Update: Johnson County Re-Zoning Application Goes Viral

by Eric Christianson

The Johnson County Board of Supervisors voted 5-0 Thursday, September 14, 2017 to deny the rezoning of 63 acres from Agricultural to Agricultural Residential. The board’s primary reasoning was the potential impact of such a large rezoning in a rural part of the county and the impossibility of negotiating a conditional rezoning without approval of the current title-holder. The board encouraged another application after the applicant obtains full ownership of the property.

A video of the board meeting is available here, and read an updated Press Citizen article here.

The original post is below:

An Iowa City resident’s attempt to rezone 63 acres of rural Johnson County has attracted international attention. Grant Schultz manages a 143 acre farm he calls Versaland in northeastern Johnson County. He is seeking the zoning change to allow him to build rental cabins and worker housing in addition to other accessory uses. Staff recommended against the rezoning because of the potential impact of a large land use change in a rural part of the county and the infrastructural improvements that would be needed to support the potential new uses. On August 14 the planning and zoning commission voted 5-0 to recommend to the board of supervisors that the rezoning be denied.

In response on September 8, Schultz created a 25 minute video with the headline “Johnson County Assaults Local Foods“. The video has, as of today, been viewed over 80,000 times and received comments of support from all over the world.

Johnson County has since published a memo refuting many of the points made in the video.

Additionally, Paul Durrenberger and Suzan Erem, founders of the Sustainable Iowa Land Trust, and owners of the property in question have published a blog post of their own entitled, “Grant Schultz: Facts to Consider”. They are opposed to the proposed rezoning.

The Johnson County Board of Supervisors will vote on the rezoning request Thursday September 14, 2017.

For more information read the Press Citizen article about the fight.

Field of Dreams site cleared for development of baseball complex and tourist attraction

by Gary Taylor

Residential and Agricultural Advisory Committee, LLC et al. v. Dyersville City Council
Iowa Supreme Court, December 9, 2016

The Dyersville City Council voted to rezone the area containing the site of the 1989 movie Field of Dreams from A-1 Agricultural to C-2 Commercial in order to facilitate the development of a  a 24-field baseball and softball complex, along with the farmhouse and original baseball field used for the movie which would continue to be maintained as a tourist attraction. Community members filed two writs of certiorari to challenge the rezoning on a number of grounds.  The District Court annulled the writs and found in favor of the city council.  This appeal followed.  The Iowa Supreme Court engaged in a 20-page recitation of the facts of the case on its way to its 44-page decision.  Only those relevant to the outcome of each challenge will be repeated here.

Quasi-judicial vs. legislative action.  The petitioners argued that the city council’s actions were quasi-judicial in nature rather than legislative, and therefore the council should have been required to conduct a more formal fact-finding proceeding and make findings of fact in support of its decision.  Quasi-judicial proceedings are also subject to greater judicial scrutiny when reviewed by an appellate court.  Petitioners relied on the Iowa Supreme Court’s decision in Sutton v. Dubuque City Council in support of their position. In contrast, the city council maintained that the action of  a legislative body in rezoning land is legislative in nature, which gives the legislative body wider latitude in the conduct of the proceedings.  Courts also give greater deference to legislative decisions made by city councils and county boards of supervisors.

In ruling on this issue the Iowa Supreme Court reviewed Sutton and several other past cases.  It recognized that in its Sutton decision the Court set forth three factors in determining whether zoning activities are quasi-judicial (versus legislative) in nature (1) [when the rezoning] occurs in response to a citizen application followed by a statutorily mandated public hearing; (2) [when] as a result of such applications, readily identifiable proponents and opponents weigh in on the process; and (3) the decision is localized in its application affecting a particular group of citizens more acutely than the public at large.   Recognizing that the Court “cited these factors with approval” in Sutton, it noted that at the time it chose not to hold that all public zoning hearings should be classified as adjudicatory.  It stated:

The Sutton Case dealt with a different situation than many of our previous zoning cases because it involved PUD zoning.  We noted the ‘quasi-judicial character of municipal rezoning is particularly evident in matters involving PUD zoning.’  We discussed the distinction between traditional rezoning and PUD zoning:

Creating zoning districts and rezoning land are legislative actions, and…trial courts are not permitted to sit as ‘super zoning boards’ and overturn a board’s legislative efforts….The [PUD] concept varies from the traditional concept of zoning classifications.  It permits a flexible approach to the regulation of land uses. Compliance must be measured against certain stated standards….Since the board was called upon to review an interpretation and application of a n ordinance…and the ordinance was not challenged per se, the board’s decision was ‘clearly quasi-judicial’.

Rather than follow Sutton, the Court found the present case to be “much more analogous” to the case of Montgomery v. Bremer County Board of Supervisors.  In Montgomery, the county Board rezoned two parcels of land from agricultural to industrial after two rezoning petitions were filed.  In Montgomery, the Court found that the zoning decision of the supervisors was “an exercise of its delegated police power,” and held that “the generally limited scope of review applicable to the case [was] to determine whether the decision by the Board to rezone [was] fairly debatable.”   In making the analogy, the Court observed:

The city council [in the present case] was acting in a legislative function in furtherance of its delegated police powers.  The council was not sitting ‘to determine adjudicative facts to decide the legal rights, privileges or duties of a particular party based on that party’s particular circumstances.  The [decision] was not undertaken to weigh the legal rights of one party (the All-Star Ballpark Heaven) versus another party (the petitioners).  The council weighed all of the information, reports, and comments available to it in order to determine whether rezoning was in the best interest of the city as a whole.

The Court held that the proper standard of review “in this case is the generally limited scope of review” utilized to “determine whether the decision…is fairly debatable.”  A decision is “fairly debatable” when “reasonable minds may differ, or where the evidence provides a basis for a fair difference of opinion as to its application to a particular property.”  If a rezoning decision is “fairly debatable” then a court will decline to substitute its judgment for that of the city council or board of supervisors.

