Iowa Supreme Court Rules that Cities May Take Possession of Abandoned Properties

Cby Eric Christianson

Eagle Grove v. Cahalan Investments
(Iowa Supreme Court, December 1, 2017)

Cahalan Investments purchased two residential properties in the City of Eagle Grove, one in 2002 and the other in 2011. Both properties have remained unoccupied and in deteriorating condition since their purchase. The properties were the subject of multiple complaints by neighbors and were found to be unfit for human occupancy.  In 2014 the city began an effort to clean up a number of nuisance properties, these properties were among those targeted. The city sent several letters to Cahalan advising them that they were in violation of the city’s nuisance ordinance. Cahalan made no effort to abate the nuisance and would later testify that they had no intention of making either property habitable in the foreseeable future

Iowa Code section 657A.10A allows cities to petition a district court to transfer ownership of abandoned properties to the city. The code details the following criteria that a court is to use when determining if a property has been abandoned.

a. Whether any property taxes or special assessments on the property were delinquent at the time the petition was filed.
b. Whether any utilities are currently being provided to the property.
c. Whether the building is unoccupied by the owner or lessees or licensees of the owner.
d. Whether the building meets the city’s housing code for being fit for human habitation, occupancy, or use.
e. Whether the building is exposed to the elements such that deterioration of the building is occurring.
f. Whether the building is boarded up.
g. Past efforts to rehabilitate the building and grounds.
h. The presence of vermin, accumulation of debris, and uncut vegetation.
i. The effort expended by the petitioning city to maintain the building and grounds.
j. Past and current compliance with orders of the local housing official.
k. Any other evidence the court deems relevant.

The code then states that if the court finds the property is abandoned, “the court shall enter judgment awarding title to the city.” In this case, the district court found that Cahalan’s properties were indeed abandoned under the definition set forth in the statute. In fact Cahalan Investments does not dispute this finding; however, Cahalan argued that awarding ownership of these properties to the city without compensation violated the takings clause of the US Constitution. In this case, the district court found Cahalan Investment’s argument convincing and did not award title to the City of Eagle Grove.

The City of Eagle Grove appealed the district court’s decision to the Iowa Supreme Court.

The Iowa Supreme Court revisited the question of whether awarding ownership to a city under Iowa Code section 657A.10 is constitutional.

Proving that a section of state code is unconstitutional is not easy. The court quotes an earlier decision stating that, “statutes are cloaked with a presumption of constitutionality. The challenger bears a heavy burden, because it must prove the unconstitutionality beyond a reasonable doubt.”

Takings jurisprudence is based primarily on the takings clause of the Fifth Amendment which states that, “private property [shall not] be taken for public use, without just compensation.” To determine if a governmental action has violated the takings clause, the court uses the following framework:

(1) Is there a constitutionally protected private property interest at stake? (2) Has this private property interest been “taken” by the government for public use? and (3) If the protected property interest has been taken, has just compensation been paid to the owner?

In this case, Cahalan’s case fails on the first question. The court cites an earlier ruling which states that “the State has the power to condition the permanent retention of [those] property right[s] on the performance of reasonable conditions that indicate a present intention to retain the interest[s].” Ownership of property comes with many rights, but is not absolute. Here the court is saying that in Iowa a property owner’s rights do not include allowing properties to remain abandoned. By doing so here, Cahalan has forfeited their rights.

By allowing the properties to persist in a condition unfit for human habitation, allowing the properties to remain vacant, and failing to make timely and reasonable efforts to remedy the public nuisances created by the properties after notification of the problems, Cahalan did not comply with the section 657A.10A(3) criteria. Thus it failed to “indicate a present intention to retain the interest.” See id. at 526, 102 S. Ct. at 790. We conclude the district court erred in concluding Cahalan holds a constitutionally protected private property interest in the abandoned properties for which just compensation is owed.

