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.

Conditions in development agreement not enforceable as contractual promises

by Victoria Heldt

Button Realty, LLC, v. Charter Township of Commerce and Country Hills Development, LLC
(Michigan Court of Appeals, September 22, 2011)

In 2004, Button Realty entered into a purchase agreement with Country Hills Development for the sale of 34 acres of land.  The agreement provided that Country Hills purchase the property in order to build a single-family residential project with pressure sewer and public water.  It stated that Button would enter into a legitimate land contract once Country Hills obtained site approval from the Charter Township of Commerce (the township).   It further stated that Button must agree to the imposition of any special assessments in order to cover costs for installing the water/sewer system.  Country Hills petitioned the Township for the creation of a special assessment district (which included the property) in order to finance the extension of the public water system to the property.  The Township approved.  Subsequent to approval of the site plan, Button and Country Hills executed a land contract in accordance with the terms of the agreement.

Country Hills submitted an application to the township to rezone the property (as it was zoned “undeveloped” at the time) to allow the single-family residence to be constructed.  The Township agreed and entered into a development agreement with Country Hills.  As a condition of the rezoning, Country Hills was required to undertake certain actions (such as the construction of the residences and the installation of a water system) within 15 years of the date of the agreement or else the property would revert back to its original zoning classification.  The Township noted that Country Hills was not required to do these things, but that they were a condition of the rezoning.

Country Hills eventually defaulted on its land contract with Button and the property was transferred back to Button before the public water and sewer lines had been extended throughout the development onto Country Hills’ property.  Button filed an action in district court seeking to have the assessments declared unenforceable on the grounds that they conferred no special benefit to Button.  They also claimed they received no notice of the assessment hearing, so the assessments were invalid.  In addition, Button claimed that Country Hills breached its contract with the Township when they failed to extend the water system to the property.  Button alleged that those contractual obligations conferred a direct benefit to Button, and so Button was a third-party beneficiary of the development agreement.

Country Hills argued that Button was not a third-party beneficiary of the agreement with the township, so therefore Button had no grounds to bring a lawsuit raising the issue that Country Hills was in breach of that contract.  Country Hills further claimed that it had not breached the contract since there was a 15-year limit in which to complete the actions and because the actions were not required.  The district court granted summary judgment in favor of the township and Country Hills on both claims.   Button appealed.

In regards to the question of whether Country Hills breached their development contract with the township, the Court of Appeals ruled they had not.  It noted the distinction between a condition and a promise.  A condition “is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor.”  In this case, the actions to be taken by Country Hills were a condition to the rezoning of the property, not a requirement.  The only consequence of not completing the actions was that it would revert back to its previous zoning classification.  Additionally, the Court noted that the agreement allows for a 15 year deadline to complete the actions, and therefore the claim was not yet timely.

Further, the Court agreed with the district court in its decision that Button is not a third-party beneficiary of the development agreement.  A person is a third-party beneficiary of a contract only when the promisor undertakes an obligation “directly” to or for the person.  This means that not just anybody who benefits from a contract can enforce it.  Since Button was not named in the contract, it is not a third-party beneficiary.  The Court of Appeals affirmed the district court’s decision.

Rezoning in compliance with court order not a taking

by Melanie Thwing

Bettendorf v. St. Croix County
(Federal 7th Circuit Court of Appeals, January 20, 2011)

John Bettendorf owns property in St. Croix County, WI. Although the property was originally zoned agricultural-residential in 1972 he began to run a carpet business out of his basement. Then in 1974 he began to run an excavating company from the property. In 1984 Bettendorf applied to the County to re-zone a portion of his land to commercial.  The the application was approved with the stipulation that the rezoning was not transferable to any subsequent landowner, and upon such a transfer, or Bettendorf’s death,  the zoning classification of the property will revert to agricultural-residential. Bettendorf used the property in a commercial manner after the ordinance was enacted, but fully knowing that the language of the permit would not allow him to regain any commercial investment when he went to sell the property Bettendorf petitioned to make the re-zoning permanent. In 2004, Bettendorf filed an action in the Circuit Court for St. Croix County seeking a declaratory judgment that the conditional language was void and should be stricken from the ordinance. The circuit court found in favor of Bettendorf, but on appeal the Wisconsin Court of Appeals held the ordinance void in its entirety. In July 2007, the circuit court entered a revised judgment and order rescinding the commercial zoning of the disputed parcel in accordance with the Court of Appeals’ decision. The County complied with the order by rescinding the commercial zoning designation.  Bettendorf then sued in federal court.

