by Gary Taylor

City of Mayville, Wisconsin v. Village of Kekoskee and Town of Williamstown, Wisconsin (per curiam**)

Wisconsin Court of Appeals, July 20, 2023

^{**In Wisconsin, per curiam opinions may not be cited in any Wisconsin court as precedent or authority.}

The Village of Kekoskee was incorporated in 1958 from territory that had previously been part of the Town of Williamstown. In 2015, the Village notified the Town that it was having difficulty seating a full Village board, and as a result, was considering dissolution. Representatives from the Town and Village met several times to explore their options and ultimately determined that the appropriate approach was to consolidate the territories of the Town and Village through a Cooperative Plan under Wis. Stat. sec. 66.0307, and in 2018, they did so. The plan was approved by the Wisconsin Department of Administration, but The City of Mayville filed suit challenging the approval because the plan purported to change the city’s boundary line. After the court sided with the City, the Village and Town went back to the drawing board and entered into a new agreement under a different statute, Wis. Stat. sec. 66.0301(6). Under their new agreement, when the Village adopts a “triggering ordinance” the boundary line between the Village and Town would be adjusted and a “major portion” of the Town’s territory would become part of the Village except for a remnant of four parcels totaling 163 acres. These four parcels had no residents and no public improvements, but after the adoption of the “triggering ordinance” the owners would be given 60 days to pursue procedures to annex to the City, to the Village, or to “demonstrate a willingness and ability to remain [an] independent [Town].” If “in the opinion of the Village” the owners have not demonstrated the willingness and ability to remain an independent Town then the Village would be entitled to annex the remnant parcels. The agreement also provided that after adoption of the triggering ordinance:

• all real, personal, and intangible property of the Town, and all its assets and liabilities, become those of the Village.
• the Town’s governing body transitions into the governing body of the Village, which would involve the sequential resignation of Village board members and the appointment of Town officials to fill these vacancies.

When, in 2021, the Village adopted a triggering ordinance, the City challenged the agreement, taking the position that the agreement effectuated a consolidation which was not authorized by Wis. Stat. 66.0301. The trial court sided with the Town and Village, and the City appealed.

The City made several arguments to the Wisconsin Court of Appeals. First, the agreement, rather than “determining” a common boundary line between two municipalities, in fact eliminated all boundary lines and thus effected a consolidation of the Town and Village. This, so argued the City, can only be accomplished through Wis. Stat. sec. 66.0229 or Wis. Stat. sec. 66.0230. The Court declined to address whether Wis. Stat. 66.0301 authorizes a complete consolidation of municipalities. Rather, it concluded that because four remnant parcels remained in the Town, a boundary line between the Town and Village also remains. It noted that Wisconsin courts have recognized that Wis. Stat. 66.0301 allows “major” boundary changes to occur via agreement. “The plain language of [the statute]… does not limit the scope of boundary changes to only ‘modest’ changes.”

Second, the City argued that just because the eventual absorption of the remnant parcels of the Town into the Village is set to occur in stages it does not alter the conclusion that a consolidation will eventually occur. The Court disagreed, noting that consolidation is not, in fact, a foregone conclusion, noting that the owners of the four parcels will still have the option to remain a Town.

Third, the City asserted that the physical transfer of territory is not the only indicator of municipal consolidation; rather, the Town and Village effectively consolidated through the resignation of Village board members and appointment of Town board members to fill their seats. The Court, however, noted that the agreement provided for the change in boundaries allowed under Wis. Stat. 66.0301, and it did not see how the changing of municipal governance in any way impacted this fact.

The Court dismissed other arguments made by the City as either being underdeveloped, or being raised for the first time at the Court of Appeals level (a no-no), and concluded that the City failed to show that the agreement was contrary to Wis. Stat. 66.0301.

Polk County (Iowa, if you weren’t sure) is looking for people to serve on the Planning and Zoning Commission and the Zoning Board of Adjustment. Information here.

by Gary Taylor

Garrison v. New Fashion Pork, LLP
Iowa Supreme Court, June 30, 2022

Iowa Code 657.11 provides statutory immunity to animal agriculture producers against nuisance suits, commonly called Iowa’s “right-to-farm” law. Section 2 allows neighboring landowners to bring successful nuisance suits against such producers only if the producer fails to comply with state and federal regulations applicable to animal feeding operations, or if (1) the producer’s operation unreasonably and for substantial periods of time interferes with the person’s comfortable use and enjoyment of the persons life and property, and (2) the operation failed to use existing prudent generally accepted management practices reasonable for the operation. In 2004 in the case of Gacke v. Pork Xtra, Iowa Code 657.11 was ruled unconstitutional by the Iowa Supreme Court as applied to the facts of that case. Somewhat unusually, the Court did not base its ruling in Gacke on a Takings analysis, but rather on the Inalienable Rights clause of the Iowa Constitution (Article I, Section 1). It states:

