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Untimely Filing Fatal to Appeal of Board of Adjustment Decision

McCleary v. City of Des Moines Zoning Board of Adjustment
(Iowa Court of Appeals, April 19, 2017)

In September 2014, McCleary applied to the Des Moines Zoning Board of Adjustment seeking several conditional use permits and variances to allow him to operate a pet boarding business out of his home. A public hearing was held on September 22. The board voted to deny all of McCleary’s requests on October 23, 2014. On November 25, 2014 McCleary filed a petition for writ of certiorari appealing the board’s decision. Because of constitutional claims, the case was first sent to federal court. On March 11 the federal district court dismissed all McCleary’s federal claims and the case was remanded to state court.

On October 6, 2015 the Board of Adjustment filed a motion to dismiss arguing that McCleary’s petition for a writ of certiorari was late. State law allows for appeals to be filed only in the 30 days after a decision is made final. On November 2, McCleary filed a motion to disqualify the board’s attorney as that same attorney had previously represented McCleary in another matter. The district court determined on December 18 that McCleary’s petition was indeed untimely. The court also concluded that the plaintiff did not provide substantial evidence that his prior relationship with the defendant’s attorney bore “any relationship to the instant matter.” The district court granted the board’s motion to dismiss.

McCleary appealed that dismissal to the Iowa Court of Appeals. They reviewed the district court’s decisions in the areas of the timeliness of McCleary’s appeal as well as whether the board’s counsel should have been disqualified.

Timeliness Iowa Code section 414.15 establishes the right to appeal a decision from a zoning board and provides “[s]uch petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.” Because McCleary filed his appeal more than 30 days after the board made its decision, the district court did not have jurisdiction to hear it. McCleary asserted that his motion for declaratory relief was not subject to the same timeliness requirements as writs of certiorari. The Court of appeals disagrees. “Regardless of the avenue of relief McCleary chose, he was still appealing the decision of the zoning board and was subject to the statutory requirements of such an appeal.”

Disqualifying Counsel Because the attorney representing the board had previously been involved in representing McCleary, he claimed that the attorney should be disqualified.In determining if a prior relationship is enough to disqualify an attorney the court must determine if the two matters are substantially related. To do so, the court examines three factors:

  1. the nature and scope of the prior representation;
  2. the nature of the present lawsuit; and
  3. whether the client might have disclosed a confidence to [their] attorney in the prior representation which could be relevant to the present action.

The attorney described their prior relationship as, “providing a model letter of intent for a business purchase and reviewing a draft of the letter written either by [the former partner] or by Mr. McCleary.” He also stated that he, “did not meet Mr. McCleary in person and recall no further involvement in the transaction.” McCleary claims a connection exists because the prior representation involved the same property on which he eventually attempted to establish his pet boarding business.  The court failed to see how assisting McCleary’s representation in the property transaction would make him privy to any information that would be relevant to this zoning variance request.

On both matters the court of appeals affirmed the ruling of the district court.

When suing county, failure to serve notice on county is not a minor procedural error

by Gary Taylor

Dewit and Dewit v. Madison County Zoning Board and Madison County Zoning Board of Adjustment
Iowa Court of Appeals, September 13, 2017

In March 2015 the Madison County Zoning Office filed civil infractions against the Dewits for several zoning ordinance violations.  The case number assigned to these infractions was CVCV034188.  These infractions were resolved through a consent order in September 2015 which required the Dewits to abate the violations within six months (by February 2016).  After the consent order was issued, the Dewits filed an application for an agricultural exemption from the county’s zoning ordinance, which the county zoning administrator denied.  On appeal, the Madison County Zoning Board of Adjustment (ZBA) affirmed the denial.

On April 20, 2016 the Dewits filed a petition for writ of certiorari challenging the ZBA’s decision; however, they filed it in the civil infraction case CVCV034188.  The county attorney accepted service of the petition, but the original notice was not included in the materials sent to or accepted by the county attorney.  The county moved to dismiss the petition on the ground that the petition should have been docketed as a new action and not as a filing in the civil infraction case.  On June 7, 2016 the district court denied the motion to dismiss, and ordered the clerk of court to transfer the petition and all related filings to the appropriate docket and to assign a new case number to the petition.

