Only the Board of Adjustment can approve Special/Conditional Use Permits

by Eric Christianson

Holland v. Decorah

Iowa Supreme Court, April 2, 2003

This is an older case, a classic of Iowa planning and zoning case law. However, the issue of the role of the zoning board of adjustment is one that still comes up quite frequently.

In the late 1990s Wal-Mart began planning a new location in Decorah, Iowa. The location selected was located in the floodplain of the Upper Iowa River. To build there, Wal-Mart had to place fill in the floodplain. First, Wal-Mart obtained the required permits from the Iowa Department of Natural Resources. Then, Wal-Mart applied to the Decorah City Council for a permit to place fill on the floodplain. The city’s zoning code contained among its permitted uses in the F-1 floodplain district:

Dumping of approved materials for landfill purposes, subject to prior approval of the city council and appropriate state agencies. [emphasis added]

Following this section of city code, Walmart’s representatives appeared before the city council on August 15, 2000 and requested approval to fill the property. After a heated and confrontational public comment period, the city council approved the request by a vote of four to three. The council’s vote was only to approve the fill. It did not change the zoning of the area or approve of a site plan.

Previously, Upper Iowa Marine, which owns adjacent land, had attempted to dump fill in the floodplain. They also applied for and obtained the proper permits from the Iowa Department of Natural Resources. Instead of presenting their request to the city council. They applied for a special exception to the zoning ordinance from the zoning board of adjustment. The board of adjustment found the application inconsistent with the comprehensive plan and denied the request.

A group of citizens in Decorah filed suit, arguing that Wal-Mart’s request should have been submitted to the board of adjustment as Upper Iowa Marine had done rather than the city council.

The case hinges on two main issues (1) the authority of the board of adjustment and the city council and (2) definition of a special use.

Iowa Code 414.7 states that a city council should appoint a board of adjustment so that it, “may in appropriate cases and subject to appropriate conditions and safeguards make special exceptions to the terms of the ordinances…”

Further on in 414.12 Iowa Code defines the powers of the board of adjustment including, “to hear and decide special exceptions to the terms of the ordinance…”

Courts in Iowa have been very clear that no other entity has this power. In The City of Des Moines v. Lohner in 1969 the court said that the power to make special exceptions are “placed exclusively in the board [of adjustment] and effectively restricted by statute.” Likewise in Depue v. City of Clinton in 1968 the court asked itself, “[I]s the jurisdiction of the board of adjustment, conferred by sections 414.7 and 414.12 and exclusive jurisdiction? We think the answer[ is] affirmative.”

It is clear then in Iowa case law that approving special uses is the exclusive jurisdiction of the board of adjustment. At issue is whether conditioning a permitted use on “prior approval of the city council” was essentially the same as a permitted use. Wal-Mart argued that the council’s grant of permission was not a special exemption because it was listed as a permitted use and the council had only a “limited, technical review.” Walmart argued that the city council was not examining whether the proposed change was consistent with the city’s comprehensive plan. Instead they were simply ensuring that the appropriate permit had been obtained from the Department of Natural Resources and that the fill material was free from waste materials.

In its reasoning, the court took special note of the contested nature of the public discussion period before the vote at the council meeting. During this meeting evidence and opinions were presented on both sides and one council member even attempted unsuccessfully to convene a task force to study the issue further.

The issuance of special-use permits is quasi-judicial or administrative. […]  The problems with allowing a political, legislative body such as a city council to rule on applications of this nature (in addition to lacking statutory authority) are apparent in this case.  The city council had no hearing procedures, notice requirements, or the type of guidelines that would govern the board of adjustment.

Even on the cold minutes of the meeting, it is apparent the council would have known by the time the discussion was concluded, if they did not already know, they had a tiger by the tail.  The residents were deeply divided on the issue, raising concerns about the environmental impact, the fairness of the proceedings (especially in view of the fact the board of adjustment had denied a similar permit), and the prospect of 120,000 cubic yards of fill being placed in the floodplain in the event the DNR appeal was successful or the construction plans were thwarted for some other reason.

In the end, the court concluded that whether or not dumping fill in the floodplain was a special or conditional use in Decorah’s code, the city council’s actions violated state code.

If it was a special use, is clear that the city council had no authority to allow it. Even if it is not, however, it would violate chapter 414 of Iowa Code which requires that zoning be done “in accordance with the comprehensive plan.” In fact, Decorah’s comprehensive plan expressly addresses protecting its floodplains as natural resources “for use as permanent open space.” In making a decision in direct opposition to the comprehensive plan, the application of the ordinance would still be illegal.