Impartiality of the city council.  The Court noted that, while it was true that several council members viewed the rezoning and the project as an opportunity for the city, each council member attended all meetings, read reports, listened to citizens speak for and against the project, asked questions, and investigated issues and concerns.  Nothing in the record demonstrated that any council member had any conflict of interest.  Several members participated in an economic development bus trip to Des Moines to discuss the project with legislators and state officials, but the Court found that mere participation in such activities for the potential benefit of the city does not establish partiality or bias. “Rather, this is more akin to the council members upholding their public duty by performing their due diligence in determining what state aid might be available to help with the project before any formal action was taken.  The council make its decision based on what it believed was best for the community after a full and open discussion of the issues over many months.”

Decision was arbitrary, capricious, unreasonable. A decision is arbitrary, capricious, or unreasonable when it is not authorized by statute, or is unsupported by the facts.  For the reasons cited above, the Court declined to find in favor of the petitioners on these grounds.

Inconsistent with comprehensive plan.  Under Iowa Code 414.3, zoning regulations “shall be made in accordance with a comprehensive plan.”  The Court referred to its prior decision in Iowa Coal Mining Co. v. Monroe County for the principle that “compliance with the comprehensive plan requirement merely means that the zoning authorities have given ‘full consideration the problem presented, including the needs of the public, changing conditions, and the similarity of other land in the same area.'”  The Court referred to the boilerplate language found in every plan that says rezonings should be made with consideration of the unique character of the area, the suitability of the land for the proposed use, the conservation of buildings or value, and the encouragement of the most appropriate use of the land.  It noted that the Field of Dreams site is a unique parcel of land, and that the council considered the distinctiveness of the land and whether the proposed rezoning would be the best use of the site for the benefit of the community as a whole.  The city’s community builder plan also specifically addresses the importance of preserving the site in order to maintain and increase tourism.

Illegal spot zoning. To determine whether illegal spot zoning has occurred, a court must consider (1) whether the new zoning is germane to an object within the police power; (2) whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property; and (3) whether the rezoning is consistent with the comprehensive plan.  Noting again the uniqueness of the Field of Dreams site, the Court refused to find this to be a case of illegal spot zoning even though the result is an island of commercial development surrounded by agriculturally zoned properties.

200-foot buffer zone.  Under Iowa Code 414.5, if 20% or more of the landowners immediately adjacent to the property proposed to be rezoned protest the change, then the city council must approve the rezoning by a four-fifths vote.  The rezoning applicants left out of the rezoning request a 200-foot buffer zone along the three sides of the perimeter of the property  (leaving it as A-1 Agricultural).  The petitioners challenged the use of this 200-foot buffer as a way to prevent nearby property owners from objecting to the project and thereby triggering the requirement of a unanimous vote.  While the Court acknowledged that “at first blush the buffer zone can appear to be unfair,” the Court concluded that the buffer in fact provides a benefit to adjacent landowners by addressing their expressed concerns about hunting and farming operations directly adjacent to the ballfields.  The Court also noted that other courts have validated the use of buffer zones to avoid supermajority requirements.  Regardless, even if the 200-foot buffer was improper, the rezoning was adopted by 4-1 vote of the city council.

Incorrect legal description.  While the notice of the original ordinance (Ordinance 770) contained errors in the legal description, the council corrected the legal description in the ordinance that ultimately rezoned the property (Ordinance 777).  No new notices were published, however, for Ordinance 777.  The Court does not require complete accuracy when providing notice.  Neither Iowa Code nor the city ordinances require the publication of a complete legal description.  The purpose of the notice requirement is to give the public reasonable notice of the pending action.  The public was well aware of the ongoing proceedings, and no one was confused or misled by the inaccuracy of the legal description.

Equal Protection.  Petitioners argued that all neighboring landowners were similarly situated, yet the 3-sided 200-foot buffer prevented those neighbors along the buffer from exercising the same right to object as the neighbors along the side of the property without the buffer.  The Court found that the council’s decision met the rational basis test required by the Equal Protection clause in this case.  The buffers, as described above, served a legitimate purpose of protecting the neighboring properties on the three sides.

Due Process.  Petitioners and the public in general were given adequate notice.  Further, they were heard in multiple public hearings.  All community members wishing to speak were allowed to do so.

Based on all preceding points, the Iowa Supreme Court affirmed the rezoning of the Field of Dreams property.

Agland preservation district statutes not relevant to rezoning application. No conflicts of interest found, either

by Gary Taylor

Miller v. Grundy County Board of Supervisors and MidAmerican Energy
Iowa Court of Appeals, April 22, 2015

In August 2013 MidAmerican Energy requested to rezone approximately 1,200 acres in Grundy County, Iowa from A-1 Agricultural to A-2 Agricultural.  MidAmerican had “Wind Farm Option Agreements” on the acres to be rezoned, and A-2 zoning would allow MidAmerican to place larger wind turbines on the land than those that would be permitted by A-1.  The Grundy County Planning and Zoning Commission voted 6-1 to recommend denial of the request at its September 2013 meeting; however, the Grundy County Board of Supervisors went against this recommendation and voted 4-0 to approve the rezoning at its meeting later the same month (one supervisor recused himself due to a conflict of interest).   Susan Miller, a nearby landowner, appealed the decision to district court, where the appeal was dismissed.  Miller then appealed to the Iowa Court of Appeals.

