplated by the original easement

The court determined that the original grantors of the easements did not “contemplate the expansive use of the easement now sought” by the City, and that the radical changes to the land demanded compensation to the landowners under Article I, Section 18 of the Iowa Constitution (the Takings Clause).

 

 

 

Failure to sue the proper party proves fatal to rezoning challenge

Rita Aust, et al. v. Platte County, PC Homes L.L.C., Kelly Jo Yulich Trust, Arlene Kagan and Wendy Winer
Missouri Court of Appeals, December 29, 2015

Real Estate developer PC Homes entered into a purchase agreement with three landowners to buy their property with the purpose of developing it into a single-family community in Platte County, MO. Platte County Planning and Zoning Commission twice denied the application to rezone the property from “agricultural” and “rural estates” to “single family high density” and “planned residential.” The Platte County Commission approved the rezoning to “planned residential.”

Aust and 41 other Platte County property owners (Appellants) filed a petition in the Circuit Court of Platte County for a writ of certiorari and declaratory judgment that the Commission’s decision was illegal, unreasonable and arbitrary. They wanted the rezoning to be denied or rescinded. Platte County was the only defendant on the petition. Platte County filed to dismiss the petition on multiple grounds.

The circuit court dismissed the petition, which was followed by an appeal.

The Appellants argued that the circuit court erred in dismissing their complaints because: (1) the provided proper notice to all parties; (2) their failure to file the record of the administrative proceedings within the statutorily-required time frame was not fatal to their claim; (3) declaratory relief was available to them; and (4) they sufficiently pled a claim for injunctive relief.

In addressing the first two points on appeal, the court referenced Section 64.660. Even though Platte County is a non-charter first class county, its planning and zoning program operates under statutes of second and third class counties. Section 64.660 provides in part, that any land owners disturbed by a county commission decision may present a petition in circuit court within 30 days after the decision. The statute also provides that after the petition is presented the court should allow a writ of certiorari. The court is allowed to reverse, affirm or modify the decision brought up for review (64.660.2).

The Appellants filed the petition against the County, not the County Board of Commission. This led to the Appellants being unable to file the record within 30 days of filing their petition. The Appellants sought to include the individual Commissioners within their official capacities, they did not ask to join the Commission as a body. Because the Appellants failed to seek a writ of certiorari against the proper party under Section 64.660 and did not turn in the record within 30 days the first two points were denied.

Regarding the third point, Section 64.660 provides for judicial review of the Commission’s zoning decisions through a petition for writ of certiorari. A declaratory judgment is not available to the Appellants because the option of the legal remedy precludes declaratory relief. Point three was denied.

Regarding point four, parties are not allowed to obtain equitable relief, such as an injunction, “unless the facts pleaded in the petition show they lack an adequate remedy at law”. The Appellants did not plead any facts showing that they lacked an adequate remedy at law. Point Four was denied and the circuit court’s judgment was affirmed.

Community group did not have standing to challenge rezoning denial

by Hannah Dankbar and Gary Taylor

Iowa Coalition Against The Shadow (ICATS) and Rockne Cole v City Council of Iowa City
Iowa Court of Appeals, January 27, 2106

Iowa City owned property zoned as “Neighborhood Public Zone” (P-1) that was no longer needed for city purposes.  The City Council requested developers to submit proposals, and accepted a proposal for a twenty-story building that would have both commercial and residential units. The proposed building would require the property to be rezoned as CB-10, which contains no height restrictions.  Cole and others filed an application to rezone the property to “Central Business Support Zone” (CB-5) to prevent a building that height from being constructed (CB-5 allows for mixed-use buildings that are less than 75 feet fall). None of the rezoning applicants owned property neighboring the parcel in question or sought to purchase the property to erect a building to comply with CB-5 zoning.  Their application urged the City Council to “protect our cherished commons, and allow future generations of children to enjoy the bright sunlight at Chauncey Swan Park without a 20 story tower looming over them.

The Planning and Zoning Commission held multiple meetings, and ultimately recommended denial of the rezoning application.  The City Council ultimately denied the request.  this left the property as P-1

Cole and ICATS filed a petition for a writ of certiorari claiming that the denial of the rezoning application was arbitrary and discriminatory because City Council had prejudged the issue and intended to grant CB-10 to accommodate the development. They argued that CB-10 zoning violated the comprehensive plan and Iowa Code section 414.3 (2013) and was illegal spot zoning. The district court determined that Cole and ICATS did not have standing because they did not suffer an injury and did not have a vested interest in the property. Cole and ICATS appealed the decision.

On appeal, Cole argued that because he applied for rezoning he had standing. ICATS claimed that they had standing to assert the rights of its members in challenging the rezoning denial.