Finding that Cahalan Investment’s stake in the properties was not a constitutionally protected right is enough to decide the case, but for completeness the court did examine the second question as well.

Assuming that Cahalan did have a constitutionally protected private property right the court still found that takings jurisprudence supports the city’s actions. A taking occurs when the government denies a property owner “all economically beneficial or productive use” of property. In this case there is no dispute that Cahalan Investments has been deprived of all use of these two properties. Generally when that occurs, the government is required to pay just compensation. However, there is a public nuisance exception in takings jurisprudence. The state has the “power to abate nuisances that affect the public generally, or otherwise,” and this action, “is not a constitutional taking for which compensation is required.”

The court also examined whether the fact that Cahalan Investments purchased these properties before the enactment of this particular section of 657A would prevent it from being applied in this case. Here the court found that the state’s existing legislation as well as the principles of nuisance law already in place at the time of purchase were sufficient to hold that Cahalan never possessed the right to maintain properties in an abandoned state.

The Iowa Supreme Court reversed the finding of the district court that the city’s exercise of 657A constituted an unconstitutional taking and remanded the case back to district court.

Township trustees may determine what constitutes a “legal fence”

by Eric Christianson

Hopkins vs. Dickey
Iowa Court of Appeals, October 25, 2017

This dispute concerns the repair and maintenance of a 600 foot fence separating the properties of Matthew Hopkins and Robert Dickey. Iowa’s Fence Code 359.17(1) uses the “right hand rule” to determine who is responsible for the maintenance of a fence. Essentially, if the two property owners were to stand facing one another at the center of their adjoining property line, each is responsible for the fence to his/her right unless an alternate agreement is made in writing. In this case, Dickey is responsible for the west 300 feet and Hopkins is responsible for the east 300 feet.

In 2010 after several instances of cattle escaping, Dickey informed Hopkins that he needed to repair that portion of the fence. Hopkins declined to do so, stating “that’s not what the law requires” and he already had “too many projects.” Dickey filed a complaint with the local township trustees, who are responsible for managing fence disputes. The trustees ordered Hopkins to “erect and maintain the East 300 feet of the partition fence” and that such be a “lawful fence” having “five barb wires attached to posts not more than 10 feet apart.”

Hopkins appealed the trustees’ decision to district court. The district court upheld the trustees’ decision, finding the application of the right-hand rule was both “a customary practice” and “fair and equitable.” Hopkins then appealed to the Iowa Court of Appeals alleging:

  1. A verbal agreement with the previous landowner excused Hopkins from all responsibility to maintain the fence.
  2. The fact that the decision only applied to him violated case law that states that Iowa’s fence law exists “to equalize the partition fence burden.”
  3. The specifications that he was ordered to build the fence to exceeded those required by law.

The court of appeals affirmed the district court on all three points.

The alleged prior verbal agreement is hearsay and therefore inadmissible. Further, even if a prior agreement existed, it should be legally recorded according to Iowa Code 359A.13 to have any authority.

The fact that the court order only applies to Hopkins does not violate the principle of equalizing the burden as, at the time of trial, Dickey had recently rebuilt half of the partition fence. The court stated that it is undisputed that the portion of the fence built by Dickey was “in good repair” at the time of the fence viewing. Therefore it was not necessary to order Dickey to maintain the fence.

Finally, the appeals court found that the trustees have some leeway in deciding what constitutes a legal fence:

The term “legal fence” as defined in the statute is not a prescription, however, for how every partition fence must be constructed or what fence viewers must require, but sets forth a minimum standard for a “legal fence.” […] In this case, the fence viewers and the court determined Hopkins was responsible for a portion of existing fence that was in such disrepair it did not constitute a “legal fence.” The district court ordered Hopkins to construct a new fence in keeping with the style and character of the existing fence and in keeping with the fence constructed by Dickey and approved by the fence viewers.