Miller’s first issue on appeal was that the Board of Supervisors acted illegally because it failed to comply with the requirements of Iowa Code 352.6, which requires supervisors to make specific findings before permitting non-agricultural uses in an “agricultural area.”   Chapter 352 authorizes the creation of agricultural preservation districts.  It does not address county zoning as enabled through Chapter 335 of the Iowa Code.  The Court of Appeals summarily stated that Chapter 352 is inapplicable in this case because “there is no evidence in the record that the Grundy County Board of Supervisors has ever designated any of the land involved in the zoning amendment as an ‘agricultural area'” as it is meant in Chapter 352.  “Nor, for that matter, is there any evidence in the record that any owner of any of that land has ever consented to the owner’s land being included in an area designated as an ‘agricultural area.'”  Simply zoning land as A-1 Agricultural does not of itself create or expand an “agricultural area” as defined in Chapter 352.

Miller’s second issue was that two of the supervisors who voted for the rezoning had conflicts of interest that required their recusal.  Citing Bluffs Development Co. v. Pottawattamie County Board of Adjustment the court noted that proof of a conflict of interest must be “direct, definite, capable of demonstration, not remote, uncertain, contingent, unsubstantial, or merely speculative or theoretical.”  One of the supervisors called out by Miller owns the AmericInn motel, which offers discounted rates to wind energy officials who stay there.  The court found that Miller was unable to offer evidence that any discounts received by wind energy officials were different than discounts available to anyone else staying there.  Without that evidence, or other evidence that the supervisor’s vote was significantly influenced by a pecuniary interest Miller’s claim failed as to the first supervisor.

The second supervisor has multiple relatives that own lands subject to “Wind Farm Option Agreements” with MidAmerican Energy; however, none of those lands were the subject of the 2013 rezoning request, and so the court concluded that any advantages to the supervisor or his relatives were “uncertain, speculative, and remote.”

The Court of Appeals affirmed the district court’s dismissal of Miller’s claims.

MI Court of Appeals interprets MZEA provisions regarding appeal of site plan approval

by Hannah Dankbar

Julie Visser Trust v. City of Wyoming
(Michigan Court of Appeals, October 30, 2014)

In July 2012 the City of Wyoming rezoned a parcel of land from R-1, single family residential, to R-4, multifamily residential so John Lee Koetje, Koetje Investors Limited Partnership, and Koetje Investors-Chateau Limited Partnership could construct Phase 4 of Chateau Village Apartments.  Phases 1-3 of the project border the rezoned property. Visser Trust owns property zoned R-1 in Chateau Estates, due South of the property in question. In December 2012 after the rezoning, the Wyoming City Planning Commission approved Koetje’s revised site plan for construction. Visser Trust challenged (1) the site plan approval, and (2) the rezoning approval, and further raised issues concerning (3) an alleged Freedom of Information Act violation, (4) an illegal contract rezoning, and (%) a violation of negative restrictive covenants.  In July 2013 the trail court dismissed all counts, and Visser Trust appealed to the Michigan Court of Appeals.

Site plan. The trial court cited MCR 7.112(B) and said that because the plaintiff filed a complaint, and not an appeal of the planning commission’s site plan approval, the time for Visser Trust to object had passed. The Court of Appeals disagreed. The Michigan Zoning Enabling Act (MZEA) does not specifically address whether and how an interested party may challenge the approval or denial of a site plan. There is no statutory provision that requires the plaintiff to challenge the Planning Commission’s approval of the site plan in a specific manner, as opposed to a general civil complaint. The trial court therefore erred in dismissing this part of Visser Trust’s lawsuit.

Rezoning. The plaintiff argues that the rezoning was invalid, contending that after Koetje added nine conditions to its voluntary offer of conditions , the entire application should have gone back through the Planning Commission for an additional public hearing and recommendation.  The Court of Appeals rejected this argument.  The MZEA says the legislative body may refer any proposed amendments to the zoning commission for consideration and comment.  The word “may” indicates that the city council was not required to send the revisions back to the Planning Commission.

Contract zoning.  The plaintiff also argues that the rezoning was illegal “contract zoning”. MCL 125.3405 permits local governments to “approve rezoning subject to voluntary conditions offered by a landowner,” and lists several criteria for distinguishing between a legal voluntary offer and illegal contract zoning. Plaintiff submitted a letter from Koetje’s engineer regarding the rezoning, wherein Stalsonburg wrote that Wyoming “desires to accomplish this as ‘contract rezoning.’” Plaintiff argues that the letter supports the inference that Wyoming engaged in illegal contract zoning. Apart from the use of the phrase “contract rezoning” in the letter, however, plaintiff did not produce any any evidence that Wyoming required Koetje to agree to certain conditions.  The Court of Appeals affirmed the trial court’s dismissal of this count.

FOIA. Plaintiff argues that the trial court erred in dismissing its FOIA claim. Donald Visser submitted a FOIA request, but did not identify for whom the documents were being requested. The plaintiff referenced Donald Visser’s request in the complaint, but the trial court noted that plaintiff neither submitted the FOIA request, nor was the request submitted on plaintiff’s behalf. The plaintiff therefore did not have standing to bring a FOIA complaint.

Negative restrictive covenants. Plaintiff alleged that the subject property was at one time part of a larger parcel that contained the same restrictions as lots in the Chateau Estates—i.e. restricted to single-family development. The trial court found this accusation vague and unclear, and that plaintiff failed to produce any documentary evidence to prove this allegation.

“The essential elements of a reciprocal negative easement are: (1) a common grantor; (2) a general plan; and (3) restrictive covenants running with the land in accordance with the plan and within the plan area in deeds granted by the common grantor.”  The Court of Appeals affirmed the trial court’s findings that the questioned property was not part of the same development as the plaintiff’s property, and that the court was not able to find any documentation to support a contrary conclusion.

The trial court erred in determining that it did not have jurisdiction to hear plaintiff’s challenge to the site plan approval, but was affirmed in all other respects.

