Plain language of right-of-way deeds grant easements

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.

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

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.

Co op days shy of being able to claim adverse possession

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

 

Fear about dangers in the vicinity of property insufficient to constitute nuisance

by Andrea Vaage

Smith & Wunderlich v Conoco Phillips Pipe Line Company
Federal 8th Circuit Court of Appeals, September 15, 2015

Conoco Phillips owns a pipeline constructed in 1930 that runs through part of West Alton, a small town in Missouri. A leak was discovered near the town in 1963. The source of leak was repaired, but no remediation efforts were made to clean up the spill. Contaminants from the spill were discovered at a residence near the spill in 2002. Phillips purchased that residence and two others. Under supervision of the Missouri DNR, the buildings were demolished; 4,000 cubic yards of soil was removed; and monitoring wells were set up to test for chemicals of concern (COCs) such as benzene, toluene, ethyle benzene, xylenes, and lead.

Plaintiffs, the Smiths and Wunderlichs, property owners within 1.1 mile radius of contamination site, filed a class action suit in district court October 2011. Their complaint identified two separate classes, each including property owners within a 1.1 mile radius of the contamination site. The first class sought injunctive relief and monetary damages for creation of a nuisance and negligence for remediation. The second class sought compensation for ongoing expenses of medical monitoring due to potential exposure to pollutants from the pipeline leak. The district court certified the first class, but not the second. In certifying the first class the court relied on evidence and expert testimony that contaminants were found in the monitoring wells, that pollutants could continually shift, and that MTBE, a gasoline additive, had been found at one residence one quarter mile away from the contamination site. Phillips appealed the court’s decision to certify the first class.

In cases of certification, the district court is granted broad discretion. A higher court will only reverse a certification where there has been an abuse of discretion or an error of law. Four standards must be met to certify a class: numerosity, commonality, typicality, and adequacy of representation.

In order for commonality to be met, the plaintiff’s must show that all class members suffered the same injury. The plaintiff’s demonstrated contamination by citing the MBTE found on the Wunderlichs’ property. However, there was no MBTE found at the contamination site. None of the chemicals found at the contamination site were detected at any of the class members’ property; however, plaintiffs’ claim that physical invasion is not required for the contamination site to be a nuisance, because the fear of contamination depressed their property values. The Court cited recent cases that establish that fear alone is not enough to meet the requirement that a nuisance be visible or capable of physical detection. “Negative publicity resulting in unfounded fear about dangers in the vicinity of the property does not constitute a significant interference with the use and enjoyment of land:  The potential for contamination does not amount to sufficient proof of a nuisance. Since plaintiff’s were unable to establish contamination on the class land, the nuisance claim fails.

The Court determined the fear of contamination without sufficient supporting proof was not enough to establish a claim for common law nuisance. The Court found the district court ruling certifying the class was an abuse of discretion. The case was reversed and remanded.

Neighbor testimony sufficient evidence to support CUP denial

by Andrea Vaage

August v Chisago County Board of Commissioners
Minnesota Court of Appeals, August 17, 2015

Jeffrey August purchased a 20-acre tract of land in Sunrise Township, in Chisago County, Minnesota. August built a fenced-in arena and later an announcement system for mounted shooting events he hosted on the property. In 2013, August formed a club, Cowboy Mounted Shooting, which held competitions and clinics. Mounted shooting involves contestants on horseback who shoot .45 caliber blanks at balloons on posts in the middle of the arena. These competitions were held throughout the summer, typically starting in the afternoon and continuing until dusk. In 2014, the Chisago County zoning department inspected the property after hearing complaints. The department found the use of the property did not conform to its zoned agricultural use. The zoning department then recommended August apply for a conditional use permit (CUP). August complied and filed a request to allow a rural retail tourism/commercial outdoor recreation use.

Two entities provided recommendations on the CUP: Sunrise Township and Chisago County Planning Commission. Sunrise Township recommended denial of the CUP based on the excessive and disruptive noise. The County Planning Commission also recommended denial of the CUP based on comments at a public hearing that noise levels were high and consistent and a planning report which stated that, although the noise was below the allowed decibel limit, it was still clearly audible from neighboring properties.

