by Gary Taylor
Twice this month the Iowa Court of Appeals has taken up the issue of the role of the comprehensive plan in zoning decision-making. While the month started with promise, I am afraid the cause for planning will end the month worse for the effort. At the risk of overstating the importance of either case, I wanted to dig deeper into both cases than the summaries I previously provided in this blog.
In the first, Norton Trust v. City of Hudson, the court was asked to invalidate a decision by the Hudson city council to rezone a parcel from agricultural to residential. The challenge was raised by nearby landowners. The landowners protested that the city council did not adequately consider all the elements listed in Iowa Code 414.3 (protection of agricultural land, protection from wind and water erosion, lesson congestion in the streets, “secure safety from fire, flood, panic and other dangers,” etc.). Recognizing that “it is clear that not all the elements listed apply to every zoning decision, or the decision before us,” the court asserted that “a primary consideration of the statute is that zoning must be in accordance with a comprehensive plan.” The court validated the city council’s decision, largely based on the fact that the plan designated the land for future residential use. The plan took into account the changing character of the area in question and the need for an orderly transition from agricultural to residential along a stretch of Highway 58 subject to considerable development pressure already. As a result, the rezoning was consistent with many of the land use goals stated in the plan.
Edward Sullivan, a Portland attorney who has written extensively on the role of the plan in land use regulation, would no doubt describe Iowa courts as following the “planning factor” rule; that is, consistency of a zoning decision with the comprehensive plan is one factor Iowa courts consider when evaluating the legality of the decision. The difference among “planning factor” states is in the weight each court gives to the plan relative to other factors. Having the Court of Appeals characterize consistency with the plan as “a primary consideration” was an affirmation of the important role of planning in local decision-making.
Just two weeks later, the Court of Appeals effectively took it back. In Francis v. Bremer County, the court was asked to invalidate a decision by the Bremer County board of supervisors to deny a rezoning from agricultural to residential. Like the property in the Norton Trust case, this land was along a paved roadway in a developing residential area. The CSR of the property did not meet the threshold set out in the county’s three-year-old comprehensive plan for designation as prime agricultural land. For these reasons, the county’s comprehensive plan identified the area for future residential growth. Despite all these factors, the county planning commission recommended denial of the rezoning to residential, and the board of supervisors followed the commission’s recommendation. The supervisors rationalized their denial by reciting “several factors…be they CSR, environmental, quality of life issues, safety concerns, roads,” and “keeping ag land ag.” The planning and zoning commission’s justification for its recommendation perhaps provides a more truthful picture of the dynamics of the situation, citing
“citizen concerns about current water supplies, runoff, number of drives along 190th street, increased traffic, a possible sink hole in the area, productivity of the land, quality of life, septic system drainage, and not wanting more neighbors.” [italics added]
One supervisor observed “I think all of the factors…have to be weighed…before a decision can be made.” In my opinion, the problem with the board’s decision is that all these factors were indeed given careful consideration during the planning process. In developing the plan a threshold CSR of 50 was set for designating land as prime agricultural land, and this property (albeit close at 49.5) did not meet that threshold. Impacts of development on local roadways, water supplies and water quality were no doubt also considered. Upon weighing these factors three years earlier, the county adopted a comprehensive plan that envisioned residential development in the area in question. The questions raised by the planning and zoning commission and the board of supervisors already had been asked and answered.
A plan can be used to buffer elected officials from stiff opposition in situations like this, but sometimes elected officials will give in to the neighbors who “do not want more neighbors.” It then falls to the court to see that the local government sticks to its own policies. The court is to give due deference (the benefit of the doubt) to local zoning decisions. Making the plan a “primary consideration” in judging the validity of a zoning decision actually makes the court’s job easier. If the elected body can show how its decision is consistent with its plan, the court can assume that careful consideration was given to the situation at an earlier time, and re-evaluation of the circumstances is not necessary. A decision inconsistent with the plan, on the other hand, should be cause for second-guessing.
Unfortunately the Court of Appeals failed in this case to seek shelter under its earlier ruling, giving deference where deference was not due. It apparently felt the need to find a way to support the county board’s decision, and in so doing it reduced the comprehensive plan from “a primary consideration” to something much less. It cited with approval the district court’s statement that
“Just because a land owner demonstrates that a proposed use is consistent with a comprehensive plan does not mean, ipso facto, that the land owner is entitled to the zoning change….It remains for the board of supervisors to determine when, if at all, growth consistent with the comprehensive plan should occur.” [italics added]
I have trouble with this statement for a number of reasons. I imagine it could become a favorite of attorneys representing anyone taking a position on a zoning decision that is inconsistent with the comprehensive plan. I first take issue with “when,” for in the context it was used it implied that the timing for this development was somehow not right. In the abstract, the timing of growth is a legitimate concern; however, none of the concerns raised by the neighbors and cited by the supervisors in this case had anything to do with the timing of the development. The plan itself did not suggest that time or other precedent events stood in the way of present development in that area. The soils were not going to become more productive over time, nor were water supplies going to increase (in fact it was conceded that the wells of the new development would be drawing from a different aquifer than those of existing houses). Again, all these factors were no doubt taken into account during the planning process, with the result being a decision to designate the area presently appropriate for residential development.
Second, a decision that growth consistent with the comprehensive plan should never occur (in the court’s words, “if at all”) is, ipso facto, inconsistent with the plan. Timing is one thing – growth consistent with the plan may not come for years – but a decision not to allow growth contemplated by the plan disregards the vision of the community set out in the plan is another. The elected body should be able to point to some compelling reasons for ignoring the plan even if the plan itself isn’t a “primary consideration.” Again, the justifications for denial cited by the commission and the board were carefully considered in the development of the plan, and opposite conclusions were reached. It does not appear from the record that circumstances had changed sufficiently in the three years from plan adoption to this decision to justify disregarding the previous work.
Again, I do not want to overstate the importance of the Francis case. It is easy enough to chalk it up as a bad decision based largely on its facts, but the effort the court put into defending the action of the board of supervisors is troublesome, and the language it used to do so undercuts the relevance of the plan. On October 7, the plan was a primary consideration in assessing the validity of a zoning decision. Unfortunately, the court’s decision on October 21 supported the notion that a primary, and justifiable, consideration in making a zoning decision is the amount of heat the decision-makers are feeling in the public hearing.