Category: Iowa Court of Appeals

When suing county, failure to serve notice on county is not a minor procedural error

Gary Taylor

by Gary Taylor

Dewit and Dewit v. Madison County Zoning Board and Madison County Zoning Board of Adjustment
Iowa Court of Appeals, September 13, 2017

In March 2015 the Madison County Zoning Office filed civil infractions against the Dewits for several zoning ordinance violations.  The case number assigned to these infractions was CVCV034188.  These infractions were resolved through a consent order in September 2015 which required the Dewits to abate the violations within six months (by February 2016).  After the consent order was issued, the Dewits filed an application for an agricultural exemption from the county’s zoning ordinance, which the county zoning administrator denied.  On appeal, the Madison County Zoning Board of Adjustment (ZBA) affirmed the denial.

On April 20, 2016 the Dewits filed a petition for writ of certiorari challenging the ZBA’s decision; however, they filed it in the civil infraction case CVCV034188.  The county attorney accepted service of the petition, but the original notice was not included in the materials sent to or accepted by the county attorney.  The county moved to dismiss the petition on the ground that the petition should have been docketed as a new action and not as a filing in the civil infraction case.  On June 7, 2016 the district court denied the motion to dismiss, and ordered the clerk of court to transfer the petition and all related filings to the appropriate docket and to assign a new case number to the petition.

The ZBA then filed a motion to dismiss on September 1, 2017 for failure to timely serve original notice on the board.  The next day the Dewits served notice on the ZBA, but this was 135 days from the original filing of the petition on April 20.  (Iowa Rules of Civil Procedure require original notice to be served on a defendant within 90 days of filing a petition).

The Dewits contended that the original notice was served on the ZBA 80 days from the day the district court transferred the petition to a new docket with a new case number; however, at the time the district court specifically ordered that the petition “would relate back to and be deemed to have commenced on the date of filing, April 20.” Thus service of the original notice did fall outside the 90 day window.

The Dewits also contended that the county attorney’s acceptance of the petition alone is sufficient to comply with Iowa Rules of Procedure.  The court rejected this as well.

The original notice and petition are separate and distinct….The contents of the original notice are prescribed by rule.  In contrast, the petition is a pleading that sets forth a simple and concise statement of the claim or claims at issue. [While] it is true Iowa courts are committed to liberal construction of the rules of procedure to insure resolution of disputes on their merits, the failure to timely serve original notice cannot be deemed a minor or technical error.

The district court did not err in dismissing the Dewits’ petition.

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Courts Defer to Staff and Board of Adjustment Interpretation of Code

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by Eric Christianson

Doss and Huffer vs. Ames Zoning Board of Adjustment
Iowa Court of Appeals, February 22, 2017

The City of Ames received a complaint that Angela Doss and Duane Huffer were building a fence in violation of the city’s zoning ordinance. The fence was 6 feet high and located in their backyard abutting other residential properties. The city determined that the fence was indeed in violation of the following section of code and notified the homeowners in a letter.

The maximum height of fences in any setback abutting a street right-of-way is four (4) feet, except that up to six (6) feet of fence is allowed in any side or rear setback if:

(a) The lot does not abut the front yard of any other residential property along the same side of the street;
(b) The fence is at least (5) feet from the property line abutting a street right-of-way.

-Ames City Ordinance § 29.408(2).

The homeowners appealed staff’s decision to the Ames zoning board of adjustment. The board unanimously denied the homeowners’ appeal. The homeowners appealed to district court alleging:

  1. the Board misinterpreted the ordinance because it was not clear on its face whether the semicolon between (a) and (b) meant “and” (conjunctive) rather than “or” (disjunctive);
  2. the city enforced the ordinance inconsistently, only in response to complaints;
  3. the city’s delay before sending the December letter precluded enforcement on procedural grounds and laches;
  4. the city’s interpretation of the ordinance creates a notice issue in violation of due process; and
  5. the city’s fence ordinance conflicts with Iowa’s partition-fence law.

The district court ruled that the partition-fence issue was not preserved for its review and resolved the four other issues in favor of the board of adjustment.

The homeowners appealed to the Iowa Court of Appeals. The court cited an earlier decision that, “the court may not substitute its decision for that of the board.” The decision of the board of adjustment is given a strong presumption of validity. In all other issues as well, the court affirmed the holding of the district court.