 

Historical Note:

Walmart had already completed construction on the $20 million building that their superstore would occupy at the time of this decision. The building had been sitting vacant since the previous fall awaiting the outcome of this lawsuit. Eventually, the parties settled. Wal-Mart agreed to make a donation to the Decorah library and to fund a study of the floodplain. Wal-Mart also agreed to lease their old building the the city for $1 a year with all proceeds from subleases going to fund the construction of a river trail. The Wal-Mart, much like confusion over roles in planning and zoning, is still with us today.

Flooding in Iowa project receives national and regional awards

The Flooding in Iowa project (accessible here and via the “Flooding in Iowa” tab at the top) received the national Educational Materials Award for 2015 from the National Association of Community Development Extension Professionals (NACDEP), and the regional Educational Materials Award from the NACDEP North Central Region.  These awards are given annually to recognize “outstanding materials that educate through credible, accurate and concise information.”  Both awards will be presented during the NACDEP Annual Conference, May 17-20 in Little Rock, Arkansas.

The Flooding in Iowa project is a series of 21 short, web-based videos and related materials designed to educate the public about floodplains, flood risks and basic floodplain management principles.

GAO report: National Flood Insurance Program far from healthy

A report recently released by the General Accounting Office (GAO) makes clear that the National Flood Insurance Program (NFIP) will remain a policy and political nightmare for Congress for years to come.

As of Dec. 31, 2013, the NFIP owed the government $24 billion, and had not made a principal payment since 2010. The report says that the 2012 law which reauthorized the program for five years requires FEMA to issue a report to Congress by January 2013 on a repayment plan setting forth options to repay FEMA’s total debt to Treasury within 10 years. However, as of January 2014, FEMA had not issued such a report. The GAO report says that most of the options for retiring the debt would require congressional action. As required by the act, FEMA is establishing a reserve fund that could help reduce the need for future borrowing from Treasury, the GAO report said. “However, FEMA is unlikely to initially meet the act’s annual targets for building up the reserve, due partly to statutory limitations on annual premium increases.” Although Biggert-Waters, passed in 2012 phased out insurance rate subsidies on many properties, the Homeowners Flood Insurance Affordability Act passed a few months ago reinstates some of the subsidies ordered phased out by Biggert-Waters. As a result, “phasing out and eventually eliminating subsidies remaining after the 2014 Act poses challenges for FEMA.”

Besides the concern that the NFIP is unlikely to attain the congressional mandate of paying off its current long-term outlook within the required 10 years, the report raises another critical issue that has escaped public attention: the fact that there is no means of ensuring that people who by law should have flood insurance—that is, homeowners with mortgages in vulnerable areas—purchase the product. It suggests that if everyone who should have flood insurance purchases the product, it would reduce the revenue shortages that are a key component of its main problem, affordability.  Under the NFIP, there is no significant penalty for not requiring mortgage-holders in flood zones to secure and maintain flood insurance coverage, and information on the extent of compliance with purchase requirement “is limited.”

The report takes issue with complaints that the FEMA’s flood mapping activities overstates the risk of flooding. The report in fact argues that, “FEMA’s methodology for determining full-risk premium rates may not fully reflect the actual risk of flood damage as intended by Congress.”

 

A link to the full GAO report is here.

“Substantially similar” new construction in floodplain is not the same as elevating existing structure authorized by permit

by Victoria Heldt

Delbert E. Johnson and Nancy L. Johnson v. Pierce County Zoning Board of Adjustment
(Wisconsin Court of Appeals, March 6, 2012)

The Johnsons own a piece of property that abuts the Mississippi River in Pierce County, Wisconsin.  It is undisputed that the area is a floodplain and, therefore, the Johnsons’ mobile home, screened-in porch, and deck are nonconforming uses under Pierce County’s zoning ordinances.  In April 2010 James Kleinhans (the county zoning administrator) issued the Johnsons a land use permit to floodproof the existing structures on the property.  The permit consisted of the application, a materials list, and a hand-drawn plan of the project.  The plan ordered for the elevation of all three structures onto a new concrete foundation.