Iowa Law Limiting Occupancy Restrictions to go into Effect January 1, 2018

By Eric Christianson

House File 134 was signed into law on April 21 by Gov. Branstad limiting the ability of cities to set occupancy restrictions based on familial relationships. This law has appeared several times in various forms over the past few years in the Iowa legislature. It was opposed by many larger cities along with the Iowa League of Cities. It was supported by the Iowa ACLU as well as the Landlords of Iowa.

The bill amends Iowa Code 414.1 subsection 1, adding the bolded text:

a. For the purpose of promoting the health, safety, morals, or the general welfare of the community or for the purpose of preserving historically significant areas of the community, any city is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.

b. A city shall not, after January 1, 2018, adopt or enforce any regulation or restriction related to the occupancy of residential rental property that is based upon the existence of familial or non familial relationships between the occupants of such rental property.

This change will mostly impact college towns which were actively trying to limit the number of students moving into historically single-family neighborhoods.

See coverage of the bill’s passage in the Des Moines Register and the Ames Tribune and Little Village to read more about how some communities have responded.

You can find a copy of the bill as well as its history here.

 

 

Links to law presentations from 2015 APA-Iowa Annual Conference

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

Third and final installment: Iowa’s impending wireless facilities siting legislation

One of the goals of HF655 was to fill in “gaps” in the FCC rules when it comes to local regulation of the placement of new towers.  The first two posts on this blog essentially addressed those circumstances.  Another goal of the bill was to create a set of rules at the state level (which is then applied locally) that is identical to the FCC rules at the federal level.  Several sections of HF655 are thus simply a state codification of the shot clock rules (2009 FCC ruling), and a state codification of the rules from the Spectrum Act (2014 FCC ruling) that streamline approval of activities that do not constitute a “substantial change.”  The bill therefore

  • Sets forth definitions for “base station,” “collocation,” “eligible facilities request,” existing tower,” “substantial change,” “tower,” “transmission equipment,” “wireless support structure” that mirror those in the prior two FCC rulings.
  • Requires local governments to act on new tower applications within 150 days of receiving a complete application for construction, consistent with the 2009 FCC ruling.
  • Requires local governments to act within 90 days of receiving a complete application for “initial placement or installation of transmission equipment on wireless support structures, a modification of an existing tower or existing base station that constitutes a substantial change, or a request for construction or placement of transmission equipment that does not constitute an eligible facilities request,” consistent with both the 2009 and 2014 FCC rulings.

All records, documents, and electronic data submitted to the local government as part of the application process are treated as information subject to the Open Records Act (Iowa Code Chapter 22).  Presumably this provision was acceptable to the industry because the bill put significant limitations on the types of information that the local government could request from the applicant in the first place.

Part II: Iowa’s impending wireless facilities siting legislation

HF655 contains a section governing the contractual relationship between a local government and wireless facilities provider when the provider leases public land for such facilities.
  • The local government must offer the market rate value for use of that land.
  • The term of the lease shall be for at least twenty years.
  • If the local government and the provider cannot agree on the market rate for the lease, the appraisals of a three-person panel of appraisers shall determine the market rate. Each party will appoint one appraiser and the two appointed appraisers shall select a third appraiser. Each party shall bear the cost of its own appointed appraiser and equally share the cost of the third appraiser.
  • Each appraiser shall then independently appraise the appropriate market rate for lease of the land. The market rate shall then be set at the median value between the highest and lowest market rates determined by the three independent appraisers. However, if the median between the appraisals of the appraisers appointed by each party is greater than or less than ten percent of the appraisal of the appraiser selected by the two appraisers, then the appraisal of the appraiser selected by the two appraisers shall determine the rate for the lease.
  • The local government can then  approve or reject the lease rate as determined by the appraisal process within fifteen days following completion and receipt of the appraisals. Failure to reject the lease rate within fifteen days constitutes approval of the lease rate.
A local government shall not mandate, require, or regulate the installation, location, or use of transmission equipment on a utility pole.
HF655 dos not prohibit an airport or local government from administering and enforcing airport zoning under Iowa Code Chapter 329.
It does not infringe upon the jurisdiction of an historic preservation commission or local government to approve or deny applications for proposed alterations to exterior features within an historic preservation district, or on local historic landmarks.