To determine whether a person has sufficient interest to challenge a zoning decision Iowa is guided by a decision of the Florida Supreme Court: “(1) proximity of the person’s property to the property to be zoned or rezoned; (2) character of the neighborhood, including existence of common restrictive covenants and set-back requirements; (3) type of change proposed; and (4) whether the person is on entitled to receive notice under the zoning ordinance.” (Renard v. Dade County, 261 So. 2d 832, 837 (Fla. 1972)).

The court applied those factors to this case and determined that neither Cole nor ICATS had standing. There is nothing in the character of the neighborhood or the proposed zoning change that indicates Cole or ICATS had a particular interest in the change. They were interested in the change primarily so community members could enjoy the sun, but people with only a general interest shared by the public are not permitted to initiate action to promote judicial enforcement or interpretation of zoning regulations.

In addition to affirming that neither Cole nor ICATS had standing, the court also agrees that leaving that property zoned P-1 furthered the interest of ensuring residents can enjoy the sun. The specific injury that was the concern of Cole and ICATS (blocking the sun) did not occur by the denial of the rezoning application. Also, if the rezoning application was approved, there was nothing to prevent the developer from submitting an application to rezone the property to CB-10, so this zoning application did not necessarily prevent the injury Coke and ICATS sought to avoid.

The decision of the district court was upheld.

Subjective desire to maintain building insufficient to overcome determination of ‘abandoned building’

by Hannah Dankbar

City of Harlan v Walter Rogers
Iowa Court of Appeals, January 27, 2016

Rogers obtained a house built in 1885 after the death of his father-in-law in 2004.  Rogers made minor maintenance to the property at that time, such as fixing a leaky roof and cleaning up the yard, but Rogers lived in California and had problems maintaining the property. Between 2007 and 2014 Rogers received and paid a dozen special assessments. Nobody lived in the house during this time.  Also during this time, the house was broken into multiple times and multiple antiques were stolen.

In 2011 Harlan police received a nuisance complaint about the house. As a result of that call a Shelby County Environmental Health Specialist inspected the property who reported that is was, “very apparent that the owners have let this property go for many years without any maintenance or upkeep.”

In 2012 the City filed its petition under section 657A.10A and sent Rogers an order stating that the house and garage were a nuisance and were in violation of local housing codes. Because Rogers made “substantial compliance with the pre-condemnation demands” made by the City, both parties filed for a continuance multiple times. In September 2014, however, Rogers’s attorney moved to withdraw from the case stating that Rodgers had not followed the advice of the attorney. After that, Rodgers represented himself in trial in January 2015. The Shelby County Environmental Health Specialist did a final assessment of the house and found that the house still did not comply with the City housing code.  The trial court concluded that the property posed a danger to neighboring properties and residents because of its’ condition.  The court declared the property abandoned and awarded the title of the house to the City. Rogers appealed this decision.

Rogers argued that the district court should not have determined that the property was abandoned. Iowa Code section 6577A.1(1) defines an “abandoned” building as one that “has remained vacant and has been in violation of the housing code of the city in which the property is located…for a period of six consecutive months.” The code offers a list of factors a court “shall consider” to determine whether a property has been abandoned. Rogers argued his desire to “maintain his ownership in the property in Harlan” is sufficient to overcome the conclusion that the property was abandoned, but the court did not agree. Even though Rogers was up to date on his property taxes and special assessments, the house did not have utilities for more than twelve years and was vacant during this entire time. According to inspectors the house did not meet code for human habitation; it was not a house that would be habitable simply by turning on the utilities. Rogers claimed he was working on getting the the house fixed and intended to move into it upon his retirement, but the court stated that Rogers subjective desire to maintain the property was not the controlling factor.  Because the property has been vacant for more than six months, the court determined that it met the statutory test for a abandoned property and ruled in favor of the City.

Planning Board denial not a “final action” under Federal Telecommunications Act when review by Board of Appeals required by ordinance

by Hannah Dankbar and Gary Taylor

Global Tower Assets, LLC; Northeast Wireless Networks, LLC v. Town of Rome
Federal 1st Circuit Court of Appeals, January 8, 2016

Global Tower Assets and Northeast Wireless Networks obtained a leasehold interest in Rome, Maine. According to Rome’s Ordinance applicants must get permission from Rome Planning Board to build a wireless communication tower.

The Ordinance includes a section that reads, “[a]dministrative appeals and variance applications submitted under this Ordinance shall be subject to the standards and procedures established by the Town of Rome Board of Appeals.”