Bettendorf argued that the County’s rescission of the commercial zoning designation following the court’s decision constituted a taking. He also argued that he was not given appropriate substantive and procedural due process protections. The Federal 7th Circuit observes that to prove a regulatory taking the government action must deprive the landowner of “all or substantially all practical uses of the property.” Bettendorf argued that the court did not adequately consider his anticipated and distinct investment opportunities. The court disagreed, stating that Bettendorf made improvements to his property with full knowledge that the commercial zoning classification was not going to be permanent.  When he began litigation he fully assumed the risk that the scope of the ordinance could be reinterpreted. Bettendorf still maintains full use of his property for agricultural and residential purposes, which simply restores the land to its original use.

Bettendorf argued he was “denied the protection of the substantive legal standards that would have been applied to a change in zoning….” The court found this argument to be without merit. The County’s decision to remove the commercial zoning designation was simply in accordance with the Court of Appeals decision. Therefore it could not be “conscious-shocking or arbitrary,” the showing needed to prove a substantive due process claim. 

As for Bettendorf’s procedural due process claim, Bettendorf was afforded the the opportunity to avail himself of due process protections through the state court system, yet he chose to bypass the state court appeals process. This seriously “undermines his argument that the state court process was deficient.” The Seventh Circuit ruled for the County on all claims.

Failure to provide written reasons for rezoning denial within statutory deadline does not invalidate denial

by Melanie Thwing

Johnson v. Cook County
(Minnesota Supreme Court, July 29 2010)

Minnesota Statute § 15.99 subd. 2:

Except as otherwise provided in this section and notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning…. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

Lance Johnson owns two parcels of land in Cook County, Minnesota. Parcel A is zoned residential and Parcel B is zoned half residential and half commercial. Despite that parcel A is zoned residential, Johnson had a storage shed that was commercially used. On May 15th, 2001 Johnson filed an application to rezone parcel A and half of parcel B to general commercial use.

The county’s planning committee looked at the application during a public meeting in June and recommended to deny the request. In September the Board of Commissioners reviewed the application at a public hearing. After hearing testimony from the public and Johnson the request was denied.  The Board did not state in writing any reasons for the denial.

Then in 2005 Rita’s Grandview Ridge submitted an application to rezone a portion of its property from commercial to residential and for a conditional use permit to build a planned unit development. Both applications were granted. In 2006 Johnson brought a declary judgment action arguing that the commission erroneously denied his application and erroneously approved Rita’s. He also argued the denial constituted a taking of property, all under Minnesota Statute § 15.99, subd. 2.

Summary judgment was granted for the county in district court, stating that the denial was “reasonable.” Later, the Court of Appeals reversed the decision in an unpublished decision, stating that the application was automatically approved under § 15.99 because the county failed to state any written reasons for the denial.

The county then appealed to the Supreme Court, arguing that automatic approval is given only when the application is not acted on within the 60 days. They further argue that the written reasoning is a discretionary function of the statute. Johnson argues that the statute mandates action in writing within 60 days.

In Hans Hagen Homes, Inc v. City of Minnetrista the Supreme Court found that “denial is complete when a city votes to deny the application and adopts a written statement of its reasons for denial, whether or not the city provides notice to the applicant.” Johnson argued that the ruling in Hans Hagen Homes means that denial is not complete until the reasons for denial are provided in writing.

The Court refused to follow Johnson’s reasoning, pointing to a footnote in Hans Hagen Homes that explicitly left the necessity of providing written reasons within 60 days as an open question.  The Court affirmed previous cases that held “a statute may contain a requirement but provide no consequence for noncompliance, in which case we regard the statue as directory, not mandatory.” The Court concluded that the “state in writing the reasons for denial” language in § 15.99 is directory because no consequence for failure to comply is provided in the same sentence (i.e., that the 60-day deadline is in the previous sentence, implying that it only applies to the decision itself). The Supreme Court reversed the decision of the Court of Appeals.

Wisconsin Town’s denial of rezoning request did not meet standard required by statute

by Allison Arends

Keith Johnson v. Washburn County and Town of Spooner
(Wisconsin Court of Appeals, February 17, 2010)

In Wisconsin, state law provides towns (townships) with a role in the county zoning process.  Under WIS. STAT. § 59.69(5)(e)3.  if a town affected by a proposed rezoning disapproves of the proposed amendment, the town board of the town may file a certified copy of the resolution adopted by the board disapproving of the petition with the [county zoning] agency before, at or within 10 days after the public hearing.

