ISU Extension to Continue to Provide Services of the Institute of Public Affairs

In April, the University of Iowa announced the closure of the Institute of Public Affairs. The Institute had been a resource organization for Iowa’s local governments since 1949. The mission of the Institute of Public Affairs was to provide information and services that assist in maintaining and strengthening the effectiveness of Iowa’s state and local governments.

Iowa State Extension is working with the Iowa League of Cities and former staff from the Institute of Public Affairs to ensure that these important services remain available to local governments. See our local government programming page or brochure for a list of some of the programs and services we provide.

Contact Eric Christianson (ejchr@iastate.edu; (515) 451-5662 for pricing and more information.

2018 Nuisance Abatement Conference

The Iowa League of Cities and ISU Extension to Communities will be hosting the inaugural Nuisance Abatement Conference, May 16 at the Gateway Conference Center in Ames. The day-long conference will feature guidance on nuisance abatement, a critical issue for all communities in their efforts to build and maintain vibrant neighborhoods. Attendees will learn effective ways to rebuild homes and buildings, return dormant properties to an active use and restore community pride. Registration details can be found here.

The Nuisance Abatement Conference is currently sold out. If you would like to be added to the wait list, please contact Shannon Busby at shannonbusby@iowaleague.org or (515) 244-7282. Any openings will go to those on the wait list on a first-come, first-serve basis.

Agenda

Opening General Session (10-11 am)

The conference will begin with guidance on how to set a strong foundation for nuisance abatement. We will cover the basics of nuisance property codes, effective enforcement methods and dealing with dangerous and dilapidated buildings.

 

Concurrent Workshops – Morning Session (11 am – noon)

  • Proactive Nuisance Abatement Strategies – Hear how your community address nuisances before they become a problem, including efforts to build neighborhood pride, identify leaders and motivate residents to maintain their property.
  • Creating a Nuisance Abatement Plan – Many cities conduct nuisance abatement activity in a purely reactive way, but what if your community developed a detailed plan? Planning can help prioritize properties and issues to address, leading to a more effective and efficient nuisance abatement process.
  • Tax Sales and Acquisitions – This workshop will focus on processes to acquire derelict and abandoned properties through tax sales and award of title by a court. While these processes can be challenging, they are a powerful tool that communities can use to return problem properties to a more active use.

Lunch (Noon – 1 pm)

 Concurrent Workshops – Afternoon Session (1-2 pm)

  • The “Other” Nuisances – This session will offer tips for dealing with the “other” nuisances that occur beyond the usual overgrown grass or weeds. Learn best practices for enforcing junk vehicle codes, business nuisances, noise violations, animal control provisions and more.
  • Financing Nuisance Abatement – Finding ways to fund nuisance abatement activities is challenging as cities try to stretch their budget as far as possible. Hear methods for collecting abatement costs from property owners, how to strategically budget for abatement efforts and state programs that offer funding assistance.
  • Tax Sales and Acquisitions – A repeat from the morning session to ensure adequate time is given to this important and challenging topic.

 

Closing General Session (2-3 pm)

Attendees will hear from a panel of city officials that have used innovative methods in successfully addressing nuisance properties. This interactive closing session will provide case studies and lessons that can be applied in any community with an opportunity to discuss local challenges.

The Annual Fiscal Conditions Report (FYE 2017) for all cities in Iowa is now available

The Iowa Government Finance Initiative (IGFI) Annual Fiscal Conditions report, for the Fiscal Year Ending 2017 for all 945 cities in Iowa have just been released. County reports are forthcoming later this year. The reports provide an alternate perspective on local government finances and trends. The information in these reports will help local elected and appointed officials during their budgetary and planning processes.The 2017 reports have been thoroughly revised and expanded. Ending fund balance is now presented separately for the governmental funds and proprietary funds.

These reports are a valuable resource to communities in Iowa to keep tabs on economic, demographic, and fiscal changes taking place and to plan for the future. This is the sixth year of publication for these reports. These reports can be accessed on the Iowa Government Finance Initiative website. Just click on ‘City Reports’.

IGFI is the public finance outreach wing of ISU Extension and Outreach. It provides resources and works with Iowa governments on a host of issues including finance and community economic development.

Questions on the report can be sent to Biswa Das at bdas@iastate.edu.