The ZBA then filed a motion to dismiss on September 1, 2017 for failure to timely serve original notice on the board.  The next day the Dewits served notice on the ZBA, but this was 135 days from the original filing of the petition on April 20.  (Iowa Rules of Civil Procedure require original notice to be served on a defendant within 90 days of filing a petition).

The Dewits contended that the original notice was served on the ZBA 80 days from the day the district court transferred the petition to a new docket with a new case number; however, at the time the district court specifically ordered that the petition “would relate back to and be deemed to have commenced on the date of filing, April 20.” Thus service of the original notice did fall outside the 90 day window.

The Dewits also contended that the county attorney’s acceptance of the petition alone is sufficient to comply with Iowa Rules of Procedure.  The court rejected this as well.

The original notice and petition are separate and distinct….The contents of the original notice are prescribed by rule.  In contrast, the petition is a pleading that sets forth a simple and concise statement of the claim or claims at issue. [While] it is true Iowa courts are committed to liberal construction of the rules of procedure to insure resolution of disputes on their merits, the failure to timely serve original notice cannot be deemed a minor or technical error.

The district court did not err in dismissing the Dewits’ petition.

Courts Defer to Staff and Board of Adjustment Interpretation of Code

by Eric Christianson

Doss and Huffer vs. Ames Zoning Board of Adjustment
Iowa Court of Appeals, February 22, 2017

The City of Ames received a complaint that Angela Doss and Duane Huffer were building a fence in violation of the city’s zoning ordinance. The fence was 6 feet high and located in their backyard abutting other residential properties. The city determined that the fence was indeed in violation of the following section of code and notified the homeowners in a letter.

The maximum height of fences in any setback abutting a street right-of-way is four (4) feet, except that up to six (6) feet of fence is allowed in any side or rear setback if:

(a) The lot does not abut the front yard of any other residential property along the same side of the street;
(b) The fence is at least (5) feet from the property line abutting a street right-of-way.

-Ames City Ordinance § 29.408(2).

The homeowners appealed staff’s decision to the Ames zoning board of adjustment. The board unanimously denied the homeowners’ appeal. The homeowners appealed to district court alleging:

  1. the Board misinterpreted the ordinance because it was not clear on its face whether the semicolon between (a) and (b) meant “and” (conjunctive) rather than “or” (disjunctive);
  2. the city enforced the ordinance inconsistently, only in response to complaints;
  3. the city’s delay before sending the December letter precluded enforcement on procedural grounds and laches;
  4. the city’s interpretation of the ordinance creates a notice issue in violation of due process; and
  5. the city’s fence ordinance conflicts with Iowa’s partition-fence law.

The district court ruled that the partition-fence issue was not preserved for its review and resolved the four other issues in favor of the board of adjustment.

The homeowners appealed to the Iowa Court of Appeals. The court cited an earlier decision that, “the court may not substitute its decision for that of the board.” The decision of the board of adjustment is given a strong presumption of validity. In all other issues as well, the court affirmed the holding of the district court.

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.

Zoning Board of Adjustment properly carried out its role in approving application for CAFO

by Andrea Vaage

Grant County Concerned Citizens & Tyler v Grant County
South Dakota Supreme Court, June 24, 2015

Teton LLC applied for a conditional use permit to construct a confined animal feeding operation (CAFO) to house 6,616 swine larger than 55 pounds (“finisher” swine according to the Zoning Ordinances of Grant County (ZOGC)) and 1,200 swine smaller than 55 pounds (“nursery” swine in the ZOGC). The proposed operation would classify as a Class A CAFO-the largest possible designation under the ZOGC.  The Grant County Board of Adjustment (BOA) approved the permit after a hearing attended by 200 individuals. Grant County Concerned Citizens (GCCC) appealed.  Several procedural events are not included here, but the case eventually made its way to the South Dakota Supreme Court.  The Court’s conclusions on GCCC’s claims follow.