 

 

 

Appellant in rezoning denial cannot turn appeal into inverse condemnation action

by Gary Taylor

Dahm v. Stark County Board of County Commissioners
(North Dakota Supreme Court, December 19, 2013)

Richard Dahm submitted an application to the County Board for a rezoning to change his property designation from agricultural to residential. Dahm also sought approval of a preliminary plat called Duck Creek Estates, a 99 lot residential subdivision to “provide a rural living environment in a quasi-urban setting . . . .” The land is two miles west of the Dickinson city limits, and located in between Interstate-94 to the north and Highway 10 to the south. The property is adjacent to a previously platted subdivision called Maryville Subdivision.  Two public hearings were held before the Planning and Zoning Commission. At the first hearing, the city/county planner recommended denial based on several alleged deficiencies, including: Dahm did not specify which residential district he wanted to rezone his property to; there was no contract with adjacent land owners ensuring access to Highway 10; the application did not indicate whether road and access widths would meet or exceed Stark County regulations; the application did not indicate what type of bridge would overpass Duck Creek; the application did not delineate the location of wetlands or flood plains or include a flood plain analysis and environmental study; development could result in “pinching” the water flow of Duck Creek; and no potable water was available at the site. The planner also found the application was inconsistent with the Stark County Comprehensive Plan.

Rather than making a formal recommendation to the County Board, the Zoning Commission continued the hearing to allow Dahm to revise his application. Dahm submitted additional information, including a letter responding to the deficiencies, a development narrative, an application package addendum, and proposed zoning maps. The Southwestern District Health Unit also submitted a letter stating that Dahm’s plans for a sewer system were satisfactory. Prior to the second public hearing, the city/county planner again recommended denying Dahm’s application based on several deficiencies, including: the lack of a traffic impact analysis; road access did not meet Stark County standards; the application did not include the location of wetlands and flood plains; the absence of a flood plain elevation study to ascertain whether the project met the requirements of the National Flood Insurance Program and state law; the absence of a field wetland delineation for use during U.S. Army Corps of Engineers 404 Permit Process; no potable water; and that the application was inconsistent with the Stark County Comprehensive Plan.

At the second public hearing, Dahm’s attorney stated that an adjacent landowner agreed to provide highway access, on the condition that the adjacent owner’s property could also be re-zoned. Dahm’s attorney also claimed traffic density would be about 925 vehicles per day. Members of the neighboring Maryville subdivision voiced their opposition to the application based on concern over traffic and dust control. The planner also spoke in opposition to the application. Members of the Planning and Zoning Commission reiterated their trepidation about traffic access points, increased traffic density, and the lack of a study concerning the wetlands and flood plains. Based on these concerns, the Zoning Commission voted 8-0 to recommend a denial of the zoning amendment request.  The County Board adopted the recommendation of the Zoning Commission and denied Dahm’s request by a vote of 5-0. In voting to deny the application the County Board also included a provision that Dahm could not appear before the County Board for six months.

Dahm appealed the County Board’s decision to the district court and also sought to introduce evidence of similar zoning requests that had been previously approved by the County Board. The court denied Dahm’s motion to submit additional evidence and affirmed the County Board’s decision to deny the application for zoning change.  Dahm appealed to the North Dakota Supreme Court.

The Court first noted that in framing its zoning decisions, the Zoning Committee and County Board looked to the Stark County Comprehensive Plan, a growth management policy amended in 2010 based on the county’s rapid growth in the agricultural and energy sectors. In its official recommendation, the Zoning Commission stated “there continues to be concerns with density, traffic, and sewer and water issues for residential development of the property.” Additionally, the Zoning Commission determined the application was inconsistent with at least four goals of the Comprehensive Plan related to compatibility of environmental characteristics of the site, adequacy of sewer and water services, the preservation of open spaces and natural resources, and the prohibition against locating development away from paved roads. The Court concluded that the procedure followed by the county “characterizes an exercise of discretion” that is “the product of a rational mental process by which the facts and the law relied upon are considered together . . . .”

Dahm also argued that when a subdivision plat addresses all issues listed in a county’s subdivision regulations it becomes the “mandatory duty” of the zoning authority to approve a subdivision plat.  The Court disagreed, stating that “The board shall consider all other relevant facts and determine whether the public interest will be served by the subdivision. . . . If it finds that the proposed plat does not make appropriate provisions, or that the public use and interest will not be served . . . then the board of county commissioners shall disapprove the proposed plat.”  The Zoning Commission and the County Board did take into account such factors as open spaces, drainage, streets, water supplies, and waste disposal, in addition to other considerations, in denying the application. Because it found Dahm’s application was at odds with the Comprehensive Plan, it was under no duty to approve the request.

Finally, Dahm argued the six-month restriction from appearing before the County Board was not only arbitrary, capricious, and unreasonable, it was also unconstitutional because a new ordinance (increasing minimum lot sizes from 7,000 square feet to 5 acres) was passed during the six-month prohibition period.  Because Dahm purchased the property in reliance on the original ordinance and subdivision regulations, the County Board’s denial deprived Dahm of all reasonable use of the property.  The Court stated that the moving party in a denial of a change in zoning request cannot turn his appeal into an inverse condemnation action, and declined to address Dahm’s claim of an unconstitutional taking of his property. It found that the decision to implement a six-month appearance restriction was also not arbitrary, capricious, or unreasonable.  The Board noted that Dahm had presented the Duck Creek Estates project three months in a row without adequately resolving the issues of roads, sewage, water, and population density. As the district court reasoned, “the time and effort expended by the Stark County Zoning Board, the City and County Planner, and by the Stark County Commission persuades the Court that there was no violation of Stark County’s authority and obligation to regulate land use . . . by their decision to impose the six month prohibition.” Given the repeated attempts to re-zone and the failure to make the requisite adjustments, it was not unreasonable for the County Board to implement a six-month wait period.