 

Only the Board of Adjustment can approve Special/Conditional Use Permits

by Eric Christianson

Holland v. Decorah

Iowa Supreme Court, April 2, 2003

This is an older case, a classic of Iowa planning and zoning case law. However, the issue of the role of the zoning board of adjustment is one that still comes up quite frequently.

In the late 1990s Wal-Mart began planning a new location in Decorah, Iowa. The location selected was located in the floodplain of the Upper Iowa River. To build there, Wal-Mart had to place fill in the floodplain. First, Wal-Mart obtained the required permits from the Iowa Department of Natural Resources. Then, Wal-Mart applied to the Decorah City Council for a permit to place fill on the floodplain. The city’s zoning code contained among its permitted uses in the F-1 floodplain district:

Dumping of approved materials for landfill purposes, subject to prior approval of the city council and appropriate state agencies. [emphasis added]

Following this section of city code, Walmart’s representatives appeared before the city council on August 15, 2000 and requested approval to fill the property. After a heated and confrontational public comment period, the city council approved the request by a vote of four to three. The council’s vote was only to approve the fill. It did not change the zoning of the area or approve of a site plan.

Previously, Upper Iowa Marine, which owns adjacent land, had attempted to dump fill in the floodplain. They also applied for and obtained the proper permits from the Iowa Department of Natural Resources. Instead of presenting their request to the city council. They applied for a special exception to the zoning ordinance from the zoning board of adjustment. The board of adjustment found the application inconsistent with the comprehensive plan and denied the request.

A group of citizens in Decorah filed suit, arguing that Wal-Mart’s request should have been submitted to the board of adjustment as Upper Iowa Marine had done rather than the city council.

The case hinges on two main issues (1) the authority of the board of adjustment and the city council and (2) definition of a special use.

Iowa Code 414.7 states that a city council should appoint a board of adjustment so that it, “may in appropriate cases and subject to appropriate conditions and safeguards make special exceptions to the terms of the ordinances…”

Further on in 414.12 Iowa Code defines the powers of the board of adjustment including, “to hear and decide special exceptions to the terms of the ordinance…”

Courts in Iowa have been very clear that no other entity has this power. In The City of Des Moines v. Lohner in 1969 the court said that the power to make special exceptions are “placed exclusively in the board [of adjustment] and effectively restricted by statute.” Likewise in Depue v. City of Clinton in 1968 the court asked itself, “[I]s the jurisdiction of the board of adjustment, conferred by sections 414.7 and 414.12 and exclusive jurisdiction? We think the answer[ is] affirmative.”

It is clear then in Iowa case law that approving special uses is the exclusive jurisdiction of the board of adjustment. At issue is whether conditioning a permitted use on “prior approval of the city council” was essentially the same as a permitted use. Wal-Mart argued that the council’s grant of permission was not a special exemption because it was listed as a permitted use and the council had only a “limited, technical review.” Walmart argued that the city council was not examining whether the proposed change was consistent with the city’s comprehensive plan. Instead they were simply ensuring that the appropriate permit had been obtained from the Department of Natural Resources and that the fill material was free from waste materials.

In its reasoning, the court took special note of the contested nature of the public discussion period before the vote at the council meeting. During this meeting evidence and opinions were presented on both sides and one council member even attempted unsuccessfully to convene a task force to study the issue further.

The issuance of special-use permits is quasi-judicial or administrative. […]  The problems with allowing a political, legislative body such as a city council to rule on applications of this nature (in addition to lacking statutory authority) are apparent in this case.  The city council had no hearing procedures, notice requirements, or the type of guidelines that would govern the board of adjustment.

Even on the cold minutes of the meeting, it is apparent the council would have known by the time the discussion was concluded, if they did not already know, they had a tiger by the tail.  The residents were deeply divided on the issue, raising concerns about the environmental impact, the fairness of the proceedings (especially in view of the fact the board of adjustment had denied a similar permit), and the prospect of 120,000 cubic yards of fill being placed in the floodplain in the event the DNR appeal was successful or the construction plans were thwarted for some other reason.

In the end, the court concluded that whether or not dumping fill in the floodplain was a special or conditional use in Decorah’s code, the city council’s actions violated state code.

If it was a special use, is clear that the city council had no authority to allow it. Even if it is not, however, it would violate chapter 414 of Iowa Code which requires that zoning be done “in accordance with the comprehensive plan.” In fact, Decorah’s comprehensive plan expressly addresses protecting its floodplains as natural resources “for use as permanent open space.” In making a decision in direct opposition to the comprehensive plan, the application of the ordinance would still be illegal.