After the circuit court made a decision affirming the Board’s decision, GCCC submitted an affidavit signed by Tyler explaining the purpose of the excavation was to obtain water for his horse herd. The Board and Teton moved to strike the affidavit from record, upon which the circuit court granted the motion.

Private well. Under the ZOGC, a CAFO cannot be constructed within 2,640 feet of a private well. The ZOCG does not provide a definition of a “well,” however, SDCL 46-1-6(18) defines “well” as “an artificial excavation or opening in the ground, made by means of digging, boring, drilling, jetting, or by any other artificial method, for the purpose of obtaining groundwater.” GCCC claimed that the BOA’s decision improperly allows a CAFO within 2,640 feet of a well on neighbor Tyler’s property; however, the evidence showed that the well was actually dug on or just before the day of Teton’s application and that the excavation produced 12 gallons of water that day. The Board determined the Tyler’s constructed the well in order to frustrate the Teton’s application and as such the excavation did not meet the definition of “well.”  The Court affirmed, concluding that the BOA’s finding that the purpose of the excavation was to frustrate the CAFO application was material to the statute’s definition of “well” when the definition requires a well to be dug “for the purpose of obtaining groundwater.”  It was irrelevant that the excavation actually obtained 12 gallons of water.

Manure management and operation plan. Section 1034(4) of the ZOCG stipulates that the proposed CAFO must provide a manure management plan. GCCC contests that Teton’s did not find adequate acreage on which to spread manure, because Teton “significantly overstated” the amount of land on which it could apply manure.  The Court concluded that the Board made proper factual determinations on this issue, noting that ZOCG offers little in the way of specific requirements for a manure management and operation plan.

Failure to give notice to Melrose Township. The access road to the CAFO was jointly maintained by two townships. One of the two townships, Melrose Township, was not notified of the proposed CAFO by Teton.  Section 1304(12)(K) of the ZOCG requires “Notification of whomever maintains the access road (township, county and state).” An individual at the hearing for the permit testified that both townships had known about the proposed CAFO and decided not to upgrade the access road. It is irrelevant that the township was not notified by Teton, because the township had actual notice of the proceedings as evidenced by this individual’s testimony.

Nutrient management plan.  GCCC asserts that the proposed CAFO would not be able to obtain the water required to operate as evidenced by Teton’s nutrient management plan.  The Court considered this argument waived because the ZOGC’s requirements related to nutrient management plans do not address the water requirements of a CAFO.

GCCC made a number of other similar claims, but the Court found nothing in the record to suggest in these or any of the discussed claims that the Board did not regularly pursue its authority. The Supreme Court affirmed the ruling of the trial court.

In the end, the Cleveland Clinic got its helipad

by Hannah Dankbar

Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals
(
Ohio Supreme Court, November 5, 2014)

The Board of Zoning Appeals of the City of Cleveland denied a permit to Cleveland Clinic Foundation and Fairview Hospital to build a helipad on the roof of a two-story addition to the hospital.

The land that the hospital sits on is zoned as a Local Retail Business District, meaning “a business district in which such uses are permitted as are normally required for the daily local retail business needs of the residents of the locality only.” (Cleveland Code of Ordinances (C.C.O.) 343.01(a)). The hospital has been granted many variances since this zoning was put in place.

In October 2010, the Clinic filed an application with the City’s Department of Building and Housing seeking approval of three construction projects, including the construction of the helipad. The City cited C.C.O. 343.01(b)(8), which says “accessory uses” are allowed “only to the extent necessary [and] normally accessory to the limited types of neighborhood service use permitted under this division,” and rejected all three projects.

The Clinic appealed to the Board of Zoning Appeals (BZA).  Opponents testified about potential noise and traffic problems.  The hospital representatives testified that almost all of the hospitals in the Cleveland metropolitan area have helipads, and that the use of helicopters in the transport of patients reduces travel time and, therefore, saves lives.   The BZA approved the other two projects, but denied the permit to construct the helipad citing C.C.O. 343.01(b)(8) by saying, “those uses that the Zoning Code characterizes as retail businesses for local or neighborhood needs would not involve a helipad as normally required for the daily local retail business needs of the residents of the locality.”