All men and women are, by nature, free and equal, and have certain inalienable rights-among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

Iowa Constitution, Article I, Section 1

In 1972, Gordon Garrison purchased approximately 300 acres of farmland in Emmet County. He lives on the property in a home built in 1999. He at one point owned a 500-head ewe flock and could have over 1,000 animals on his property each birthing season. The sheep were kept in a barn most of the winter. After the 1980s, the size of his flock began to decrease. Some of his land continues to be farmed, but most of his acreage “is being cared for in restoration of the ‘Prairie Pothole’ ecology that was indigenous to northwest Iowa.”

In December 2015, New Fashion Pork (NFP) started operating a confined animal feeding operation (CAFO) uphill and adjacent to Garrison’s property. NFP’s subsidiary, BWT Holdings, owns additional land adjacent to Garrison’s property for disposal of manure. The confinement building is approximately a half-mile away from Garrison’s property line and is permitted to hold 4,400 to 8,800 hogs depending on their weight. The defendants put pattern tiling in the BWT property, which Garrison claims led to substantially more drainage flowing to his property. According to Garrison, in the fall of 2016, NFP’s “manure application was done when the field was saturated with water so the field could not absorb the manure and the manure discharged to [his] property.” In December 2018, NFP applied manure to frozen ground in violation of state regulations. The Iowa Department of Natural Resources entered a consent order under which the defendants paid an administrative penalty of $4,800 for that violation. From 2016 to 2020, Garrison documented the times that he smelled the CAFO’s odor – more than 100 days of the year, sometimes all day. The odor interferes with his enjoyment of working outdoors, going on walks around his property, and his sleep. His son confirmed the odor can be very pervasive depending on the wind direction.

The relevant portion of this lengthy opinion is the Supreme Court’s discussion, and ultimate overruling, of its own decision in Gacke. It began by noting that Gacke is an outlier. All fifty states have right-to-farm laws that provide farmers with various forms of statutory immunity from nuisance claims similar to section 657.11(2); however, Iowa is the only state to hold that the statutory immunity available under its right-to-farm law is unconstitutional in any manner. Gacke created a three-part test to determine whether a neighboring landowner could avoid the nuisance immunity protections offered by section 657.11(2): whether the plaintiffs can show they (1) received no particular benefit from the nuisance immunity granted to the agricultural operation other than that inuring to the public in general, (2) sustained significant hardship, and (3) resided on their property long before any animal operation was commenced. If the neighboring landowners were able to prove all three factors then they will have demonstrated that the law’s grant of immunity violated their inalienable rights granted by the Iowa Constitution.

After a review of caselaw from Iowa and other jurisdictions the current Iowa Supreme Court determined that the three-part test in Gacke was “created out of whole cloth,” engenders unnecessary litigation and is difficult to administer, and must be overruled. “Stare decisis does not prevent the court from reconsidering, repairing, correcting or abandoning past judicial announcements when error is manifest . . . and stare decisis has limited application in constitutional matters.”

Rather than apply the three-part test, the appropriate analysis under an inalienable rights claim is to determine whether there was a “rational basis” for the enactment of Section 657.11(2). The rational basis test is “highly deferential” to governments’ actions: the litigant challenging the local government action “must refute every reasonable basis upon which the statute could be found to be constitutional.” In the present case the Court determined that a rational basis exists for the legislature to promote farming, and that reducing nuisance liability is a proper means to that end.

Turning to the facts of this case, because Garrison relied solely on the constitutional argument at trial he presented no witnesses, expert or otherwise, to testify as to the prudence or general acceptance of any farm management practices, or to set a standard as to existing generally accepted management practices. He failed to identify any alternative technologies and approaches that would be considered “existing prudent generally accepted management practices.” Likewise, he identified no evidence that Defendants departed from any standard industry practices. He therefore failed to meet his burden of proving that he qualified for any of the exceptions to the nuisance immunity protection of 657.11.