 

Historical Note:

Walmart had already completed construction on the $20 million building that their superstore would occupy at the time of this decision. The building had been sitting vacant since the previous fall awaiting the outcome of this lawsuit. Eventually, the parties settled. Wal-Mart agreed to make a donation to the Decorah library and to fund a study of the floodplain. Wal-Mart also agreed to lease their old building the the city for $1 a year with all proceeds from subleases going to fund the construction of a river trail. The Wal-Mart, much like confusion over roles in planning and zoning, is still with us today.

Registration now open for the Spring 2016 Intro to Planning and Zoning workshops

Registration is now open for the Spring 2016 Introduction to Planning and Zoning Workshops.  For more information and the link to online registration, click on the “Intro to Planning and Zoning Workshops” tab at the top left of this page.

Note that we have moved exclusively to an online registration system for the workshops. When you register you will have the option to pay by credit card, or to be invoiced via email.

The dates and locations are:

Monday, March 21 – Okoboji – Arrowwood Resort, 1405 Highway 71
Tuesday, March 22 – Clear Lake – Best Western Holiday Lodge, 2023 7th Ave North
Tuesday, April 5 – Decorah – Hotel Winneshiek, 104 East Water Street
Wednesday, April 6 – Cedar Rapids – Clarion Hotel & Convention Center, 525 33rd Ave. SW
Monday, April 11 – Sioux City – Bev’s on the River, 1110 Larsen Park Road
Tuesday, April 19 – Creston – Supertel Inn & Conference Center, 800 Laurel Street

The Introduction to Planning and Zoning for Local Officials workshop is a three-hour session designed to introduce the basic principles of land use planning and development management to elected officials, planning and zoning officials, and board of adjustment members without formal training in the subjects.  Using case scenarios in a highly-interactive format, the workshop highlights issues frequently faced in the land use process.

The workshop is offered annually in multiple locations across the state.  Locations change from year-to-year so that city and county officials are able to attend a location near them at least once every two years.  All workshops begin with registration and a light supper at 5:30 p.m.  The program begins at 6:00 p.m. and concludes by 8:45 p.m. The registration fee is $65 per individual.  This fee is reduced to $55 per individual if a city or county registers 5 or more officials to attend.  The fee covers the workshop instruction, workshop materials, and supper.

The workshop has been pre-approved by the Iowa Municipal Finance Officers Association and the Iowa League of Cities for credits toward certification.

Bass Pro Shops creates border war in Georgia

by Hannah Dankbar and Gary Taylor

Kemp v Monroe County
Georgia Supreme Court, November 5, 2015

At issue is the current boundary between Bibb County and Monroe County, Georgia.  Not coincidentally, the final determination of the boundary line will determine which county is entitled to the roughly $1.3 million in tax revenue generated by a Bass Pro Shops retail store and nearby homes. Monroe County supports a survey that puts the line a few hundred feet south of where Bibb thinks it is.

The dispute over the county boundary line began in 2005. The Governor sent a land surveyor to identify the boundary line according to state statute. The survey took place in 2008 and in 2009 the final report was submitted to Georgia’s Secretary of State per state statute. Bibb County filed exceptions to the survey (which would have put Bass Pro Shops in Monroe County) and Monroe County defended the survey. The Secretary of State assigned the hearing to the Special Assistant Administrative Law Judge in 2011, who accepted the survey. The Secretary of State then held oral arguments of his own and visited the site.  The Secretary chose to reject the survey, which left the boundary line undetermined.

Monroe County petitioned for mandamus, which the trial court granted  The trial court directed the Secretary to accept the survey and establish the boundary. The Secretary and Bibb County appealed asking: (1) whether the actions of an official under OCGA §36-3-20 et seq. may be subject to a writ of mandamus; and (2) if the mandamus is permissible, whether the Court erred in granting the mandamus petition and ordering the Secretary to record the survey.  During this time the Secretary informed all parties of his intent to hold a separate hearing and accept new evidence. Monroe County objected and the trial court ordered the Secretary to not hold the hearing, calling it a “gross abuse of discretion.”