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Dangerous Conditions Cause Mobile Home Park to Lose Legal Nonconforming Status **Decision overturned**

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The decision discussed below has been overturned by the Iowa Supreme Court. 

This post will be left as it was, but please read the Iowa Supreme Court’s Ruling on Des Moines v. Odgen for an update to the case.

by Eric Christianson

Des Moines v. Ogden
Iowa Court of Appeals, June 7, 2017

Frank Ogden owns and operates a nonconforming mobile home park on the south side of Des Moines. He purchased the property in 2013 from his uncle. The property consists of a narrow u-shaped access road with mobile homes around the interior and exterior of this road. Although the 1953 Des Moines zoning ordinance prohibited mobile home parks in the city, the owner of the property obtained a certificate of occupancy for the mobile home park in 1955. The historical record is not clear, but its use as a mobile home park dates back to some time between 1947 and 1955.

The best record documenting historical use is an aerial photograph from 1963. The photograph depicts “permanent homes that are in close proximity to each other with additional structures attached to the homes.”

Current photographs depict the property as:

[A] congested, dilapidated, and hazardous jumble of structures. Many of the mobile homes are within feet of each other based on the addition of porches, decks, and living space. Residents park cars throughout the property narrowing portions of the already inadequate access road. Bulk trash items—such as tires, boats, and storage bins—are littered throughout the property. Grills, fences, gardens, and children’s toys also crowd the property.

The city did not issue any warnings or citations regarding the use of the property as a mobile home park until 2014. In 2014, a zoning administrator notified Ogden by letter of numerous violations of the 1955 Des Moines Municipal Code, under which the original certificate of occupancy had been awarded. These included setback violations, failure to maintain the access road, and additions to trailers among other issues. The letter also warned that the park’s violations posed a threat to the health and safety of the occupants.

Ogden did not take any action to remedy the violations. In October 2014, the city sought an injunction to close the park for the above listed violations. At trial the Des Moines Fire Marshall testified that the proximity of the mobile homes and the narrow access road created potentially dangerous conditions for residents.

The trial court found the fact that the occupancy permit was issued is proof enough that the property was in compliance with the above regulations at the time that the legally nonconforming use was established. This means that Ogden had the right to continue his nonconforming use subject to the laws in place in 1955 as long as the nature and character of the use as it existed in 1955 is not changed.

The court held that even under the laws in place in 1955, the certificate of occupancy should be revoked as the park poses a threat to “the safety of life or property”. The court also held that, “’use of [the] property has intensified beyond acceptable limitations’ because the conditions ‘pose a real threat in the event of an emergency.’”

Ogden appealed to the Iowa Court of Appeals arguing that the court was wrong to find that the nonconforming use posed a threat to life or property and that the use had been unlawfully expanded. He also argued that estoppel prevents the city from obtaining an injunction.

In addition to procedural questions relevant to this case the Court of Appeals examined the questions of nonconforming use and whether estoppel prevented the city from obtaining an injunction to close the park.

Nonconforming Use A nonconforming use is “one that lawfully existed prior to the time a zoning ordinance was enacted or changed, and continues after the enactment of the ordinance even though the use fails to comply with the restrictions of the ordinance.” A nonconforming use may continue indefinitely until abandoned, but it may not be “enlarged or extended”. The Des Moines Municipal Code adds that a nonconforming use may lose its protected status if discontinuance is “necessary for the safety of life or property”.

The Iowa Supreme Court has never ruled on whether the addition of structures or the expansion of homes in a mobile home park constitutes and an unlawful expansion of the nonconforming use. Other state courts, however, have found that replacing mobile homes with larger models or enlarging existing mobile homes in violation of setback requirements may constitute an unlawful intensification of the nonconforming use.

The Appeals Court found that:

Although this mobile home park has not changed in size or use, the record demonstrates it has grown within its borders in the numbers and location of structures attached to the mobile homes resulting in a narrowing of open space on the roadways and between the homes. […] these changes over a half century have enhanced and intensified the non-conforming use to the point where it is a danger to life and property. […] Ogden’s use of the property is not a lawful intensification of an existing nonconforming use. The present congestion and crowding between structures and narrowing the roadway changes the nature and character of the 1955 non-conforming use and presents a danger to residents and neighbors of the park.