Over seven years ago I took my administrative position in ISU Extension and Outreach. To lend some perspective, the last time I was able to regularly post to the BLUZ:

• The automatic transmission had just been invented
• My kids had just started high school. They are about to graduate from college.
• Saturday Night Fever was #1 at the box office
• Mozart had just composed Don Giovanni
• Nebraska was still relevant in football

I may not have all these dates exactly correct, but nonetheless I am now I’m back in the Community and Regional Planning department, once again teaching and providing outreach to communities in Iowa. I can’t cover 7+ years of lost cases, but I’ll start by grabbing some from the last few months that seem important.

Is anybody still out there reading this?

To allow the greatest number to participate, our Spring 2021 workshops will be offered virtually. Hopefully we’ll see you on the road next year!

Registration is open for the following workshops. To register click on the link next to the date on which you would like to attend.

The cost to participate is $45 per registrant or $35 each if a city or county registers five or more. Workshops are limited to 50 participants.

February 16: 1pm – 4 pm – http://bit.ly/pz17388

February 22: 1pm – 4 pm – http://bit.ly/pz17388

March 1: 5:30pm – 8:30 pm – http://bit.ly/pz17408

March 4: 5:30pm – 8:30 pm – http://bit.ly/pz17410

March 11: 1pm – 4 pm – http://bit.ly/pz17410

Participation will require a computer with a strong internet connection, but all interaction will take place through chat and interactive questions on the screen. No microphone or camera are necessary for participation. We will send you the link for participation the day before your scheduled workshop and you will have access to a recording of the presentation for one month after the date of the workshop.

Registration will close the day before the workshop. But, if possible, please register at least one week in advance as we will be mailing the workbooks to you so you can follow along and take notes as we move through the presentation. If you register less than a week before the workshop you will still receive a notebook, but it may be after the workshop.

In addition, we can conduct an online workshop tailored to an individual community upon request.

By: Eric Christianson

In addition to the changes to county zoning, discussed in this post, brought about by HF 2512 and HF 2477. There were a number of other legislative changes this past session. These include limitations on the ability of cities or counties to regulate: short-term rentals, shooting ranges and ammunition storage, cell tower siting, and food stands operated by minors.

Short-term rental regulation preemption

HF2641 adds a definition of “short-term rental property” to Iowa Code and places restrictions on the ability of cities and counties to regulate properties managed as short-term rentals. Essentially, short-term rentals are any dwelling that, “is offered for a fee for thirty days or less.” Cities and counties are required to consider property managed as a short-term rental a residential land use.

Local governments may not prohibit, require a license or permit, or charge any fee for short-term rental property. It also prevents cities and counties from adopting, “any regulation, restriction, or other ordinance… relating to short-term rental properties.” There are a handful of exceptions to this allowable only, “if enforcement is performed in the same manner as enforcement applicable to similar properties that are not short-term rental properties.”

Regulation of weapons, shooting ranges, and ammunition

HF 2502 contain a number of restrictions on local governments relating to the regulation of firearms.

The major change to city and county zoning enabling legislation says that in approving the use, establishment, or expansion of a shooting range, the city or county zoning commission may apply and enforce zoning regulations, but may not require compliance with “any conditions… that are more stringent than those imposed by state law.” In cases where there is no zoning commission, then this applies to the city council or county board of supervisors.

A notable element of this addition is that it implies that the zoning commission, an advisory body to the city council or county board of supervisors, is responsible for the application and enforcement of zoning regulations when applied to shooting ranges.

Additionally, local governments may not regulate the storage of weapons or ammunition. There are other restrictions on local governments in this bill, which have little impact on land use regulation.

Extension of the Iowa Cell Citing Act

The Iowa Cell Citing Act, HF 487, passed during the 2019 legislative session requires local permitting authorities to accept an application for a cell tower if the proposed tower is:

• In an unincorporated part of a county with <15,000 population
• Not on land used for single family housing
• Not within a designated area of historical significance
• Tower will be part of the nationwide public safety radio network

The act was originally passed in response to a specific denial of a permit for a cell tower in Allamakee County in 2018 and was set to expire July 1, 2022. SF 2196 adopted this year extends the act through July 1, 2025.

Regulation of food stands operated by minors

HF 2238 makes it so that state and local governments may not require a license, permit, or fee for temporary food stands on private property operated by minors. The exceptions to this are foods that require time/temperature control for safety purposes or alcoholic beverages.

In addition to our in-person workshops that will be held Spring 2021 if conditions allow, we now will offer online workshops on an ongoing basis.