From here the Clinic appealed the denial to the Cuyahoga county Court of Common Pleas, who reversed the decision. This court used C.C.O. 343.01(b)(1) that provides that with limited exceptions, all uses permitted in the Multi-Family District are also permitted in the Local Retail Business District. Hospitals are expressly permitted in the Multi-Family district, and so the Court of Common Pleas concluded that a helipad is “customarily incident to” a hospital and therefore qualifies as an “accessory use.”

The BZA appealed to Eighth District Court of Appeals, who reversed again. The court found that ambiguity exists in C.C.O., and ultimately decided to give deference to the BZA and its original decision, saying “When the BZA reasonably relies on a code provision, its determination should hold so long as its decision is not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record,” This is to be true regardless of the fact that the law requires any ambiguity in a zoning ordinance to be construed in favor of the property owner.

The Supreme Court of Ohio determined that the wrong standard of review was used by the Eighth District Court of Appeals. Rather than review the BZA’s decision for clear error, the Court of Appeals should have been reviewing the Court of Common Pleas decision, and only overruling the Court of Common Pleas if the decision is not supported by a preponderance of reliable, probative and substantial evidence. Reversal is only appropriate when there is an error in the application or interpretation of law.

The Supreme Court of Ohio refers to C.C.O. 325.02 and 325.721 (to define “accessory use”), 337.08 (types of buildings permissible in a Multi-Family District), and 343.01(b) (permitted buildings in a Local Retail Business District). “Given the record before us, we have little trouble concluding that the preponderance of substantial, reliable, and probative evidence supports the [Court of Common Pleas’] conclusion that helipads are customarily incident to hospitals, at least in Cleveland.”

Claim preclusion not applicable to second application for conditional use permit for frac sand mining

by Gary Taylor

O’Connor v. Buffalo County Board of Adjustment and Glacier Sands, LLC
(Wisconsin Court of Appeals, April 22, 2014)

On January 13, 2012, R&J Rolling Acres (R&J) applied to Buffalo County for a conditional use permit to establish a frac sand mining operation on property zoned Agricultural.  The application identified R&J as the “owner” of the property and Glacier Sands, LLC, as the “developer.” Among the application materials was included a map showing the proposed route trucks would use to travel to and from the property.  R&J asserted the haul route would be “south on [State Highway] 88 to [State Highway] 35,” and that an estimated 80 trucks would leave the property via this route every weekday.  In February 2012 the Buffalo County Board of Adjustment (Board) held a public hearing on the application, which was continued to Marc.  Numerous people spoke up at the hearings about issues related to traffic safety on Highway 88, especially after R&J clarified it expected 126 trucks to leave the site each day instead of 80. At the end of the meeting, the Board voted 2-1 to deny R&J’s application. In its written decision issued March 29, the only reason the Board identified for denying the application was its concern that the large number of trucks leaving the mine site each day would decrease traffic safety on Highway 88. 

R&J did not seek circuit court review of the Board’s decision.  Instead, on March 27, 2012, R&J submitted a second CUP application.  The second application was identical to the first, except that it corrected a misspelled word, changed the proposed number of trucks leaving the site from 80 per day to 126, and proposed to have trucks hauling six days per week instead of five.  After a hearing (continued twice to obtain and digest a traffic study from the Wisconsin DOT), the Board granted the second conditional use permit request subject to 43 conditions. Two conditions were to limit to 105 the number of truck loads laving the site daily, and to prohibit hauling on weekends and holidays.  The Board’s written decision was similar to the earlier written denial, except that the Board explained:

The Wisconsin DOT Northwest Region contracted with AECOM to conduct a “Traffic Safety Impact Assessment” for [Highway 88] during May and June of 2012 in light of the potential increase in truck volume on [Highway 88] from proposed, new non-metallic mine operations in the area.  Representatives of the DOT were present at the hearings/meetings to present the initial as well as updated results of their assessment and answer questions.  Specifically, AECOM addressed crashes and crash rates as well as geometric and operational features pertaining to [Highway 88].  Overall, the [DOT] acknowledges that [Highway 88] may have some substandard features, but believes the road can handle increased traffic volumes.

