Court of Appeals finds $25,000 award reasonable for sewer easement

by Eric Christianson

City of North Liberty v. Gary Weinman
(Iowa Court of Appeals, April 5, 2017)

In 2014 North Liberty was in the process of developing what would become Iowa City Liberty High School to alleviate overcrowding in the Iowa City School District. However, the site selected did not have access to sanitary sewer. To service the area, the City of North Liberty explored several options before selecting its ultimate path in 2014. This path crosses the private property of 13 individuals. The city was able to secure temporary easements (for construction) and permanent easements (for ongoing maintenance) from 12 of the 13. The final holdout was Dr. Gary Weinman who first sought through a pair of lawsuits to force the city to stop construction and reconsider other routes. Those suits failed.

Easements are always considered takings and therefore Weinman was entitled to just compensation under the Fifth Amendment. A compensation commission decided that Weinman was entitled to $75,000. This included a temporary easement for construction (1.1 acres for four months) and a permanent easement (.75 acres). The city appealed claiming that amount was excessive. Weinman requested a jury trial so the matter was tried de novo to the jury. The jury set the compensation amount at $25,000 relying largely on the testimony of an expert assessor brought by the city.

Weinman appealed this decision to the Iowa Court of Appeals. The Court of Appeals does not  generally reverse compensation awards provided that they are not “wholly unfair or unreasonable.” In this case, because the jury’s decision was reasonable based on the evidence, the award of $25,000 was affirmed.

 

Courts Defer to Staff and Board of Adjustment Interpretation of Code

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.

Story County District Court invalidates Ames lap dance ordinance

by Gary Taylor

Relying on Mall Real Estate v. City of Hamburg (blogged here) Story County District Court recently ruled that the Ames “lap dance ordinance” is preempted by state law.

Rebekah Beth Williams and Alijah Blue Allison v City of Ames (PDF)
Story County District Court, November 14, 2014

Dangerous Curves serves alcohol and hires women to dance while wearing bikinis or underwear.  In October 2013 an Ames police officer conducted a bar check of Dangerous Curves and observed the defendants performing lap dances while having exposed buttocks.  Ames Municipal Code Section 17.31(1) prohibits this activity.  It provides

No person appearing as an entertainer on commercial premises subject to an Iowa liquor license or beer permit, or on premises of an ‘adult entertainment business’ … shall fondle, caress or sit on the lap of any customer on said premises if the entertainer presents a performance on the premises while nude or so attired as to leave exposed the entertainer’s ….buttocks….”

The defendants were each issued a citation for violation of Section 17.31. The defendants pled not guilty and filed a motion to dismiss, arguing (1) Iowa Code 728.11 preempts Section 17.31, and (2) Section 17.31 is unconstitutionally vague and overbroad. The motion to dismiss was denied, and the District Associate Judge found the defendants guilty of violating Section 17.31.  The defendants appealed to the Iowa District Court for Story County.

Preemption.  Iowa Code 728.11 provides

In order to provide for the uniform application of the provisions of this chapter relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this chapter, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials.  All such laws, ordinances or regulations shall be or become void, unenforceable and of no effect on January 1, 1978.  Nothing in this section shall restrict the zoning authority of cities and counties.

Iowa Code 728.5 regulates public indecent exposure, and specifically provides
1.  An owner, manager, or person who exercises direct control over a place of business required to obtain a sales tax permit shall be guilty of a serious misdemeanor under any of the following circumstances:
b.  If such person allows or permits the exposure of the genitals or buttocks or female breast of any person who acts as a waiter or waitress.
The District Court noted that in Mall Real Estate v. City of Hamburg the Iowa Supreme Court concluded that the legislature intended to include live nude dancing within the meaning of ‘obscene materials,’ and the effect of Section 728.11, therefore, was to preempt Hamburg’s nude dancing regulations.  The defendants asserted that Mall Real Estate makes it clear that Section 17.31 is preempted by the Iowa Code.  The City argued, however, that Mall Real Estate only works to apply the Iowa Code to nude dancing performances, while Section 17.31 addresses physical contact. According to the City, “once the dancer touches a customer the dancing is no longer a performance fitting within the definition of ‘obscene material.'” The City then has a governmental interest in protecting the health and safety of its citizens.
The District court sided with the defendants, noting that the performances in question in Mall Real Estate included physical contact between the dancers and customers and, therefore, “the Supreme Court has already determined that a live nude dancing performance, including physical contact with customers, is obscene material under the Iowa Code.”  As a result, Section 17.31 regulates obscene material and is expressly preempted by state law.
Vague and overbroad ordinance.  Even though the ruling for the defendants on the preemption argument had the effect of ending the controversy, the District Court proceeded to the constitutional question “in the event that this decision is appealed and the Appellate Courts of Iowa take another look at the [Mall Real Estate] case, which was decided by a split court.”
The District Court made quick work of this argument.  It first cited a 1977 Iowa Supreme Court case that stated “we find it difficult to believe [the defendant] seriously contends people of common intelligence would not understand the meaning of nudity or would not be able to determine when the ordinance was violated by exposing to public view the breasts, buttocks, or genitals.”  Because the term ‘buttocks’ is not vague, requiring the entire buttocks to be covered is not overbroad.  “It would be easily discernible to observe whether or not the buttock was covered either partially or fully.”
Based on the preemption determination, the District Court reversed the defendants’ convictions.

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