First installment: Iowa’s impending wireless siting rules

The Iowa Legislature has sent a bill to the Governor that will create a set of uniform rules for local governments as they regulate the placement and alteration of  wireless facilities (cell towers and other types of wireless facilities).  HF655 is meant to work in harmony with previously adopted FCC rules, such as the shot-clock rule (here and here) and the rules implementing the Spectrum Act.   In a nutshell, HF655 presents a list of 13 things that a local government cannot do when presented an application for a wireless facility.  Straight from the bill, the list of 13 things that a local government cannot do:

  1. Require an applicant to submit information about, or evaluate an applicant’s business decisions with respect to, the applicant’s designed service, customer demand for service, or quality of the applicant’s service to or from a particular area or site.
  2. a. Evaluate an application based on the availability of other potential locations for the placement or construction of a tower or transmission equipment. b. Require the applicant to establish other options for collocation instead of the construction of a new tower or modification of an existing tower or existing base station that constitutes a substantial change to an existing tower or existing base station. c. Notwithstanding paragraph “b” , an authority may require an applicant applying for the construction of a new tower to state in its application that it conducted an analysis of available collocation opportunities on existing towers or existing base stations within the same search ring defined by the applicant solely for the purpose of confirming that the applicant undertook such analysis.
  3. Dictate the type of transmission equipment or technology to be used by the applicant or discriminate between different types of infrastructure or technology.
  4. a. Require the removal of existing towers, base stations, or transmission equipment, wherever located, as a condition to approval of an application. b. Notwithstanding paragraph “a” , the authority may adopt reasonable rules regarding removal of abandoned towers or transmission equipment.
  5. Impose environmental testing, sampling, or monitoring requirements, or other compliance measures, for radio frequency emissions from transmission equipment that are categorically excluded under the federal communications commission’s rules for radio frequency emissions pursuant to 47 C.F.R. §1.1307(b)(1). 
  6. Establish or enforce regulations or procedures for radio frequency signal strength or the adequacy of service quality.
  7. Reject an application, in whole or in part, based on perceived or alleged environmental effects of radio frequency emissions, as provided in 47 U.S.C. §332(c)(7)(B)(iv). 
  8. Prohibit the placement of emergency power systems that comply with federal and state environmental requirements. 
  9. Charge an application fee, consulting fee, or other fee associated with the submission, review, processing, or approval of an application that is not required for similar types of commercial development within the authority’s jurisdiction. Fees imposed by an authority or by a third-party entity providing review or technical consultation to the authority shall be based on actual, direct, and reasonable administrative costs incurred for the review, processing, and approval of an application. In no case shall total charges and fees exceed five hundred dollars for an eligible facilities request or three thousand dollars for an application for a new tower, for the initial placement or installation of transmission equipment on a wireless support structure, for a modification of an existing tower or existing base station that constitutes a substantial change to an existing tower or base station, or anyother application to construct or place transmission equipment that does not constitute an eligible facilities request. An authority or any third-party entity shall not include within its charges any travel expenses incurred in the review of an application, and an applicant shall not be required to pay or reimburse an authority for consultant or other third-party fees based on a contingency or result-based arrangement. 
  10. Impose surety requirements, including bonds, escrow deposits, letters of credit, or any other type of financial surety, to ensure that abandoned or unused towers or transmission equipment can be removed unless the authority imposes similar requirements on other applicants for other types of commercial development or land uses. If surety requirements are imposed, the requirements must be competitively neutral, nondiscriminatory, reasonable in amount, and commensurate with the historical record for local facilities and structures that are abandoned. 
  11. Condition the approval of an application on the applicant’s agreement to provide space on or near the tower, base station, or wireless support structure for authority or local governmental or nongovernmental services at less than the market rate for such space or to provide other services via the structure or facilities at less than the market rate for such services. 
  12. Limit the duration of the approval of an application, except that construction of the approved structure or facilities shall be commenced within two years of final approval, including the disposition of any appeals, and diligently pursued to completion. 
  13. Discriminate on the basis of the ownership, including ownership by the authority, of any property, structure, or tower when promulgating rules or procedures for siting wireless facilities or for evaluating applications.