O’Connor, one of the citizens opposing the permit, filed suit, claiming that the Board erred in two respects:  (1) the Buffalo County zoning ordinance does not allow frac sand mining as a conditional use in the agricultural district; and (2) after the Board denied R&J’s first CUP application, it was prohibited from considering the merits of R&J’s second application. 

Frac sand mining as a conditional use.  The Court of Appeals reviewed the Buffalo County zoning ordinance and found that it allows as a conditional use “[m]anufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel and the quarrying of limestone and other rock for aggregate purposes, including the erection of buildings, and the installation of necessary machinery and equipment incidental thereto, but not the storage of cement, asphalt, or road oils or the mixing of concrete or black top or related materials, provided that any county, town, or municipal government or its agent may store or mix such materials when incidental to the improvement of highways or streets.”  O’Connor argued that because frac sand mines do not extract sand “for aggregate purposes,” they are not allowed as conditional uses.  The Board argued that the phrase “for aggregate purposes” referred only to “the quarrying of limestone and other rock,” and therefore “manufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel” was allowed.  Finding both interpretations reasonable, the Court deferred to the Board’s interpretation because under prior caselaw the Board’s decision is entitled to a presumption of correctness.

Consideration of second application.  O’Connor asserted that, after the Board denied R&J’s first application, R&J’s “sole remedy … was to commence a certiorari action in the circuit court.”  The Court disagreed.  It noted that a county may enact a rule prohibiting a party whose application to the zoning board has been denied from filing a new application absent a substantial change in circumstances, but Buffalo County has not done so.  Absent such a rule, an individual is free to submit a second conditional use permit application after the first has been denied, as long as he or she is willing to pay a second application fee.  The Court rejected O’Connor’s assertion that the Court’s conclusion places an unfair burden on those opposing the application and creates an uneven playing field.  “Filing successive applications clearly places a significant burden on the  applicant, as well as those opposing the application.  For each additional application, the applicant must pay an additional review fee.  The applicant must spend time preparing a new application and appearing at new hearings before the board of adjustment.  If the board ultimately grants a successive application, the applicant then faces the prospect that opponents will file an action for certiorari review, in which the applicant will likely choose to participate to defend the permit.”

Alternatively, O’Connor relied on the doctrine of claim preclusion.  “Claim preclusion provides that a ‘final judgment on the merits in one action bars parties from relitigating any claim that arises out of the same relevant facts, transactions, or occurrences.The doctrine has three elements:  (1) identity between the parties or their privies in the prior and present suits, (2) prior litigation that resulted in a final judgment on the merits by a court with jurisdiction, and (3) identity of the causes of action in the two suits.”  In questioning whether the doctrine extends beyond judicial judgments, neither O’Connor nor the Court could cite any Wisconsin case holding that a board of adjustment’s unreviewed denial of an application precludes it from considering a subsequent application submitted by the same party.  Indeed, the Court again pointed to the existence of local rules prohibiting successive applications in support of its conclusion that claim preclusion did not bar the Board in this case from considering R&J’s second CUP application.  “If claim preclusion operated to bar zoning boards from considering successive applications, there would be no need for these successive application rules.”

The Court affirmed the Board’s decision to grant the conditional use permit.

 

 

Wisconsin town zoning board has no jurisdiction in shoreland zoning area regulated by county

by Kaitlin Heinen

Stephen Hegwood v. Town of Eagle Zoning Board of Appeals
(Wisconsin Court of Appeals, September 25, 2013)

Stephen Hegwood owns shoreline property in the town of Eagle upon which he built an outdoor fireplace and pergola…located, respectively, fourteen and eight feet from the lot line.  The property was in an area under the jurisdiction of the Waukesha County shoreland zoning ordinance. Hegwood applied for variances from the county’s twenty-foot setback requirement after these structures were built. Waukesha County conditionally approved both. Then Hegwood applied for variances from the town of Eagle’s twenty-foot setback requirement, but the Town Zoning Board Appeals denied his application. Hegwood filed for certiorari in circuit court. The court reversed the Board’s decision, so the Board appealed to the Wisconsin Court of Appeals.