Equitable Estoppel Further, Ogden argued that equitable estoppel bars the city from closing the mobile home park. The Court Defined equitable estoppel as, “a common law doctrine preventing one party who has made certain representations from taking unfair advantage of another when the party making the representations changes its position to the prejudice of the party who relied upon the representations.”

The court states that to prove estoppel Ogden must demonstrate:

  1. a false representation or concealment of material fact by the city,
  2. a lack of knowledge of the true facts by [Ogden],
  3. the city’s intention the representation be acted upon, and
  4. reliance upon the representations by [Ogden] to their prejudice and injury.

The court found that Ogden’s claim failed under the first element of the test. The city’s failure to enforce the zoning ordinance does not amount to false representation or concealment of material fact. The city does not notify property owners of every infraction. Instead the city’s enforcement is triggered by complaints.

The court affirmed the grant of the city’s request for an injunction against Ogden’s use of the property as a mobile home park.

Chief Judge Danilson partially dissented. He argues that the city failed to prove either that the mobile home part exceeded its original non-conforming use or that it poses a threat to the safety of people or property. In his opinion, there is no conclusive evidence of the condition or number of homes in the part in 1955, and the size and use of the park have not changed. He argues that although the condition of the park has likely deteriorated, there are less dramatic ways to improve conditions in the park.

Further, Danilson argues that there is insufficient evidence to conclude that the park poses a danger to people or property. The city or fire department have not taken any actions based on unsafe conditions, and the fire chief’s testimony was too general to draw any specific conclusions about the park’s safety.

Abandoned/unsafe buildings, Housing, Iowa Court of Appeals, Mobile and manufactured homes, Non-Conforming Uses , , ,
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Constitutional claims not preserved in defense to nuisance citation

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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.

 

 

 

 

 

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Prestage Farms CAFO in Poweshiek County not protected from nuisance suit by Iowa Code

Gary Taylor

by Gary Taylor

Patricia McIlrath v. Prestage Farms of Iowa, LLC
Iowa Court of Appeals, November 23, 2016

The McIlraths purchased their farm in rural Poweshiek County in 1971.  Their son and his family also live on the farm, in a house about 300 feet from the original farmhouse where Patricia and her husband live.  In 2012 Prestage Farms built an animal confinement facility (CAFO) for 2,496 hogs about 2,200 feet from the McIlrath’s home.  In July 2013, the McIlraths brought suit against Prestage, claiming the odor from the CAFO constituted a nuisance.  Prestage requested summary judgment prior to trial, claiming immunity from the suit based on Iowa Code 657.11(2) (Iowa’s right-to-farm legislation), but the Poweshiek District Court granted summary judgment in favor of the McIlraths on this point, finding section 657.11 to be unconstitutional based on the Iowa Supreme Court’s ruling in Gacke v. Pork Xtra.  The Court found, even if the statute was not unconstitutional based on the facts of the case, the statute would not provide immunity to Prestage Farms if (1) the CAFO unreasonably and for substantial periods of time interfered with the person’s comfortable use and enjoyment of the person’s life and property, and (2) the CAFO failed to use existing prudent generally accepted management practices reasonable for the operation.  The jury returned a verdict affirmatively determining that both points were met by the evidence.  It awarded damages of $100,000 for loss of past enjoyment, $300,000 for loss of future enjoyment, and $125,000 for diminution of property value.  Prestage appealed.

The Court of Appeals first examined Prestage’s claim that Iowa Code 657.11 in fact confers immunity from nuisance claims in the present case.  The court focused on the following passage from Gacke:

Property owners like the Gackes bear the brunt of the undesirable impact of this statute without any corresponding benefit.  Moreover, their right to use and enjoy their property is significantly impaired by a business operated as a nuisance, yet they have no remedy.  Unlike a property owner who comes to a nuisance, these landowners lived on and invested in their property long before Pork Xtra constructed its confinement facilities.  Under these circumstances, the police power is not used for its traditional purpose of insuring that individual citizens use their property “with due regard to the personal and property rights and privileges of others.”  [citation omitted].  Instead, one property owner—the producer—is given the right to use his property without due regard for the personal and property rights of his neighbor.  We conclude that section 657.11(2) as applied to the Gackes is unduly oppressive and, therefore, not a reasonable exercise of the state’s police power.  Accordingly, the statutory immunity violates article I, section 1 of the Iowa Constitution and may not be relied upon as a defense in this case.  We express no opinion as to whether the statute might be constitutionally applied under other circumstances.