The cost to participate is $45 per registrant or $35 each if a city or county registers 5 or more. The dates and times for these workshops are:

• Tuesday, August 18, 2020, 1:00-4:00 pm
• Tuesday, September 8, 2020, 1:00-4:00 pm
• Tuesday, October 13, 2020, 1:00-4:00 pm

To register click on the date that you would like to register for. New dates will be added three months in advance. In addition, we can conduct an online workshop tailored to an individual community upon request.

By: Eric Christianson

This session, the Iowa Legislature passed two bills concerning county zoning. HF 2512 and HF 2477, together represent significant changes to county zoning. The intent behind both bills is to reduce counties’ ability to regulate agricultural activities. The specifics of the bills raise many questions for counties as they implement their provisions.

HF 2512 contains three major changes:

• Modifications to the agricultural exemption process
• Membership eligibility for the Board of Adjustment and Planning Commission
• Additional requirements for amendments to the comprehensive plan.

Agricultural Exemption Process

Few issues are as vexing for county zoning officials as interpreting the agricultural exemption to county zoning. Iowa’s County Zoning Enabling Act (Iowa Code, Chapter 335) explicitly exempts from county zoning regulations all: 

land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.”    

Iowa Code 335.2

The intent is to exempt “agricultural activities” from zoning, but interpreting that exemption is complicated. Iowa Code does not give clear criteria and Iowa courts have provided little guidance. In practice there has been a wide variety in how counties apply the exemption. Following a 2013 Iowa Supreme Court decision Lang v. Linn County, many counties have adopted a submission process to aid zoning administrators in determining whether a particular structure is “primarily adapted […] for agricultural purposes.” 

HF 2512 adds the following two paragraphs to Iowa Code 335.2:

A county shall not require an application, an approval, or the payment of a fee in order for an ordinance to be deemed inapplicable to land, farm barns, farm outbuildings, or other buildings or structures that are primarily adapted for use for agricultural purposes under this section.

Land, farm houses, farm barns, farm outbuildings, or other buildings or structures may qualify under this section independently or in combination with other agricultural uses. Land enrolled in a soil or water conservation program shall be considered land primarily adapted for use for agricultural purposes under this section.

HF 2512

These additions to the ag exemption statute create several new ambiguities. In many counties the application process has been a voluntary step that landowners may take to have zoning officials review building plans before construction rather than receive a notice of violation for a non-exempt property after it is constructed. This law does not seem to preclude the continued use of these voluntary application processes provided they are not a requirement.  A voluntary review process, at least, would lessen the instances of post-construction enforcement problems, when landowners have built buildings that clearly do not meet the ag exemption requirements without first consulting with county zoning officials.

An ambiguity that remains is that a similar passage from another Code Chapter 331.304(3)(b) exempts from county building codes, “farm houses or other farm buildings which are primarily adapted for use for agricultural purposes, while so used or under construction for that use.” That passage is left unchanged. Most counties use the same application process to determine exemption to both zoning and building codes. It seems reasonable to conclude that an application process to determine exemptions from county building codes may continue on its own.

Finally, 335.2 has, and continues to exempt “land, farm houses, farm barns, farm outbuildings or other buildings or structures” from county zoning. However, the term “farm houses” is not included in the new language exempting “land, farm barns, farm outbuildings, or other buildings or structures” from an application process.  A house was at the heart of the Lang v. Linn County case, and the primary trigger for requiring an exemption application in many counties has been the construction of a dwelling. Standard legal statutory interpretation suggests that the exclusion of a term from a list must be intentional, and therefore counties could continue to require applications for exemptions for houses.  Of course, please consult your county attorney before relying on this interpretation!

The second paragraph expands the definition of “agricultural purposes” to include land enrolled in a soil or water conservation program. Many, but not all, counties had considered this an “agricultural purpose” previously. The commonly used definition of agriculture for determining exception to county zoning and building codes has been “the art and science of cultivating the ground, including harvesting of crops and rearing and management of livestock” (Thompson v. Hancock County, 539 N.W.2d 181, 1995). This change clearly expands that definition to include conservation programs. Interestingly, this change will potentially allow the agricultural exemption to apply to properties where no active agriculture is taking place at all provided the parcel is enrolled in a soil or water conservation program. 