The Johnsons owned property in the Town of Spooner in Washburn County. In an attempt to rezone their property from forestry classification to planned unit development, the Johnsons filed a rezoning petition with Washburn County. The County zoning administrator sent a formal two page document to the town board requesting the town’s recommendation whether to approve or deny the petition (as required by Wisconsin law).  If the recommendation was to deny the petition, such denial must be made via a “certified copy of a resolution adopted by the town board” as required by WIS. STAT. 59.69(5)(e)6. The document provided spaces for the board to submit (1) their decision to recommend approval or denial of the petition (2) an explanation of that decision and (3) the signatures of the town chairman, supervisors, and clerk. The completed document was returned with only the word “denial” in the space for the recommendation and the signatures of the town chairman and two town supervisors, and countersigned by the town clerk. Although there was no indication of when or where the hearing was held, the town clerk dated the document July 10, 2007.

On September 18, 2007 the County approved the Johnson’s petition by adopting an amendatory ordinance over the Town’s denial. The Town responded by passing a formal resolution vetoing the County’s amended ordinance. As a result the zoning administrator notified the Johnson’s that their property would remain zoned forestry because the Town’s action, “effectively invalidated the ordinance amendment.”

The district court found,” the written submission to the zoning committee proper documentation of a town resolution disapproving the requested zoning change…” The Johnson’s appealed arguing that the July 10th denial did not constitute a certified copy of a resolution adopted by the town board, and that the vetoing of the County’s amendatory ordinance was irrelevant under WIS STAT 50.69(5)(e)6.

The question presented to the Court of Appeals was whether the form upon which the Town submitted its July 10 recommendation to the County constituted a certified copy of a resolution adopted by the town board under WIS. STAT. § 59.69(5)(e)3.  The Court of Appeals concluded that it did not.  “If the Town wished to object to the Johnsons’ petition, it was required to do so by passing a formal resolution, as it later did when disapproving the County’s amendatory ordinance.”  Although the legislature intended the town board “to serve as a political check on the otherwise unfettered discretion of the county board in wielding its legislative zoning power,” the town board performs its function as a political check only by certifying to the county that its denial was considered at a properly-noticed public meeting at which a resolution was introduced and carried.  Nothing in the record assures this occurred.

The court went on to note, “An amendatory ordinance is effective on passage if it makes only the change sought in the petition and if the petition was not approved by the town board pursuant to WIS STAT 59.69.” Therefore because the court found the town’s denial to be an improper resolution, the court decided that on remand, the circuit court would have to determine whether the amendatory ordinance complied with the requirements pursuant to WIS. STAT.59.69(5)(e)6.

Wisconsin town’s action amounted to defacto rezoning in violation of moratorium

by Allison Arends

State Of Wisconsin Ex Rel. Village of Newburg v. Town of Trenton
(Court Of Appeals Of Wisconsin, August 26, 2009)

Wis. Stat 62.23(7a) allows a municipality to temporarily enact a moratorium that prohibits adjacent unincorporated towns from changing the zoning of land within 1.5 miles of the municipality’s boundaries.  The moratorium gives the municipality time to work with each unincorporated town affected to prepare and adopt a comprehensive plan on how the land in that unincorporated town should be used.  The Village of Newburg adopted a temporary moratorium on  land within 1.5 miles of its boundaries for two years as of November 20th 2006. A parcel of land owned by Deerprint Enterprises, LLC, is located within the neighboring Town of Trenton and also within the Village of Newburg’s extraterritorial zoning moratorium. At the time the moratorium was put in place the parcel was zoned residential allowing, “single-family residential development in a farmette, or estate-type setting.”  The zoning did not permit commercial or industrial units.

While the moratorium was in place the Town approved a six-unit condominium development on the Deerprint land.  The development included an existing non-conforming commercial business, bud as part of the development agreement, the Town agreed to language that stated that “additional commercial units may be created… by subdividing all or a portion of the space included within the original commercial/industrial unit to form one or more additional commercial units.”

The Village argued that the Deerprint development included nonconforming mixed uses, and in order for this to be legal the Town must approve a planned development overlay for the parcel which, in turn, would require a rezoning in violation of the Village’s moratorium. The village argues that the approval of Deerprint parcel was invalid without an overlay and that the moratorium prohibits the Town from changing the zoning of the land.