Tomorrow’s post will look at other parts of HF655.

Legislative update 5/11, thanks in major part to Iowa League of Cities

I am shamelessly co-opting a good portion of the Friday legislative update from Robert Palmer and the Iowa League of Cities’ for this post regarding the progress of TIF legislation and cell tower siting.

An amendment to HF628, the bill that impacts Iowa’s Urban Renewal law, was filed online last week. The amendment removes the language related to ratcheting up by 7.5 percent the bases of TIF districts that do not currently have a sunset until no increment remains and replaces it with new language that would:

  • Make changes to the definition of “blighted area” under Code Section 403.17;
  • Set a sunset for pre-1995 economic development TIF districts in year 2035 and all future economic development TIF districts would continue to have a 20-year limitation, which is current law;
  • Set a sunset in year 2040 for any current slum and blight TIF district and all future TIF districts formed for slum and blight would be limited to 25 years, which is a change from no current time limitation to these districts;
  • Allow the Department of Management to make rules to implement the new limitations.

The bill still creates a reporting requirement for the Legislative Services Agency to separate out the total TIF debt from annual TIF debt on the existing forms in a report to legislators and would prohibit TIF from being utilized on future public buildings.

HF655, the “Iowa Cell Siting Act,” passed out of the House on Thursday morning with an amendment by a vote of 59-39. The goal of this bill is to provide a standard set of regulations in relation to wireless broadband deployment. It prohibits cities and counties from considering several important factors in making their determinations on the siting of new cell towers.  House Chamber Rules were suspended to allow Amendment H-1336 to be attached to HF655. The amended bill attaches the flood mitigation language that was originally removed from the Iowa Economic Development Authority Omnibus bill in the House Ways & Means Committee. The flood mitigation portion affects the cities in the Des Moines metropolitan area.

Iowa legislative update 5/4

HF557 amending the requirements for establishing, financing, and dissolving Rural Improvement Zones, has been succeeded by HF615.  HF615 passed the Senate on April 29 by 49-0 vote.

HF556 – The Iowa Cell Siting Act – is now succeeded by HF655.  It will likely be brought up for debate soon.

HF 619 addresses the use of eminent domain authority for creating lakes for drinking water sources.

HF 628 would make several modifications to Iowa’s urban renewal law by modifying requirements for the annual report prepared by the legislative services agency, establishing restrictions on the use of divided revenues, and modifying the methodology for calculating the amount of divided revenues.

Iowa legislative update, 4/28

The land use related activity seems to have narrowed to a few bills.

Cell towersHF556 passed out of the House Ways and Means Committee with a 14-9 vote.  It would provide a uniform set of regulations for the approval of new towers by local governments, thus preempting local zoning on several issues.  The FCC ruling issued last fall (blogposts here) addressed collocation of facilities and substantial modifications to existing facilities.  This legislation is primarily directed at new tower siting, and would provide standard definitions, uniform application standards and a streamlined process.

Abandoned nuisance properties:  The sections addressing abandoned nuisance properties and flood mitigation were stripped out of HF385.  before passing out of the House Ways and Means Committee.

Eminent DomainSF449, a bill relating to procedures and requirements for condemning property and disposing of certain condemned property, passed out of the House 92-3.  It previously passed out of the Senate 50-0. The bill specifies that the authority to condemn property is not conferred on an acquiring agency unless the governing body for the acquiring agency first approves a preliminary or final route or site location of the proposed public improvement.

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