Conditional rezoning agreement limits processing and retail sales to deer season

by Kaitlin Heinen and Gary Taylor

Patricia D. and Michael P. Fowler v. Muscatine County Board of Supervisors
(Iowa Court of Appeals, October 23, 2013)

Patricia and Michael Fowler asked the Muscatine County Zoning Commission to rezone their property from A-1 agricultural to C-1 commercial, to permit the operation of a seasonal deer processing facility and retail counter. The Fowlers executed an agreement that restricted the property’s use to “[o]nly wild game processing….[r]etail products in the wild game category…and supporting wild game products….” This agreement included a description of “Steve’s Meat Shop” and its products. Once executed, the commission recommended that the Muscatine County Board of Supervisors approve the zoning request, which the board did, passing an ordinance that rezoned the Fowlers’ property accordingly.

The Fowlers petitioned to have their property rezoned again to “add service of ready-to-eat food,” such as hot sandwiches. The commission recommended that the board deny this request; the board did so. The Fowlers sought to annul and vacate the board’s denial of their application in district court. The board resisted, and additionally argued that retail services could only be offered seasonally. The district court allowed the retail services to be conducted year-round, but denied the Fowlers’ request to include “ready-to-eat foods” or a “deli shop.” Both the Fowlers and the board appealed to the Iowa Court of Appeals.

The issues before the court in this case include: “(1) whether an ordinance that rezoned certain agricultural property to a commercial classification authorized the operation of a year-round retail establishment and (2) whether the retail establishment could sell ready-to-eat foods.”

The court initially observed that if an “ordinance is plain and its meaning is clear,” the court cannot search for meaning beyond those express terms. However, if the “ordinance is ambiguous, it is appropriate to apply the general rules of construction for statutes.” The board argued the “conditional rezoning agreement contains ‘no reference to year-round retail service,’” so the district court erred in the absence of such words to interpret. The Fowlers countered that the conditional rezoning agreement contains no time restrictions for the retail services, so the district court correctly concluded that they could operate year-round.

Both parties rely on the preamble of the ordinance—“the Property is…to be used as a seasonal deer processing and retail service.” The board argued “the term ‘seasonal’ ‘unambiguously and undeniably places limits on the privileges conferred by the spot zoning.’” The Fowlers countered the term “requires deer processing to occur on a seasonal basis but does not limit ‘retail service.’” The court reasoned that these competing arguments in regards to the term “seasonal” meant that there was ambiguity in the ordinance.

When confronted with an ambiguity, we may consider, among other factors: (1) the object sought to be attained (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) the common law or former statutory provisions, (5) the consequences of a particular construction, (6) the administrative construction of the statute, and (7) the preamble or statement of policy.

The court examined the circumstances surrounding the ordinance’s passage. “At the first meeting with the zoning commission, Michael Fowler explained his reasoning for his rezoning request as follows: ‘[W]hat we’d like to do is to have a seasonal deer processing. We’d like to have a small retail counter that would just be open between October and January.’” Further, when asked whether the retail services would only be open during that period, he replied, “Yeah, deer season.” This resolves the ambiguity of the term “seasonal,” and thus the court concluded the Fowlers’ retail services were to operate seasonally. The court reversed the district court’s judgment in this part.

As for the second issue, the Fowlers argued the court erred in concluding they could not sell ready-to-eat foods at their retail counter. They contended that “retail service” encompasses the sale of ready-to-eat foods. However, the conditional rezoning agreement authorizes them to “prepare products for resale.” The court agreed with the district court that the conditional rezoning agreement did not authorize the sale of deli-style sandwiches that could not “be considered wild game specialty items.” In his statements to the zoning commission, “Michael Fowler stated that the retail store would be limited to wild game, ‘nothing domestic, like beef or pork.’” In addition, “Patricia Fowler explained that deer meat would be bought from a farmer and then sold to the customers.” These statements conclude that the retail service does not encompass ready-to-eat foods. The court affirmed the district court’s judgment in this part.

County’s actions did not constitute a taking: The continuing saga of Francis v. Bremer County

by Gary Taylor

J.D. Francis, Inc. v. Bremer County Board of Supervisors
(Iowa Court of Appeals, January 9, 2013)

Prior history of this case was discussed in this blog here.  The present case includes some interesting facts about the dispute not disclosed in the prior opinion from 2009, namely:

On June 20, 2006, Anhalt and Francis requested the land be rezoned to “R-1” single-family residential. The 34.5 acres had an average corn suitability rating (CSR) of 53.60, a rating that classified it as “prime” agricultural land that should be preserved for agricultural use under the Comprehensive Land Use Plan (CLUP). Following a public hearing, the Bremer County Planning and Zoning Commission unanimously recommended denial of the rezoning request….[and] the board of supervisors voted unanimously to deny the request, finding “that good agricultural farm land not be taken out of production and because of many other environmental concerns….The following day, Francis and Anhalt submitted a revised rezoning request, which excluded approximately four acres of productive farmland included in the original request. Excluding those acres dropped the CSR of the remaining 30.75 acres to 49.5. However, approximately half—or 15.46 acres—of that parcel had a CSR of fifty or higher….[On this request] the commission voted four to one to deny [and the] board of supervisors voted unanimously to deny.

More background.  In December 2009, after the Iowa Court of Appeals issued the decision linked above, the board of supervisors amended its CLUP to exclude planned residential developments on certain designated land. Francis’s property was included in this redesignation. Francis filed an action in the United States District Court for the Northern District of Iowa, alleging the board’s 2006 rezoning denials were an unconstitutional taking. He later amended his complaint to allege the December 2009 CLUP amendment was also an unconstitutional taking. The complaint was dismissed in March 2011 because the issue was not ripe for consideration; the court noted Francis had failed to seek compensation through state procedures by instituting an inverse condemnation action.