The companies first asked for permission from the Planning Board to build the tower on April 8, 2013. The Board discussed the proposal on May 20, 2013 and held other meetings over the next few months. On February 10, 2014, the Planning Board voted to deny the application because the application was not complete. On March 10, 2014 the Planning Board published their decision. The decision was sent to the Board of Appeals for Review. The next day, the companies filed suit in the United States District Court for the District of Maine.

Part of their suit included complaints under the Telecommunications Act (TCA) of 1996. The TCA provides relief to those who are denied permission to build telecommunication facilities at the state or local level trough “final action”. However, the TCA does not define “final action”.  In this case, the question is whether the administrative process ended. The companies filed their TCA challenge to the Town of Rome Planning Board’s decision before the decision was reviewed by the local board of appeals. In Maine there is a general requirement that land use and zoning appeals are first heard by a zoning board of appeals before they can be litigated in state court.  Thus under Maine law “Rome necessarily made review by the board of appeals a prerequisite to judicial review.” There was an opportunity for the Planning Board’s decision to be overturned through an administrative (rather than judicial) process, meaning that the decision of the Planning Board was not a “final action” within the meaning of the TCA. The legislative history of the TCA does not reject a two-step administrative process at the local level to determine “final actions.”  Because the administrative process, as defined by Rome’s Ordinance was not complete the District Court was correct to dismiss the complaints.

Land application of biosolids was “normal agricultural operation,” triggering right-to-farm protections

by Hannah Dankbar and Gary Taylor

Gilbert v. Synagro Central
Pennsylvania Supreme Court, December 21, 2015

Appellees are thirty-four individuals who own or reside on properties next to a 220-acre farm in York County, Pennsylvania. The farm contracts with two companies who recycle biosolids to be used as fertilizer.

Between March 2006 and April 2009 approximately 11,635 wet tons of biosolids were applied to the farm. Appellees claimed that when the biosolids were applied there were strong, unpleasant odors that impacted their daily lives and made some residents ill.

Appellees complained to local officials, the biosolid companies and state officials with no response. In 2008 they filed two three-count complaints, which were consolidated. One of the complaints was that the appellants’ biosolids activities created a private nuisance.

Appellants argued that § 954(a) of the Right to Farm Act (RTFA) barred the nuisance claim. The relevant part reads:

No nuisance action shall be brought against an agricultural operation which has lawfully been in operation for one year or more prior to the date of bringing such action, where the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation and are normal agricultural operations.

The trial court determined that land application of biosolids is a “normal agricultural operation” under the RTFA. They found that land application of biosolids was not a substantial change in the farm business, and that farms have used different types of fertilizer for centuries. Also, appellees failed to identify what duty appellants owed them, which is an essential part to their claim.

On appeal the Superior Court reversed and remanded the nuisance claim. The court identified three requirements of the RTFA that must be met for a nuisance action to be barred: (1) the agricultural operation has an established date of operation at least one year prior to the filing of the action; (2) the conditions or circumstances constituting the basis of the action have been substantially unchanged since the established date of operation; and (3) the conditions are a “normal agricultural operation.” The court found that the first two requirements were met, but the third was not because there was no factual finding that application of biosolids was a “normal agricultural operation.” Regarding the second requirement, the court determined that a substantial change can reset the clock on the one-year allotment to file a claim. However, application began in 2006 and the complaint was not filed until 2008.

On appeal, the Supreme Court agreed with the Superior Court’s decision on the first two requirements. It then further addressed the question of whether the trial court correctly concluded that land application of biosolids as fertilizer is a “normal agricultural operation.” In addressing this question the court made extensive inquiry into the history of the land application of biosolids as fertilizer, related statutes and regulations, case law and executive agencies’ views.  At the conclusion of this inquiry the Court found support to determine that the application of biosolids falls under “normal agricultural operations.” Because the RTFA is meant to protect farmers from nuisance claims, the definition of normal agricultural operations must reflect accepted changes in agricultural practices, including the increased use of biosolids.  The result was that  the farm was protected from the nuisance claim.

 

Town properly used its police powers to build roads and levy special assessments after developer failed obligations

First State Bank v Town of Omro
Wisconsin Court of Appeals, November 11, 2015

Barony subdivision is a 74 lot subdivision that received plat approval in 2004. Only 9 lots were developed over the course of the next 5 years, and in 2009 First State Bank took control of the remaining 65 lots in lieu of foreclosure. At the time of foreclosure, sections of the roads in the subdivision were not paved. In 2013 Omro authorized the roads to be finished and specially assessed all the lots within the subdivision for the cost of completing the roads, which was $219,641.60. The Bank challenged Omro’s authority to levy the special assessments.  The issue on appeal was whether a municipality may use its police powers to build roads and levy special assessments against the land after a developer fails their obligation to build the roads.