The Supreme Court reversed the decision of the trial court. Counties do not have a right to a “particular process by which the Secretary is to receive evidence and reach a decision, as these matters fall within the Secretary’s discretion.” A court cannot “preclude the Secretary from allowing the record to be reopened and new evidence developed.” There is no statute constraining the Secretary of State to a particular process, including re-opening evidence. The trial court’s conclusion that it is unfair to hold an additional hearing presents a question for the legislature, not the court. The court is only allowed to determine if the Secretary’s actions are arbitrary or capricious; no such finding was made.

The trial court’s order was reversed and remanded. If either party wants to challenge the Secretary’s final decision they must show that the Secretary acted arbitrarily and capriciously or grossly abused his discretion.

Fed 6th Circuit reviews use of miniature horse as service animal under ADA and FHAA (Part I – ADA claims)

by Gary Taylor

Anderson v. City of Blue Ash
Federal 6th Circuit Court of Appeals, August 14 2015

[Note: This is a lengthy case, but it is a good review of issues with “unusual” service animals that occasionally arise.  Today’s post is on ADA.  Next post will be on FHAA]

Ingrid Anderson’s minor daughter (initials C.A.) suffers from a number of disabilities that affect her ability to walk and balance independently.  She keeps a miniature horse at her house as a service animal.  The horse enables C.A. to play and get exercise in her backyard without assistance from an adult.

Since acquiring the horse in 2010 the Andersons and the city of Blue Ash, Ohio have had continual disagreements about allowing the horse on the property.  In 2013 the city passed an ordinance banning horses from residential property, then criminally prosecuted Anderson for violating it.  Anderson’s defense was that the Americans with Disabilities Act (ADA) and the Fair Housing Amendments Act (FHAA) both entitle her to keep the horse at her house as a service animal.  The Hamilton County Municipal Court found Anderson guilty of the criminal complaint.  Andersons brought their own action federal district court on ADA and FHAA claims, but the district court granted summary judgment for the city finding that the claims were barred by the determination of the issues (res judicata) in Anderson’s criminal conviction in municipal court.  Andersons appealed.  After reversing the district court’s conclusion on the res judicata claim (for various reasons beyond the interest of most readers of this blog) the 6th Circuit went on to consider the specifics of the Andersons’ ADA and FHAA claims.

ADA – Miniature horses as service animals. The ADA prohibits entities from discriminating against individuals with disabilities by, including other actions, “failing to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities….” The regulations governing miniature horses allow them for use as service animals if the horse “has been individually trained to do work or perform tasks for the benefit of the individual with a disability,” provided that the horse and the requested modification also satisfy certain “assessment factors.”  The assessment factors to be considered are:

  1. the type, size, weight of the horse, and whether the facility can accommodate these features;
  2. whether the handler has sufficient control of the horse;
  3. whether the horse is housebroken; and
  4. whether the horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.”

The ADA thus requires a highly fact-specific inquiry, and decisions must be made on a case-by-case basis.  After lengthy discussion of each of these factors, the 6th Circuit concluded that the district court had not sufficiently developed the factual record concerning the Anderson’s situation, and thus summary judgment for the city was inappropriate.

ADA – Intentional discrimination. The Andersons also raised an intentional discrimination claim under the ADA.  For such a claim to succeed the Andersons need to have proven that:

  1. C.A. has a disability;
  2. she is otherwise qualified; and
  3. she was being … subjected to discrimination because of her disability.

Courts have interpreted this to mean that “animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.”  Further, it must be shown that the discrimination was “intentionally directed toward him or her in particular.”

After examining the evidence the 6th Circuit concluded that the intentional discrimination claim failed because the Andersons could not prove factor #3.  The city’s actions were brought about by citizen’s complaints of the unsanitary conditions caused by animal waste in the Andersons’ backyard.  The city council decided not to take action on these complaints until the Andersons acquired a second horse and neighbors made additional health complaints. The sequence of events was consistent with the city responding to legitimate concerns of its citizens, and provided no basis for an inference that the city’s actions were “because of C.A.’s disability.”

 

 

Welcome our guest blogger

So who is this Andrea Vaage who has been posting case briefs for the BLUZ?  Andrea is providing me with much needed help this summer while Hannah is on an internship.  Andrea is a Master’s student in Community and Regional Planning and Sustainable Agriculture here at ISU. She holds a degree in Environmental Science from Central College in Pella, Iowa and a certificate in Entrepreneurial and Diversified Agriculture from Marshalltown Community College. Her masters research focuses on factors influencing ordinance adoption to promote urban agriculture, and comes out of the essential part she is playing in our Leopold Center Local Foods Systems Project.  More information on the project will be appearing here as this phase of the effort wraps up in the coming weeks.