Present case.  On December 9, 2011, Francis filed the present case for inverse condemnation in state district court, alleging that the board’s denials of the rezoning request was arbitrary, and further that the CLUP amendment resulted in a taking of at least half of the value of the property in question without adequate compensation.  The court found the board was entitled to judgment as a matter of law because the board’s actions did not constitute a taking that requires compensation. Francis appealed.

The Court of Appeals first ruled that the doctrine of res judicata prevents J.D. Francis, Inc. from relitigating the issue of whether the board acted arbitrarily in denying its rezoning requests. The question of whether the board’s denial was arbitrary was litigated and decided by the district court when it granted summary judgment in favor of the board on Francis and Anhalt’s 2006 action. That ruling was later affirmed by the Court of Appeals.

As for the takings claim, the Court of Appeals observed that, unlike cases cited by Francis as supporting his claim, there was no rezoning that led to a diminution of value; rather, the board simply refused to rezone the land to increase its economic viability. Furthermore, the plaintiff purchased the land after the board denied both rezoning requests. Even the CLUP amendment, which occurred after purchase and limits the likelihood that the land will be rezoned to residential, does not amount to a taking. The property remains economically viable as agricultural land, just as it did prior to the plaintiff’s purchase. Under these circumstances, the Court of Appeals agreed with the district court’s finding that the board’s actions did not constitute a taking.

Monona County’s rezoning of property along Loess Hills Scenic Byway did not constitute illegal spot zoning

by Gary Taylor

Woodward and Johnson v. Monona County Board of Supervisors
(Iowa Court of Appeals, November 15, 2012)

Cory Bumann purchased 2.8 acres of land in rural Monona County with the intent of constructing a bar and restaurant to serve tourist traffic coming to enjoy the Loess Hills. The land is located at the corner of the paved county road L-20 – which is a segment of the Loess Hills Scenic Byway – and the gravel road 153rd Street. Across county road L-20 (approximately 1/2- to 3/4-mile away), but not accessible directly by L-20, is the Timber Ridge Winery and Vineyard, which is owned by other members of the Bumann family. Timber Ridge does not have a bar or restaurant, but serves breakfast for approximately 400 guests on the weekends in the summer.  Timber Ridge also bike and ATV trails, and a campground.  The land that is the subject of this litigation is connected to Timber Ridge, across L-20, by a dirt path.

Bumann requested rezoning of the land in question from agriculture to a classification that would allow for a bar and a restaurant.  The county planning and zoning commission was unable to reach a recommendation, and forwarded a “split recommendation” to the board of supervisors.  on May 25, 2010 the board of supervisors approved the rezoning request.  Woodward and Johnston (plaintiffs), area landowners, challenged the decision as a case of illegal spot zoning.  The district court agreed and invalidated the rezoning.  Monona County appealed the decision.

After noting that a board of supervisor’s decision regarding a rezoning carries with it a strong presumption of validity, the Court of Appeals reviewed the relevant Iowa caselaw pertaining to spot zoning:

Spot zoning occurs when an ordinance creates a small island of property with restrictions on its use that are different from those imposed on surrounding property…. While spot zoning is not favored, it is not automatically illegal…. Spot zoning is valid if it passes a three-pronged test.  The court must determine (1) whether the new zoning is germane to an object within the police power; (2) whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property; and (3) whether the rezoning is consistent with the comprehensive plan.

The district court found that the rezoning decision passed the first and third prongs, but failed the second.  The Court of Appeals confined its review to the second prong; plaintiffs did not challenge the district court’s conclusions with regard to the other two.

The Court of Appeals noted that to determine whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property it must look at several factors:

Size of spot zoned and uses of surrounding property.   The county zoning administrator testified that the closest commercially zoned property was two to five miles away. The land surrounding the property on all sides was zoned for agriculture, but Timber Ridge had a special use permit to allow recreational uses such as a private campground and dirt-bike riding.  Plaintiffs land was farmland and timberland, but the county comprehensive plan did not identify the Loess Hills region as prime agricultural land.  One county supervisor testified that Timber Ridge at one time had a restaurant and bar that has since closed down.  Another supervisor testified that he considered the rezoned property and Timber Ridge to be similar in that they were gathering places.

Changing conditions of the area.  It was unclear from evidence at trial whether the extensive tourism promotion of the Loess Hills region was a recent occurrence, but the comprehensive plan specifically designating the Loess Hills as such was adopted in 2007.  L-20 had been paved for 20-25 years, and Timber ridge had been located in the area for much longer than that.

Uses to which subject property has been put.  Plaintiffs testified that the land in question previously had been used for row crops, but other testimony contradicted that.  It was recognized that the land was not prime agricultural land, but also that the site would have to be leveled for a bar to be constructed.

Suitability and adaptability for various uses.  County supervisors testified that the property’s location along the Scenic Byway on a paved road, its proximity to Timber Ridge, and favoring a location that was not prime agricultural land made this property suitable for a restaurant.

The district court found that the second prong was not satisfied because the paving of L-20 and the proximity to Timber Ridge were not recent occurrences, and that any land bordering L-20 would be equally suited for a restaurant and bar; however, the Court of Appeals pointed out that the district court is only to look to see if there has been a sufficient showing to reasonably support the board of supervisor’s judgment. The court is not to supersede the county’s discretion just because the court would reach a different conclusion.  Finding that there was a reasonable basis to support the county’s rezoning decision, the Court of Appeals reversed the district court.