Membership Requirements for the Planning and Zoning Commission and Board of Adjustment

Effective immediately, all county Planning and Zoning Commissioners and Zoning Board of Adjustment members must reside “within the area regulated by the county zoning ordinance.” Previously Chapter 335 had required that a majority of the members of both boards “reside within the county but outside the corporate limits of any city.” This change is effective immediately, creating vacancies on boards that have traditionally been difficult to fill. The change of language to refer to, “the area regulated” will present a particular challenge to counties that are only partially zoned. 

Update:  An edit to 335 from the budget bill (HF 2643) that passed both houses early Sunday morning (June 14, 2020) appears to partially reverse course with regard to the change in board and commission membership. No board members may live within city limits, but HF 2643 changes their residency requirement from “the area regulated by the county zoning ordinance” back to within “the county, but outside the corporate limits of any city.” This change effects both the Board of Adjustment and Planning Commission. This change is only significant for the small number of partially zoned counties.  As of the writing of this post the Governor has not yet signed the budget bill and therefore could use line item veto on this provision, although it seems unlikely.

Comprehensive Plan Amendments

HF 2512 also expands the role of the Planning and Zoning Commission in reviewing amendments to the comprehensive plan. The Planning and Zoning Commission must make a recommendation on amendments before the Board of Supervisors may take any action to amend a plan. It also requires that the Board of Supervisors hold a public hearing before amending the comprehensive plan. Previously 335.5(4)(c) had stated, “Following its adoption, a comprehensive plan may be amended by the board of supervisors at any time.” That section is removed. 

Agricultural Experiences

The other bill passed this session, HF 2477 creates a new category of activity “agricultural experiences.”

1.  For purposes of this section, “agricultural experience” includes any agriculture-related activity, as a secondary use in conjunction with agricultural production, on a farm which activity is open to the public with the intended purpose of promoting or educating the public about agriculture, agricultural practices, agricultural activities, or agricultural products.

2.  To assist in the promotion of agricultural experiences, a county shall not require a conditional use permit, special use permit, special exception, or variance for agricultural experiences on property of which the primary use is agricultural production.

HF 2477

The way this bill is written makes it difficult to understand exactly how counties may regulate “agricultural experiences” and what specific activities are included under that definition. 

First, what specific activities will have an “intended purpose of promoting or educating the public about agriculture…”? Many common activities fall in a gray area. Agricultural field days and harvest festivals generally are carried on with the intent to educate the public about agriculture. Retail shops where local produce is sold could be considered to be “promoting…agricultural products,” but what if it is selling products neither grown nor processed on the farm or even in Iowa?  Does that matter?  If it does not and such sales meet the definition, then where is the line drawn for restaurants that “promote…agricultural products” (food) brought in from anywhere in the world?  What “promoting or educating” takes place at the typical corn maze or wedding barn?  Without further clarification it may take years and multiple court cases to sort out these nuances.

Importantly, HF 2477 does not clearly make “agricultural experiences” exempt from county zoning. That would have been simple to do. HF 2512 discussed above added, “land enrolled in a soil or water conservation program” to 335.2, which is the section of code dealing with the agricultural exemption. Instead HF 2477 creates a new code section and only explicitly prevents counties from permitting these activities through the special exception process. 

One possible interpretation is that despite the messy drafting, this bill does exempt these activities or at least forces counties to allow them as a permitted use on “property of which the primary use is agricultural production.” This seems like the likely intent of the bill and a court may take that into account in its interpretation. Another perspective is that the bill only does what it states explicitly. It prevents counties from using the special exception process to permit “agricultural activities.” In that case it may not prevent counties from regulating these activities in other ways. 

We are left with many questions: Are these activities now exempt from county zoning or might a county regulate them in using zoning tools apart from, “conditional use permit, special use permit, special exception, or variance?” Could a county allow “agricultural experiences” as a permitted use, but subject them to regulations such as maximum numbers of people or limited operating hours? Could certain activities still be banned outright? Could regulations be different in different zoning district? At this point we do not have any clear answers. 

The impact of all of these changes will take some time to fully understand. The requirements for membership of boards and the comprehensive plan amendment process are straightforward. However, the changes to the agricultural exemption process and the creation of the category of “agricultural experiences” raise many questions. It is likely that we will see counties take a number of different approaches until the courts or the legislature provide greater clarity.

The Iowa League of Cities and Iowa State Extension and Outreach have developed a pandemic checklist to help local governments through response and recovery to the Covid-19 Pandemic. Whether local governments have already prepared an emergency plan or not, this document intends to provide communities with some basic questions to think about as they handle pandemic issues.