In June 2010, Kleinhans observed that the Johnsons’ construction did not conform to the plan.  The screen porch was still sitting on the ground and a new structure had essentially been built where the mobile home previously sat.  It did not resemble the preexisting mobile home or deck so Kleinhans rescinded the permit and issued a stop work order.  The Johnsons appealed the decision to the Pierce County Zoning Board of Adjustment (Board) arguing that the construction did not violate the permit.  They testified that the preexisting mobile home had been destroyed by a flood before the permit was issued, so they could not elevate it in its ruined state.  They also claimed that Kleinhans was aware that the Johnsons did not plan to elevate the entire structure when he issued the permit.  They stated they tried to incorporate as much of the old structure as possible (windows, siding, paneling) in reconstruction.  Kleinhans responded by saying that if he had known the Johnsons were not elevating the existing structure in its previous state he would not have issued the permit.  The Board concluded that the Johnsons used the permit to construct a “substantially different building” and upheld the revocation of the permit.  The circuit court affirmed the Board’s decision.  The Johnsons appealed.

The Johnsons argued several points.  First, the Johnsons contended that the Board proceeded on an incorrect theory of law.  They argued that the county’s zoning ordinance does not comply with Wis. Stat. §§ 59.69 and 59.692.  The Johnsons argued that specifically ch. 238 of the Pierce County zoning code conflicts with the previously mentioned Wis. Stat.  The Court pointed out, however, that the Johnsons relied on language within that section of the zoning code to support their argument later in the appeal.  The Johnsons may not argue that a part of the zoning code conflicts with statute while simultaneously relying on the code for their argument.  The Court noted further that the Johnsons did not make this claim before the Board and therefore forfeited the right to raise the argument on appeal.

The Johnsons argued that the structure they built was “substantially similar” to the original structure and, therefore, was not a violation of the permit.  The Court ruled that, since the Johnsons provided no legal authority for the notion that a “substantially similar” structure is allowable under a permit, it would not consider the argument.  The Court concluded that the Board did not act on an incorrect theory of law.

The Johnsons claimed that the evidence presented did not support the Board’s conclusion.  To begin its analysis, the Court acknowledged that deference is given to an agency’s decision on appeal and that “the Board is the sole judge of the weight and credibility of the evidence presented.”  The Court found that the evidence presented did indeed support the Board’s decision.  The permit issued allowed the Johnsons to elevate the existing structures and observation showed that the Johnsons instead constructed a new structure.  Johnson confirmed that he did not elevate the previously existing structure because it was ruined.  He also failed to dispute that the new structure did not include the previous porch and deck or that the Johnsons were attempting to sell the porch.  Photographs were submitted in support of all these facts.

The Johnsons further argued that the Board improperly disregarded Johnson’s testimony in which he claimed that Kleinhans already knew of his plan to modify the structure.  The Court noted that the Board is the proper judge of witnesses’ credibility and that it apparently found Kleinhans’ testimony more credible.  The Johnsons also claimed that the Board could not rely on Kleinhans’ testimony because he was never sworn in.  The Court responded by stating that the rules of evidence do not apply in administrative procedures.  Furthermore, the letter sent to the Johnsons and the record of the permit provided sufficient evidence that the Johnsons’ activities did not comply with the permit.  The Johnsons finally argued that the materials list attached to the permit served as evidence that Kleinhans authorized the new construction.  The Court pointed to Kleinhans’ testimony in which he admitted that some new construction was allowed under the permit only because “the new foundation’s footprint was slightly larger than that of the existing structures.”  Nevertheless, the primary purpose of the permit was to allow floodproofing to existing structures.  The Court rejected the argument that the Board’s decision was unsupported by the evidence.

Finally, the Johnsons purported that the Board’s decision was arbitrary, oppressive, and unreasonable.  The Johnsons first support the argument by stating that the decision was based on an incorrect theory of law and was unsupported by the evidence.  The Court already rejected those arguments in previous sections.  The Johnsons also claim that the decision prevents them from using their property and renders the property useless.  The Court noted that the Johnsons did not provide any support for these claims and that the Johnsons never asserted these claims before the Board.  They also failed to explain why the alleged uselessness of their property should allow them to violate their permit.  The Court found that the Board appropriately considered the evidence and came to a reasonable conclusion.  It affirmed the Board’s revocation of the Johnson’s permit.