The public hearing for the CUP was held on July 16, 2014. The County Board of Commissioners denied the permit based on that hearing and the recommendations provided by the Planning Commission. August appealed. At issue is whether the denial of the CUP was unreasonable, arbitrary, or capricious. The test to determine if a zoning board decision was sound is two-pronged: the reasons given for denial are legally sufficient and the reasons had a factual basis in the record.

The legal basis for denying the CUP was Section 4.15(D)(5) of the Chisago County Zoning Ordinance (CCO) regulating rural retail tourism. Pursuant to this section, a proposed rural retail tourism use will only be allowed if it “will not negatively impact the neighborhood by intrusion of noise, glare, odor, or other adverse effects.”

The Board established several facts in regards to the noise issue. The Board relied in part on neighbors’ testimony that there was a significant increase in noise and traffic on weekends when the mounted shooting events were held. The arena for these events was located within 500 feet of adjacent homes, and noise was heard by neighboring residents. Additionally, the planning commission members’ trip to the property confirmed the high levels of noise resulting from the gunfire.

August argued the Board cannot rely on neighbor’s testimony, however, the court relied on previous rulings that found that “a municipal entity may consider neighborhood opposition when it is based on something more concrete than non-specific neighborhood opposition.

August also argued that the CUP could only be denied if the noise levels exceeded decibel levels set by the Minnesota Pollution Control Agency (MCPA). The Court found that the county zoning ordinances were not in conflict with the MCPA standards because it regulates noise based on neighborhood intrusion, not decibel levels.

The County Board of Commissioners decided to deny the CUP based on sufficient legal and factual basis and was not unreasonable, arbitrary, or capricious. The Board’s decision is affirmed.

Provision in subdivision ordinance requiring neighbor approval held to be valid

by Andrea Vaage

Counceller v City of Columbus Plan Commission
Indiana Court of Appeals, August 19, 2015

John Counceller owned a 3.26 acre lot in Indian Hills Estates in Columbus, Indiana. He had previously submitted three applications between 1999 and 2013 to subdivide his lot into two lots, which he either withdrew or let expire upon approval. In 2014, Counceller submitted a fourth application to subdivide his lot into a total of three lots. After the Plat Committee granted primary approval to the request, Counceller’s neighbors submitted an appeal.

Section 16.24.225 of Columbus’s subdivision control ordinance requires approval of 75% of neighboring property owners for the further subdivision of a lot. Almost all of Counceller’s neighbors objected to the application. Due to this objection, the Commission decided to deny the application. Counceller claimed the City should be estopped from applying the 75% approval rule. The trial court denied this petition.

One of the elements that must be met in an estopppel case is that the petitioner had a lack of knowledge and of the means of knowledge as to the facts in question. Counceller argued that he was not informed of the 75% requirement by the City in any of his previous applications; however, Indiana caselaw is clear that “property owners are charged with knowledge of ordinances that affect their property.”  As a general rule, equitable estoppel will not be applied against governmental authorities in those cases where the party claiming to have been ignorant of the facts had access to the correct information.  The City did not withhold the means for Counceller to become aware of the ordinance.

Counceller admitted that no City officials implied that this regulation would not be applied to his application. Counceller instead argued that because this regulation was not enforced in the other three applications it should not be enforced in the fourth. However, none of his other applications made it to the point where this requirement might arise. Furthermore, the fourth application is different from the previous three in that the application proposes the property be subdivided into three lots instead of two.

Counceller also asserted the City, by adopting the 75% rule, improperly abdicated its responsibility to exercise exclusive control of the subdivision of land to Counceller’s neighbors. While it is true that similar provisions have been held to be a violation of due process, the Court of Appeals found that the 75% rule in the Columbus ordinance did not give unrestricted power to the neighbors. Section 16.24.225 allows for a waiver to be obtained if the Commission “finds that the proposed change will not have a significant impact on the existing subdivision.” Counceller never requested this waiver in his application, nor did he ever choose to request the waiver when given additional opportunities.

The Court found Counceller had the means to learn of the 75% requirement, and the opportunity to request a waiver. The judgment of the trial court is affirmed.

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