The Board argued the circuit court erred when it reviewed Hegwood’s appeal as a certiorari action. However, both Hegwood and the Board agreed that Wis. Stat. § 62.23(7)(e)10 governed an appeal of a board of appeals’ decision, which states that “[a]ny person … aggrieved by any decision of the board of appeals … may … commence an action seeking the remedy available by certiorari.” On certiorari review, the court must presume the correctness of the board of appeals’ decision and review the board’s decision to determine whether it “(1) kept within its jurisdiction; (2) proceeded on a correct theory of law; (3) acted in an arbitrary, oppressive or unreasonable manner that represented its will and not its judgment; and (4) ‘might reasonably make the order or determination in question based on the evidence.’” Hegwood was an “aggrieved person” and was “specifically authorized…to seek relief by means of a certiorari action,” according to Wis. Stat. § 62.23(7)(e)10. The statute also allowed the court to determine whether the Board proceeded under a correct theory of law. Thus Hegwood’s action was appropriately brought as a certiorari action.

In addition, the Board argued the court erred in concluding that the Board proceeded on an incorrect theory of law when it applied the town’s zoning code to the fireplace and pergola. Hegwood argued that “Wis. Stat. § 59.692 vests counties with the exclusive authority to zone shorelands.” However, the Board countered that “there is no specific statutory language prohibiting towns from adopting and enforcing zoning ordinances affecting shorelands and that it is permitted to do so pursuant to its village powers.”

The court has previously held that the “legislature has given shoreland zoning authority to counties.” The court concluded that towns do not have zoning authority over the same shorelands, except for limited circumstances, and proceeded to examine the possibilities for town jurisdiction over shorelands asserted by the town.

Wis. Stat. § 281.31 (the “Navigable waters protection law”) subsection (1) “authorize[s] municipal shoreland zoning regulations.” Subsection 2(c) of that statute defines a “municipality” as “a county, village, or city”—towns are not included. Furthermore, Wis. Stat. § 281.31(2)(e) provides that “‘Regulation’ means ordinances enacted… pursuant to any of the zoning…powers delegated by law to cities, villages and counties.” The court reasoned that “[h]ad the legislature intended to generally permit towns to regulate shorelands, we would expect to see a reference to such authority in § 281.31; but no such reference is made.”

The court also considered Wis. Stat. § 59.692 (“Zoning of shorelands on navigable waters”). Subsection 59.692(1m) states that “each county shall zone by ordinance all shorelands in its unincorporated area.” Subsection (2)(a) states that “ordinances…related to shorelands and enacted under § 59.692 ‘shall not require approval or be subject to disapproval by any town or town board.’” The legislature “specifically prohibited towns from having authority to approve or disapprove of county shoreland ordinances operating within the town.” Additionally, subsection (2)(b) established that town regulations in regards to shorelands would have effect only “if they were in existence before enactment of the county ordinance and were more restrictive than the county provisions affecting the same shorelands.” In this case, the town ordinance was adopted after the county ordinance. Even in regards to the DNR’s shoreland zoning standards (Wis. Stat. § 59.692(4)(a)), “the legislature did not include a reference to towns.”

The Board also claimed that it acted appropriately because the town had concurrent zoning authority with the county over shorelands and that it had the authority to reject Hegwood’s application for a variance, since the town passed the zoning ordinance pursuant to village powers. The statute the Board points to (Wis. Stat. § 60.22(3)), however, clearly indicates that “permitting general town regulation of shorelands under village powers does conflict with the statutory scheme of Wis. Stat. §§ 281.31 and 59.692…[and] deliberately excludes towns from having shoreland zoning authority.” The court concluded that from “[t]he plain language of…Wis. Stat. §§ 281.31 and 59.692, the legislature intended that towns would not have authority to regulate shorelands.” Thus, the Board’s claim of authority failed.