The Bank claimed that the assessment was improper because: (1)the development agreement required the developer to pay for the roads; (2) the Ordinance prohibited the road work because 70% of the subdivision was not developed; (3) at the time the special assessments were imposed the subdivision’s roads were privately owned; (4) three lots were not specially benefited because they do not abut Omro’s roads; and (5) the wording of the preliminary and final resolutions did not conform with § 66.0703. The circuit court provided summary judgment to Omro.

The first two arguments asked whether Omro acted outside of their authority granted by the legislature. The Bank argued that the Ordinance says that the money for paving roads “will come directly from the developer, from a special assessment on the development, or another method approved by the Town Board” and that “the development agreement will dictate the method of payment for the paving.” The Bank argues that the developer is the only recourse for payment based on this language in the Ordinance and in the developer agreement. However, the language in these documents does not limit Omro’s power to levy special assessments. Just because the agreed upon payment did not work out does not mean alternatives are not allowed as long as Omro follows the appropriate procedures in state law permitting special assessments.

The Bank argued that because 70% of the subdivision was not developed the special assessment could not be levied.  The court pointed out, however, that there is language in the Ordinance that allows for a different schedule if Town Engineer and the Town Board recommend a different action, which they did.

The last three arguments asked whether Omro failed to follow the requirements of Wis. Stat. §66.0703.  The Bank argued that because the lots were privately owned, the special assessment was not for public improvement.  This argument missed the point that the roads within the subdivision were public property.  State law provides that all roads or streets shown on a final plat are dedicated to the public unless clearly marked as private, which these were not.  Therefore, the assessments were clearly for a public improvement.

Next, the Bank argued that three of the lots do not receive “special benefits” from the project because they do not abut the newly paved roads and should not be specially assessed because of this. The Bank demonstrated a genuine issue of fact. The circuit court erred in granting summary judgment on this issue.

The court affirmed the decision ratifying the special assessment of the lots that benefit from the road project, but reverse the decision that found that the lots that do not abut the roads received special benefits and remanded that issue to the lower court.

No need to make specific finding that building qualified as accessory building when granting special exception

by Hannah Dankbar

Hasanoglu v Town of Mukwonago and Town of Mukwonago Plan Commission
Wisconsin Court of Appeals, October 14, 2015

The Hasanoglus appealed a circuit court decision upholding a decision of the Town of Mukwonago Plan Commission to grant a special exemption to the Hollerns to build an accessory building on their property. The Hasanoglus argue that the Plan Commission does not have jurisdiction to grant this exception and that the exception was arbitrary and unreasonable.

The Hollerns applied for a zoning permit to build a riding arena on their property in rural Mukwonago. Mukwonago determined that the arena would be in “substantial compliance” with the town ordinances, except for the height and square footage of the building. The Plan Commission met and approved the proposal by granting a exception to the zoning ordinance. Their neighbors, the Hasanoglus, filed a certiorari action which sustained the decision.

On appeal, the Hasanoglus argued that according to the Town of Mukwonago Municipal Code §82-25(a)(2)(b)(2) the Town Board could grant this exception, but the Plan Commission does not have jurisdiction to do so in this case. While it is true that this section of the code gives this power to the Town Board, a different part of the code gives the same power to the Plan Commission (Town of Mukwonago Municipal Code §82-25(b)(3)). The court determined that §82-25(b)(3) is the appropriate subsection because there was no finding of a rural accessory building on the Hollerns’ property as is required by §82-25(a)(2)(b)(2).

Next, the Hasanoglus argued that: (1) the Hollerns did not follow the correct procedure to apply for the special exception; (2) that the Plan Commission agenda was not specific enough to give notice of the Hollerns’ request; and (3) the Plan Commission did not conduct a sufficient inquiry into whether the proposed riding arena qualified as an accessory building.

First, the question of whether the Hollerns followed the correct procedure was not raised in circuit court and the section of the municipal code that the Hasanoglus cite is only for property owners seeking exceptions for setbacks. This argument was not considered on appeal.

Second, the Plan Commission’s agenda states, “ACCESSORY BUILDING HEIGHT AND SIZE INCREASE FOR S64W27645 RIVER ROAD, MICHAEL AND LAURA HOLLERN PROPERTY OWNER.” The minutes show approval of the request. The Plan Commission is not obligated to be any more specific than that.

Lastly, The Plan Commission is not required to record a specific discussion and determination in its minutes that a building qualifies as an accessory structure.  The Plan Commission placed multiple conditions on the approval of the exception (an example being that there can be no commercial use) which demonstrated that it considered the issue and exercised its judgment.

These arguments failed, so the decision was upheld.

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