City council corruption does not give rise to Constitutional claims in rezoning denial

by Kaitlin Heinen

EJS Properties, LLC v. City of Toledo; Robert McCloskey
(Federal 6th Circuit Court of Appeals, September 5, 2012)

In April of 2002, EJS Properties entered into a conditional agreement with Pilkington Corporation to purchase 20 acres of a 43-acre lot that Pilkington owned, which included a technical center that EJS intended to convert into a charter school. This agreement was expressly contingent on obtaining a zoning change from industrial to one that could contain a school. EJS also entered into a non-conditional lease agreement with Lake Erie Academy to open the charter school. In May 2002, EJS filed a re-zoning petition with the Toledo-Lucas County Plan Commission. The Plan Commission recommended the re-zoning and passed the request onto the Toledo City Council. The City Council’s Zoning and Planning Commission held a public hearing on July 17, 2002, where everyone agreed to re-zone only the portion of Pilkington’s lot that would be needed for the school. The Committee voted unanimously to recommend the request for full vote by the Council, which was placed on the City Council’s agenda for August 13, 2002. During this re-zoning process, EJS had obtained an early-start building permit to begin $200,000 worth of repairs and improvements on the technical center.

Prior to August 13, Pilkington executives John Keil and Randy Berg had a lunch meeting with City Council member Robert McCloskey, who represented the district containing the Pilkington lot. McCloskey asked Pilkington to donate $100,000 to assist local retirees at the community center—Keil and Berg declined. At the next council meeting, member Peter Gerken moved to table consideration of the re-zoning for two weeks. EJS claims that McCloskey lobbied the other members to reverse their vote, but when he could not get enough to defeat the measure, he asked Gerken to table the matter. (McCloskey was a former Pilkington union negotiator, who had helped negotiate a labor agreement that capped healthcare benefits for retirees, for which he faced significant criticism upon being elected to City Council.) McCloskey then proceeded to call Keil, Berg, and Erich Speckin, the owner of EJS, and left questionable voicemails that sought the money for the retirement center in connection with the pending re-zoning. On August 22, Keil sent a letter to all of the City Council members and Mayor, seeking support for the re-zoning request and to consider the unrelated issues between Pilkington and McCloskey: “Such issues have the potential for exploitation to the detriment of the zoning request.” Pilkington and EJS never reported McCloskey’s request to the police.

On August 27, 2002, the City Council voted 7-4 against re-zoning (4 members had changed their vote from committee, including McCloskey). Only one member testified that he had been approached by McCloskey, who discouraged voting for the ordinance. EJS did not appeal the denial. Two months later, Toledo voters passed a levy, mandating the building of two new middle schools on the east side of Toledo. Toledo Public Schools (TPS) won an eminent domain lawsuit against Pilkington in November 2003 for the entire 43-acre lot. The Plan Commission, the City Council’s Zoning and Planning Committee, and the City Council approved a re-zoning in January 2004 to build a TPS middle school there.

EJS filed a complaint against the City and McCloskey in May 2004 for deprivation of substantive and procedural due process, deprivation of equal protection, deprivation of its property rights and its First Amendment right to petition in violation of 42 U.S.C.A. §1983, and wrongful interference with a business expectation in violation of state law. The district court granted summary judgment to the City and McCloskey on EJS’ constitutional claims. The court denied McCloskey summary judgment on EJS’ tortious interference claim (the district court actually stayed legal proceedings at one point to see the outcome of McCloskey’s 2006 indictment on federal criminal corruption charges, for which he pleaded guilty and received a 27-month prison sentence). After first dismissing EJS’ appeal for jurisdictional reasons, EJS dropped the state-law claim for wrongful interference. Then the U.S. 6th Circuit Court was able to hear the case.

In arguing for the deprivation of substantive and procedural due process, EJS argues that it had property interests at stake in the ordinance for re-zoning, in its contracts, and in its early-start building permit. The City Council never approved the re-zoning ordinance; rather, the City’s Planning Commission and Committee did. The 6th Circuit found that the only way for EJS to have a property interest in the re-zoning ordinance then is if the City Council lacked the discretion to approve it. However, the Toledo Municipal Code’s use of the word ‘may,’ grants the City Council discretionary authority over zoning regulation. Therefore EJS had no property interest in the re-zoning ordinance. Absent a property interest, EJS had no recognizable rights subject to due process protections.  As for its contracts, EJS argues that the contract options created property interests subject to due process protections; however, the purchase agreement explicitly states that “prior to the Closing Date, [EJS] has no title or estate in the Property…and will not claim any such interest…over any part of the Property.” The contract was explicitly contingent upon obtaining a re-zoning for the property, which did not happen–therefore, EJS possesses no interest in the property as a result of its contract. Finally, in regards to the early-start building permit, the permit did not entitle EJS to a re-zoning change, and the improvement work done on the building was “performed at the applicant’s own risk,” according to Toledo Municipal Code.

EJS also argued that it possessed two liberty interests that were violated: 1) a liberty interest in a government decision free from corruption and 2) a liberty interest in engaging in business contracts without unlawful interference. As to the first claim, corruption only affects procedural due process, which EJS could not be deprived of since the court ruled that EJS never possessed a  property interest of any kind. The court rejected the second claim on the same grounds as its ruling on property interests in relation to EJS’ contracts, holding that the defendants did not interfere with EJS’ right to contract because the contracts were contingent on discretionary zoning.  Additionally, the Supreme Court of the United States has upheld only a short list of liberty interests, and the circuit court here could not find any support for a liberty interest in a discretionary government decision free from corruption or unlawful interference.

In addition, EJS argued that corrupt zoning decisions “shock the conscience” and violate substantive due process as a result, regardless of whether or not a property or liberty interest is at stake. However, the court dismissed this claim, stating, “Our prior precedent makes clear that in the context of a discretionary zoning decision, government action will not shock the conscience unless the arbitrary and capricious action touches on a protectable interest.” With neither a property nor a liberty interest at stake, EJS had no merits for this claim. Even if EJS had a property or liberty interest, the court reasoned that “although we can condemn McCloskey for his misconduct, we simply cannot say that his behavior is so shocking as to shake the foundations of this country,” which was the original purpose for establishing the “shocks the conscience” standard.