Iowa DOT cannot claim discretionary immunity from flood damages resulting from Highway 63 bridge

by Gary Taylor

Schneider, et. al. v. State of Iowa
(Iowa Supreme Court, September 3, 2010)

In the late 1980s, the Iowa Department of Transportation (DOT) developed a plan to relocate a portion of Highway 63 to bypass the city of Denver, Iowa. The plan called for the construction of a four-lane divided highway along the west side of the city and a bridge spanning Quarter Section Run Creek, a stream flowing through Denver. The original construction of the bypass commenced in 1993 and concluded in 1994.
In a flood insurance study commissioned by the city in 1990, the creek was designated as a “regulatory floodway.” A floodway “‘is the channel of a stream plus any adjacent flood plain areas that must be kept free of encroachment so that [a] 100-year flood can be carried without substantial increases in flood heights.’” The bridge and related structures were designed to accommodate a 50-year flood event.  A higher, 100-year flood standard was typically used by the DOT when sizing bridges in flood insurance study areas and in other locations where the risk of high damage would be created for upstream businesses and homes. The State’s expert conceded the higher standard would have been utilized in the design of the bridge had it been designed for construction in a floodway, but noted the State did not learn the site had been designated as a floodway until after the bridge was built.

In May 1999, Denver experienced an extraordinary rain event and resulting flood which damaged thirty-five homes and thirty-four businesses. The intensity of the rain produced a volume of rainwater in the floodway consistent with the magnitude of a 250-year flood.  A flood study undertaken by the United States Department of Agriculture Natural Resources Conservation Service concluded the embankment constructed for the bypass “cut off a large portion of the floodway,” causing water moving through it to “back up” during the 1999 event. Computer models prepared for the study illustrated that the bypass structures increased the depth of the 1999 flood waters by as much as three feet in certain areas of the city and caused flooding in a part of the city that would not have flooded but for the construction of the bypass. The models also produced evidence tending to prove the bridge and related structures would have caused flood waters in a 100-year flood event to rise higher in some parts of Denver upstream from the bridge than would have been the case had the bridge and related structures not been placed in the floodway. Following a lengthy period of study and investigation of a range of options, the State chose to redesign and extend the bridge. The reconstruction of the bridge and the reconfiguration of the floodway in 2004 and 2005 modified the elevation of the floodway along the creek and substantially enhanced the capacity of the floodway to convey water away from the city.  The reconstruction brought the bridge and related structures into substantial compliance with the 100-year flood standard.

Claims addressing the 1993 bridge.  Owners of several properties damaged in the 1999 flood filed suit alleging the State negligently designed and constructed the first bridge. The landowners alleged the State breached a common-law duty by designing and constructing the bridge in a manner that obstructed the floodway and increased the depth of floodwater during the 1999 event. The landowners further alleged the State breached a duty derived from Iowa Code section 314.7 proscribing disruption of the natural drainage of surface water when improving or maintaining a highway. The State’s answer asserted immunity from liability under Iowa Code section 669.14 because the design and construction of the project were discretionary functions and because the project conformed with a generally recognized engineering or safety standard, criteria, or design theory prevailing at the time of its design and construction or reconstruction. The district court found in favor of the DOT, and the Court of Appeals affirmed based on the immunity provisions in 669.14(1). The Iowa Supreme Court granted further review to determine whether the State’s immunity for discretionary functions was applicable under the circumstances presented in this case.

After addressing several procedural matters, the Iowa Supreme Court focused on the issue of discretionary function immunity.  The Court disagreed with the conclusions of the lower courts.  “Given the clear statutory and regulatory prohibitions against the creation of floodway encroachments causing increased risk of loss to upstream properties in the event of a 100-year flood, we conclude the discretionary function defense has no application in this case. The State’s employees could not choose to ignore these prohibitions, and they therefore did not have available to them a choice to design and build encroaching, noncompliant structures in the floodway. As there was no such choice available, the employees of the State who designed and built the bridge did not perform discretionary functions for which section 669.14(1) would offer immunity.”  Because a fact issue remains on the question of whether the original design and construction of the bridge as a floodway encroachment violated prevailing engineering standards in existence at the time of the original design and construction of the project, and/or violated the DOT’s responsibility to keep from diverting natural drainage waters onto adjoining landowners, this portion of the case was remanded. 

Claims addressing the reconstructed bridge.  The landowners claimed permanent devaluation of their properties by the reconstruction of the bridge and rechanneling of the floodway, saying that the reconstructed bridge still encroaches upon the floodway.  However, the Court concluded that the record demonstrates the reconstruction design satisfied the 100-year design standard and achieved the approval of the DNR. The plaintiffs failed to produce evidence tending to prove the reconstructed bridge does not comply with the 100-year standard, the generally accepted engineering standard in existence at the time of the reconstruction.  Therefore, the DOT was entitled to immunity under Iowa Code 669.14(8) which grants immunity if construction was “in accordance with a generally recognized engineering or safety standard, criteria, or design theory in existence at the time of the construction or reconstruction.”