The Wisconsin Court of Appeals concluded that the Board had no authority to consider Hegwood’s application for variances. “Had the Board proceeded on a correct theory of law, it would have recognized that Hegwood’s property was subject only to the county’s shoreland zoning ordinance and dismissed his application for the variances as unnecessary.”  The circuit court’s reversal of the Board’s decision was affirmed.

Issue preclusion can be applied to bar zoning board proceedings, but applicants for 1998 and 2011 special exceptions were different

by Gary Taylor

Prybil Family Investments, Ltd., v. Board of Adjustment of Iowa City
(Iowa Court of Appeals, September 5, 2013)

In July 2011 Streb Construction Company filed an application for a special exception to operate a wet batch concrete plant on land zoned “General Industrial”  in the Scott-Six Industrial Park in Iowa City.  After a public hearing the Iowa City Board of Adjustment (Board) approved the special exception in September 2011.

Prybil Family Investments owns agricultural property adjacent to the land in question.  The land has been used for farming, and will continue to be for the forseeable future. Prybil filed a writ of certiorari to contest the Board’s decision.  Prybil’s main argument was that the same property owner filed an application for a special use permit to operate a cement plant on the same property in 1998, and was denied.  Therefore the doctrine of issue preclusion prevented the Board from considering the 2011 application (issue preclusion prevents the same issue from being reconsidered again in a later proceeding).  Alternatively, Prybil argued that the Board’s decision was not supported by substantial evidence. The district court disagreed on both claims and allowed the permit to stand.  Prybil appealed to the Iowa Court of Appeals.

The Court of Appeals began by noting that Iowa case law has never addressed whether the concept of issue preclusion applies to zoning board determinations.  It did acknowledge that in Johnston v. Christenson, the Iowa Supreme Court stated that “an administrative adjudication by an entity such as the board of adjustment can have a preclusive effect in a judicial proceeding..”  It also referenced Am. Jur. 2d, Zoning and Planning, which states that “res judicata (a concept that encompasses issue preclusion) applies to administrative zoning decisions in order to promote finality of decisions unless it is shown that there has been a substantial change of circumstances since the earlier ruling.” The Court, therefore, determined that issue preclusion can be applied to bar a second application for a special exception if the following elements, cited in Johnston v. Christenson, are met: (1) the issue must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made in the prior action must have been essential and necessary to the resulting judgment.” “However,” the Court noted, “if there has been a substantial change of circumstances” the concept will not apply.

Before beginning its analysis of the four factors it cited, it determined that, in any event, Prybil’s issue preclusion claim failed because the applicant for the 2011 special exception was not the same as the applicant for the 1998 special exception. Even though “Streb Construction Company” applied for the 2011 permit, and “A.F. Streb” applied for the 1998 permit the Court concluded that “Prybil presented no evidence showing that the parties were identical or [in close legal relation].”  The Court went on, however, to note that Prybi’s claim would also fail on the Christenson factors.  The mobile wet batch plant desired in 2011 incorporates improved environmental protections.  The 2011 and 1998 applications were for different lots in the Industrial Park.

After a lengthy discussion about what issues related to the substantial evidence claim were properly preserved for appeal by Prybil, the Court addressed the substantial evidence claim itself.  Prybil contended that the dust pollution from the plant will interfere with Prybil’s use an enjoyment of its property by damaging crops, but the Court did not disagree with the Board’s conclusion that conditions attached to the special exception – requiring Streb to pave the surrounding roads and plant trees to act as a screen from adjacent properties – were sufficient to satisfy the concern.  Prybil also contended that its property values would be diminished by the plant, but the Court again found sufficient evidence to support the Board’s conclusion that there were no Heavy Industrial zones in Iowa City where the plant could locate by right and any opinions on effect on future property values were merely speculative.  Although Prybil offered contrary testimony from two realtors, the Court said that the information presented at the hearing was sufficient to support the Board’s decision.