The Court of Appeals concluded that in all relevant aspects, the factual situation in the present case was substantially similar to that presented in Gacke, making 657.11 unconstitutional in the present case.  There was no evidence McIlraths received any benefit from the statute, and they lived on and made improvements to their property long before the CAFO was built.

Prestage claimed several irregularities in the trial proceedings warranted a new trial; however, the Court of Appeals rejected all Prestage’s claims. Similarly, the court rejected all claims of Prestage that the evidence submitted at trial was insufficient to support the jury’s conclusion of liability and award of damages.

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Creek stabilization plan went beyond scope of original drainage easement

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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).

 

 

 

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Community group did not have standing to challenge rezoning denial

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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.

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

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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.

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Links to law presentations from 2015 APA-Iowa Annual Conference

Gary Taylor

The powerpoint presentations from the 2015 APA-Iowa Annual Conference held in Sioux City on October 14-16 are now available here.

Thursday afternoon session on Signs and Cell Towers, by Peter McNally, Dustin Miller and Gary Taylor

Iowa APA 2015 Cell Towers
Iowa APA 2015 Signs

Friday morning AICP Law session by Gary Taylor

Iowa APA 2015 Law session

cell towers, Education/Conferences, Federal courts, Federal legislation, Iowa Court of Appeals, Iowa legislation, Iowa Supreme Court, Signs and billboards , , , , , ,
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Notice posted in internal hallway of building “reasonably calculated to apprise the public of the information”

Gary Taylor

by Gary Taylor

City of Postville, et al v. Upper Explorerland Regional Planning Commission
Iowa Court of Appeals, June 10, 2015

This case came back to the Court of Appeals on remand from the Iowa Supreme Court.  In its 2013 decision the Supreme Court determined that there was a genuine issue of material fact on the issue of whether placing notices of Upper Explorerland Regional Planning Commission (Commission) meetings on a bulletin board in the building’s interior hallway outside the meeting room complied with Iowa’s Open Meetings Act.

Iowa Code 21.4 provides in part:

…[A] governmental body shall give notice of the time, date, and place of each meeting including a reconvened meeting of the governmental body, and the tentative agenda of the meeting, in a manner reasonably calculated to apprise the public of that information. Reasonable notice shall include advising the news media who have filed a request for notice with the governmental body and posting the notice on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose at the principal office of the body holding the meeting, or if no such office exists, at the building in which the meeting is to be held.

The facts relevant to the issue raised were recited by the Court of Appeals:

“The bulletin board is approximately thirty to forty feet from the main public access door.  The board is not visible from the entrance door to the office.  The office is open to the public Monday through Friday from 8:00am to 4:30pm…. The testimony indicated the bulletin board was visible from the reception area, but the board’s contents were not.  The Commission’s secretary testified that you could not specifically see what was on the bulletin board from the reception area.  The meeting notices have been posted on the same bulletin board in the same hallway outside the room where the Commission has met for at least twenty years.  While the general public did not regularly frequent the hallway, or the Commission’s building itself, the public was not prohibited from entering or viewing the contents of the bulletin board.  The receptionist, who had worked at the Commission for thirty-two years, testified she never turned a member of the public away from the door. However, she could not recall any member of the public ever coming to the office to ask when and where the Commission met.”

Approximately ten years before the lawsuit was filed, the Commission installed a new bulletin board located in the reception area of the building immediately inside the front door, but the meeting notices continued to be posted on the original bulletin board down the hall outside the meeting room.  The Court of Appeals observed, however, that “there is no indication that posting the notice on the new bulletin board would have resulted in more members of the public being apprised of the meetings since the only people to frequent the building were those who had business with the Commission or had an appointment.”  The Court concluded that “the statute does not require the notice of the meeting be viewable twenty-four hours a day, or that it be in the most visible place available.  All that is required is that the Commission substantially comply with the requirement that the notice be posted ‘in a manner reasonable calculated to apprise the public of the information.'”   Substantial evidence was present to support the district court’s conclusion that the Commission had met this standard.

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