The Wisconsin Court of Appeals addressed the Town’s argument that the Deerprint development is an issue of condominiums and not an issue of rezoning.  The court rejects this argument by pointing out that, “a change in zoning—or other approval under a zoning ordinance—should not be required for condominium conversion, unless a change in the use of the existing property is involved.”  The Village successfully illustrates that Deerprint development changed the use of the existing property and therefore an overlay or rezoning of the property was needed. The Deerprint parcel is zoned residential, yet one of the condominium units is identified as commercial/industrial. The court stated, “ We simply do not understand how a condominium unit set aside for commercial use does not run afoul of a zoning ordinance prohibiting commercial use just because it lies within an otherwise residential condominium.” In addition, the Town itself prohibits mixed uses, like Deerprint’s development, unless it grants an overlay which causes the court to conclude that the Deerprint development is a nonconforming use, and further more, that the Town Board, “rezoned without seeking the necessary approval.”

The Town argued that the case was moot because the moratorium had expired by the time it was heard by the trial court.  The court rejected the Town’s argument by analogy: ” a person who violates a statute is subject to that statute’s consequences, even if the legislature repeals the statute before the opposing party commences or completes its cause of action for the alleged offense.” The court also rejects the Town’s argument that the Village has no standing to seek declaratory relief when the court concludes that the Village has a legally protected interest that stems from its extraterritorial zoning authority, and if the Town was to grant an overlay to Deerprint, then its approval would violate the moratorium providing the Village with standing.

This case, as the court points out, presents an instance where a Town attempts to avoid the restrictions inherent to an extraterritorial zoning moratorium by framing its action as something different than a zoning change, when in reality the Town attempts to hide its approval of commercial building by making it a part of an otherwise residential condominium plan. As a result, the court found the Town’s approval to be “de facto rezoning” and therefore a violation of the Village’s extraterritorial zoning moratorium.

Consistent with a plan, but not enough – not now

by Gary Taylor

Francis, et.al. v. Bremer County Board of Supervisors
(Iowa Court of Appeals, October 21, 2009)

Showing of consistency with the comprehensive plan does not result in an automatic right to rezoning. 

J.D. Francis purchased approximately 35 acres north of Waverly, Iowa.  The land was zoned agricultural but most of it was designated for future single-family residential use by the Bremer County comprehensive plan.  Approximately four acres of the property was designated as “prime agricultural land” under the plan with a Corn Suitability Rating (CSR) above 50. 

Francis sought to rezone the non-prime agricultural land for residential development.  This land had a CSR of 49.5.  The Bremer County Planning and Zoning Commission found that the land was in a “planned growth area” under the plan, but nonetheless recommended denial of the rezoning request, citing citizen concerns about “current water supplies, runoff, number of drives along 190th Street, increased traffic, a possible sink hole in the area, productivity of the land, quality of life, septic system drainage, and not wanting more neighbors.”  The Bremer County Board of Supervisors followed the Commission’s recommendation and denied the rezoning.  Francis sued.

Francis asserted that the board of supervisors acted illegally in rejecting their rezoning petition because the land for which they sought rezoning had a lower CSR than the comprehensive plan’s rating for prime agricultural land, and was in an area designated for residential growth; i.e., that the requested rezoning was consistent with the comprehensive plan.  While agreeing with the general proposition that a county with a comprehensive plan must abide by that plan when making zoning decisions, the Court of Appeals also stated that “strict adherence to the statements [in a comprehensive plan] could actually negate other objectives of the plan.”  Citing the district court’s decision affirming the rezoning denial, the court stated,

“Just because a land owner demonstrates that a proposed use is consistent with a comprehensive plan does not mean, ipso facto, that the land owner is entitled to the zoning change….It remains for the board of supervisors to determine when, if at all, growth consistent with the comprehensive plan should occur.”

While the Court of Appeals admitted that the reasons for the denial stated in the record were “sparse,” it nonetheless determined that the comprehensive plan did not mandate a residential designation for land with a CSR of less than 50.  The plan does state that the county will “strive to preserve agricultural land, placing emphasis on” areas with a CSR of 50 or greater.  The plan lists other factors for consideration aside from agricultural land protection, such as the “protection of environmental features and sensitive areas” and the “quality of life.”

Justice Miller filed an opinion concurring in the result, but finding fault with the majority’s reasoning.  He particularly took issue with the fact that the board of supervisors, almost simultaneously, approved a similar rezoning request for a tract of land known as the Lakefield Estates Subdivision.  Justice Miller compared several relevant factors among the two requests:

(1) the comprehensive plan designates the Francis tract for future residential development, but identifies the Lakefield Estates tract as one that should remain agricultural;
(2) the Francis tract has a CSR of less than 50, while the Lakefield Estates land has a CSR greater than 64;
(3) the Francis tract has numerous nearby residences, while the area surrounding the Lakefield Estates land remains predominately agricultural;
(4) the Francis tract is adjacent to a blacktop highway, while the Lakefield Estates tract does not have direct access to a paved road;
(5) the Lakefield Estates tract is in a floodplain, while the Francis tract is not.