As should be obvious by now, I don’t hire just anyone to blog for the BLUZ.  Both Hannah and Andrea recently have been awarded competitive national scholarships to pursue their academic interests in the intersection of planning and sustainable agriculture.  Congratulations to both of you!

All states in designated non-attainment area must include Reasonably Attainable Control Measures and Technologies in State Implementation Plans (acronyms omitted!)

by Hannah Dankbar

Sierra Club v Environmental Protection Agency
Federal 6th Circuit Court of Appeals, March 18, 2015

In 2011 the EPA reported that the Cincinnati-Hamilton metropolitan area attained national air quality standards for particulate matter. A regional cap-and-trade program helped the area reach this standard. The EPA gave the area “attainment” status, even though the three States that administer its pollution controls never implemented the provisions known as “reasonably available control measures” (RACM) that apply to nonattainment areas. Sierra Club filed a complaint against the EPA for acting illegally.

The Clean Air Act (CAA) allows the EPA to add different kinds of emissions that can damage public health to the National Ambient Air Quality Standards. When an emission is added to this list each state must submit a State Implementation Plan (SIP) for achieving the standard. After receiving the plan the EPA will designate areas in each state as “attainment areas” (areas that attain the standard), “nonattainment areas” (areas that do not) or “unclassifiable areas”. If a state has “nonattainment areas” the state, or states, must revise their plan to meet additional requirements. One requirement is “RACM”, or “RACT”, which requires that the SIP “provide for the implementation of all reasonable available control measures (RACM) as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, or reasonably available control technology (RACT) and shall provide for attainment of the national primary ambient air quality standards.” Id. 7502(c)(1). There are five conditions that must be met in order for the EPA to switch a “nonattainment area” to an “attainment area.”

To address areas of concern along state lines, the EPA created a cap-and-trade system. A “cap” is set on allowable emissions; anybody who has emissions above this limit can either invest in clean technology or “trade” emission credits with another entity.

Sierra Club argued that the improvement in area quality that could be attributed to the cap-and-trade program was not “permanent and enforceable reductions in emissions” required under the CAA, and that the nonattainment State Implementation Plan (SIP) had never been implemented. The State of Ohio and the local utility company joined the EPA in disagreement. The EPA claims that Sierra Club does not have standing in this matter and they challenge the interpretation of the CAA.  After addressing the standing questions (it was determined that the Sierra Club did have standing) the court addressed the CAA interpretation argument.

Sierra Club first questioned EPA’s interpretation of a provision of the CAA that bars redesignation to attainment unless “the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions[.]” Sierra Club claimed that the cap-and-trade system is not “permanent and enforceable” because a company could simply buy more credits from polluters outside the nonattainment area and increase their emissions. Sierra Club wanted “permanent and enforceable reductions in the nonattainment area”. The EPA acknowledged that the statute does not clarify from which area the reduction comes from. The court decided that the statute is “sufficiently ambiguous” to clear the first part of the test.

In the question of whether the EPA’s interpretation is a permissible construction of the statute, they found that this rested on the acknowledgement of regional problems. The EPA acknowledged that the pollution is a regional problem. The court did not see the word ‘permanent’ as being sufficient enough to close cap-and-trade programs. Neither Congress nor Sierra Club offered a definition of enforceable. From the statute it does not appear that Congress intended cap-and-trade programs to be excluded. This is enough to conclude that their focus is “sufficiently rational” and within the statutory limits and blocks the warrant for deference to their technical expertise.

Sierra Club challenged EPA’s approval of the state’s SIPs without RACM/RACT. Indiana and Ohio did not have these provisions in their plans. A state seeking redesignation “shall provide for the implementation” of RACM/RACT, even if those measures are not strictly necessary to demonstrate attainment. If the State has not done so, EPA cannot “fully approve” the area’s SIP, and redesignation to attainment status is improper.

Because the Ohio and Indiana SIPs for their respective portions of the Cincinnati-Hamilton area did not provide for RACM/RACT, the EPA acted in violation of the CAA when it approved those redesignation requests. The court ordered the EPA to reject the redesignation of Ohio and Indiana’s portions of the Cincinnati-Hamilton area, and leave the Kentucky area as was originally defined.

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