Finally, EJS’ last two claims involved its right to petition and its right to equal protection. The court conceded that seeking redress from a government official qualifies as petitioning, for which a zoning request also qualifies. Specifically in regards to its right to petition, EJS argued that its right to meaningful access was violated. The court countered that EJS was equating meaningful access with meaningful process. Process is associated with violations of substantive or procedural due process, which was already decided to not have occurred in this case because EJS lacked both a property and a liberty interest. As for equal protection, the court ruled that EJS and TPS were not similarly situated, which does not grant adequate merits for an equal protection claim. Unlike EJS, TPS owned the relevant property at the time of their re-zoning request. TPS also intended to use the entirety of the property rather than part of it. And TPS planned to build a financially stable public school rather than a private school. These are rational bases for the City Council to have treated EJS differently than TPS.

Having dismissed all of EJS’ constitutional claims, the U.S. 6th Circuit Court upheld the district court’s decision to grant summary judgment to the defendants.

Non-profit association has standing to challenge major North Dakota coal gasification facility; loses on merits

by Gary Taylor

Dakota Resource Council, et al. v. Stark County Board of County Commissioners
(North Dakota Supreme Court, June 7, 2012)

Great Northern planned to construct and operate a coal gasification facility on 8,100 acres of land in Stark County. Great Northern’s planned complex would include a coal gasification plant, chemical fertilizer plant, electrical power plant, coal mine, solid waste landfill, and facilities for manufacture and storage of hazardous, explosive, and odorous products. Great Northern submitted an application to the Stark County Zoning Commission (Commission) to change the zoning of the land from agricultural to industrial and to allow nine conditional uses of the land, including “[m]ineral and other substance exploration or excavation and mining [in] accordance with provisions of Sec. 6.10” of the Stark County Zoning Ordinance. The Commission scheduled a hearing and sent notice by certified mail to all persons who owned land within 200 feet of the boundaries of the proposed rezoned tract. Following the hearing, the Commission voted to recommend that the County Board of Supervisors (Board) approve the application, conditioned upon Great Northern obtaining all necessary local, state, and federal permits or approvals. The Board subsequently approved the application to rezone the property from agricultural to industrial and approved the requested conditional uses. The Board’s approval was subject to several express conditions, including a requirement that Great Northern “obtain all the necessary local, state and federal approvals, licenses and permits relative to the operation of the coal mine.”

The Dakota Resource Council (Council) is a membership-based non-profit corporation which, among other things, works for preservation of family farms, regulation of coal mining and oil and gas development, protection of ground water and clean air, and sound management of solid and toxic wastes. Neighbors United is an unincorporated association which promotes the protection of farming and ranching. The Council, Neighbors United, and several individuals who owned land near the rezoned tract appealed the Board’s decision to the district court. The district court initially determined that the Council, Neighbors United, and the individual landowners had standing to challenge the Board’s decision, but the district court affirmed on the merits the Board’s decision to rezone the property and allow the conditional uses.

The Council, Neighbors United, and landowners appealed.  The Board and Great Northern cross-appealed, arguing that the Council lacked standing to appeal the Board’s decision to the district court.

Standing.  The North Dakota Supreme Court noted at the outset that “standing is the concept used to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court.”  A not-for-profit association such as the Council that has not suffered an injury itself must satisfy a three-pronged test to demonstrate standing: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. In addition, a nonprofit membership corporation has standing to seek judicial review on behalf of its members, of governmental or municipal regulations directly affecting such members.  The Board and Great Northern challenged the Council’s standing only on the first prong of the test.  The Court affirmed the district court’s conclusion that the Council had standing in this case, at the same time acknowledging that it presented a “close question.” The Stark County Zoning Ordinance requires that, when a proposed amendment to the Zoning Ordinance and Map affects a property use, all property owners within 200 feet of the affected property must be notified of the hearing by personal service or certified or registered mail. In this case, the record demonstrated that at least two individuals identified as Council members received notice of the scheduled hearing from Stark County by certified mail because they owned property within 200 feet of the proposed rezoned tract.  The Court saw the notice requirement “effectively [as] a legislative determination that landowners within 200 feet of the proposed rezoned property have a significant, protectable interest in the Board’s decision whether to grant an application to rezone the property and permit requested conditional uses.  The notice requirement established that Kenneth Kudrna and Randall Kudrna’s property interests were affected by the Board’s decision in a manner different than that suffered by the public generally, and they were more than just an elector and resident taxpayer affected by the decision….We do not believe it can be seriously argued that an 8,100 acre industrial complex, including a coal gasification plant, chemical fertilizer plant, electrical power plant, coal mine, solid waste landfill, and facilities for manufacture and storage of hazardous, explosive, and odorous products, would not adversely affect the Kudrnas’ use and enjoyment of their respective properties located within 200 feet of the proposed complex.”

Rezoning decision.  The Council contended that the Board failed to correctly interpret and apply the Stark County Zoning Ordinance. The Court began this analysis by noting that although interpretation of an ordinance presents a question of law fully reviewable on appeal, the interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body.  The Council argued that Great Northern was required by the ordinance to submit all application materials necessary to apply for a land disturbance permit.  The Board disagreed.  The Court disagreed, as well.  The Board, construing its Zoning Ordinance in light of the facts presented in this case, concluded that the Zoning Ordinance allowed the Board to issue a conditional use permit for mining operations, subject to the requirement that Great Northern ultimately comply with another section of the ordinance and obtain a land disturbance permit before commencing any exploration, excavation, or mining activities on the property.  The Board viewed the granting of the conditional use permit as merely the first step in a lengthy and complex process, and its approval of the conditional use was contingent upon Great Northern complying with all of the enumerated special conditions imposed upon the conditional use permit.  The Court concluded that “this is a reasonable interpretation of the Zoning Ordinance, and we give deference to the Board’s interpretation and will not substitute our judgment for that of the Board.”

The district court decision was affirmed in all respects.

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