Nevertheless, Justice Miller concurred in the result despite the fact that the board’s two decisions “may be difficult or impossible to reconcile….It may be the board’s approval of the Lakefield Estates…rezoning…and not its denial of the Francis request, that arguably violates the comprehensive plan.”

Hudson Iowa rezoning consistent with its comp plan

by Gary Taylor

Marianne Craft Norton Trust v. City Council of Hudson, et.al.
(Iowa Court of Appeals, October 7, 2009)

Rezoning of parcel within city limits from suburban agricultural to rural residential consistent with comprehensive plan; did not constitute spot zoning.

Defendants, the Manatts and the Petersons, own 40 acres west of Highway 58, on the north side of the City of Hudson within the city limits.  The Marianne Craft Norton Trust owns adjacent property immediately south of the defendants’ property.  Although the land along both sides of Highway 58 leading out of town to the north is primarily agricultural, there are more than 20 rural residences in the area between the densely-settled part of the city and Highway 20, four miles to the north. 

The city adopted an updated comprehensive plan in October 2006 that designated 160 acres along the west side of Highway 58, including the defendants’ land and the land owned by the Trust, for future residential development.  In November 2006  defendants filed with the city council a request to rezone the 40 acres in question from A-1, Suburban Agriculture to R-5, Large-Lot Residential.  The plat submitted with the request showed 5 lots for development, ranging from 3 1/3 acres to over 4 1/2 acres, and two large undeveloped parcels.  The city planning and zoning commission voted in January 2007 to recommend approval of the rezoning.  After the required public hearings, the city council approved the rezoning request in April 2007.  In May 2007 the Trust filed a petition for writ of certiorari  with the district court, alleging the rezoning was “illegal, arbitrary and capricious, unreasonable, not based on substantial evidence, and an abuse of discretion.”   After taking testimony, reviewing exhibits and, with permission from the parties, visiting the area the court ruled in favor of the city and the defendants.  The court found the character of the area in question, while once primarily agricultural, has changed significantly and “visually appears to be more rural residential than agricultural.”  It found the city council gave proper reasons for approving the rezoning, and gave consideration to the appropriate factors.  It further concluded that “even if the rezoning does fit within the definition of spot zoning, it is not illegal,” in that there was a reasonable basis for making the distinction between the rezoned property and the surrounding property, and the rezoning was consistent with the comprehensive plan.  The Trust appealed the district court’s ruling.

The Court of Appeals affirmed the district court on all counts.  The Trust contended that the city council did not follow the elements found in Iowa Code 414.3 when considering whether to rezone the property and that the council, in performing a quasi-judicial function, should have made written findings with regard to each element.  The Court of Appeals disagreed, finding that “a primary consideration of [Iowa Code 414.3] is that the zoning be in accordance with a comprehensive plan.”   The minutes of the council meetings and the testimony of two council members at trial showed that the rezoning followed many of the land use goals stated in the comprehensive plan, and was consistent with the designation of the area for future residential use.  The Court of Appeals then, on its own, proceeded to relate the considerations of the rezoning to a number of the elements found in Iowa Code 414.3, and determined that although the evidence on some elements of the statute was mixed and could support a decision supporting or reversing the rezoning, the bulk of the evidence on the elements of section 414.3 supported the council’s decision.  “In addition, if the reasonableness of a zoning decision is open to a fair difference of opinion, courts do not interfere with the decision.”  The Court of Appeals did not address the district court’s conclusion that it “did not read Sutton v. City of Dubuque to require a council to issue written findings.”

The Court of Appeals judged the claim of illegal spot zoning against the three-part test in Perkins v. Madison County:  (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.  It also examined the considerations discussed in Kane v. City of Cedar Rapids, those being “the size of the spot zoned, the uses of the surrounding property, the changing conditions of the area, the use to which the subject property has been put, and its suitability for various uses.   It again ran through a number of facts from the record, and found particularly persuasive that the permitted uses in A-1, Suburban Agriculture and R-5, Large-Lot Residential were “quite similar and compatible,” that the character of the area was changing from agricultural to rural residential, and that the comprehensive plan contemplated future residential development in the area.   The court also observed that “in contrast to some other spot zoning cases, where the rezoned property was freed from some restrictions placed on the surrounding property, the rezoning in the case before us is more restrictive than the zoning on the surrounding property.”  The court concluded that the rezoning did not constitute an illegal spot zoning, nor were the council’s actions arbitrary, capricious or an abuse of discretion.

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