SF 2136 floodplain management bill passes Senate

by Gary Taylor

On a 26-20 vote SF 2316 (formerly SSB 3098, the companion of HSB 573 which I reviewed here) passed the Iowa Senate late last Thursday and was referred to the House.  SF 2316 contains several minor amendments from the original version, but also differs from its original version in two significant respects.  First, it does not make the 0.02 percent (aka 500-year) floodplain the new regulated floodplain.  Instead it directs the DNR, in consultation with the Rebuild Iowa Office,  Iowa Homeland Security, the League of Cities, the State Association of Counties and the conservation districts to cooperate to develop a model ordinance “for the regulation of the two-tenths percent floodplain by political subdivisions.”  The bill does not state that cities and counties would then be required to adopt the model ordinance (if anyone has any insights on the discussion surrounding this issue please comment below).   In the model ordinance the DNR shall consider including requirements for the purchase of flood insurance, requirements for new development or retrofitting existing development, the effect of levees, the use of fill and offsets required for the use of fill, and categories of development that should be prohibited. 

Second, it tasks the Water Resources Coordinating Council with developing recommendations for “watershed governance including but not limited to assigning responsibility for assessment of flood risk, assessment and prioritization of options for reducing flood risk, allocation of flood reduction resources, operation of controlled water retention structures, and the purchase of land or easements by cities pursuant to section 364.4.”  The council would be required to submit its recommendations to the governor and the general assembly no later than November 15, 2010.

More pending Iowa legislation

by Gary Taylor

The second bill to be introduced in the Rebuild Iowa standing committee of the House is HSB 573, pertaining to floodplain management.  This legislation is intended to implement some of the recommendations from the Water Resources Coordinating Council’s (WRCC) floodplain subcommittee, charged by the legislature in 2009 to submit policy and funding recommendations that promote “a watershed management approach to reduce the adverse impact of future flooding on this state’s residents, businesses, communities, and soil and water quality.”

At the risk of oversimplification, HSB 573 can be summarized in the following bullet points:

  • It makes the 0.2 percent (500-year) floodplain the regulatory floodplain under Chapter 455B of the Iowa Code.
  • It prohibits the reconstruction of substantially damaged structures in the floodway (with a few listed exceptions).
  • It requires elevation of new structures in the 0.2 percent floodplain 3 feet above the natural ground line.
  • It prevents the construction of critical public facilities in the 0.2 percent floodplain unless impracticable.  If that is the case, the facility must be designed to be operable in the event of a 0.2       percent flood.
  • The bill requires the Iowa Department of Agriculture and Land Stewardship (IDALS), with the U of I Flood Center and ISU, to conduct a study of the effects of agricultural tile drainage on infiltration, surface runoff and flooding, and evaluate the feasibility of seasonal retention.
  • It requires the WRCC to develop a marketing campaign to educate citizens about “the need to take personal responsibility for the quality and quantity of water in their local watersheds.”
  • It requires IDALS to initiate programs to integrate multipurpose wetlands into watersheds with drainage districts or larger drainage systems.
  • It tasks the Iowa Department of Natural Resources (IDNR), IDALS, USDA-NRCS and the U of I Flood Center to establish a watershed demonstration pilot project for urban and rural areas that maximizes soil water holding capacity from precipitation, minimizes scour erosion and sand deposition during floods, manages water runoff in uplands under saturated soil conditions, and reduces structural and nonstructural flood damage.
  • It encourages the establishment of an Iowa chapter of the Association of State Floodplain Managers.
  • It directs ISU Extension, in cooperation with WRCC and its member agencies to work with floodplain and hydrology experts to educate the general public about floodplains, flood risks and basic floodplain management principles.
  • It requires IDNR and IDALS to work with USDA-NRCS to reassess criteria for conservation practices in NRCS manuals to take into account the effects of climate change.
  • It requires real estate disclosure statements to include floodplain location information and whether alluvial soils are present on the property.
  • It requires the IDNR to modify permits issued under the national pollutant discharge elimination system (NPDES) to require the mitigation of soil compaction and the replacement of topsoil as part of the construction process.
  • It requires DNR to establish criteria to prioritize investments in levees in situations where no other practicable alternative exists, to discourage the construction of additional levees in rural areas generally, and “encourage policies and practices that give priority to reconnecting streams and rivers to their floodplains through modification or removal of existing levees.”

Again, if you have opinions or ideas on this legislation please share your comments with the readers of this blog.  Just click on “comment” above.

We will track this legislation and keep you informed.

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