South Dakota Supreme Court defers to local interpretation of zoning ordinance

by Eric Christianson

Croell Redi-Mix v. Pennington County Board of Commissioners
(South Dakota Supreme Court, December 13, 2017)

Croell Redi-Mix owns and operates a quarry located in Pennington County, South Dakota. The quarry has been in operation since the 1970s and was acquired by Croell in 2015. Croell intended to expand the operation. After the quarry was opened, but before it was acquired by Croell, Pennington County adopted zoning ordinances. The quarry falls into the “A-1 General Agricultural District” which allows “temporary quarries” ,by right, and mining operations, provided that a construction permit is obtained.

In late 2015, working in consultation with staff from the Pennington County Planning Department, Croell submitted an application for a construction permit to expand its operations. On February 8, 2016 staff issued a recommendation that the permit be granted subject to 11 conditions. The Pennington County Planning Commission reviewed the report and approved the application subject to the recommended conditions that same day.

On February 10, 2016, the Pennington County Board of Commissioners received a letter signed by 37 area residents requesting an appeal of the approval of the permit. The Board of Commissioners held a special meeting on March 2 to consider the appeal. Opponents expressed concerns about the quarry’s expansion including: dust, traffic, availability of groundwater, runoff, and depreciation of property values. At a second hearing the board voted 4-1 to reverse the approval of the permit.

Croell appealed to the circuit court which reversed the Board of Commissioners decision finding:

  1. The residents who sent the letter did not have standing to appeal.
  2. The Commissioners misinterpreted their own ordinance in their decision.
  3. The Commissioners’ decision to deny the permit was arbitrary.

The Board of Commissioners appealed to the South Dakota Supreme Court which granted certiorari.

The Supreme Court reconsidered the three findings of the circuit court.

Standing to Sue Pennington County’s Zoning Ordinance states:

“Any action taken by the Planning Director in administering or enforcing Section 507(A) may be reviewed by the Pennington County Board of Commissioners upon the request of any person affected by such action.” [PCZO § 507(A)(7)(f)]

Croell argues, and the circuit court agreed that this right to appeal only extends to considerations of erosion and storm water control. The Supreme Court reads this passage differently, interpreting the word ‘administer,’ ‘affected,’ and ‘any’ above quite broadly:

PCZO § 507(A) is titled “Erosion and Storm Water Control,” the right to appeal under §507(A)(7)(f) extends to anyone “affected” by “any action taken by the Planning Director in administering . . . Section 507(A)[.]” (Emphasis added.) Noticeably absent from §507(A)(7)(f) is any language limiting the right to appeal to matters involving erosion and storm – water control. Thus, §507(A)(7)(f) provides a right to appeal any action taken by the Planning Director under §507(A). In this case, the action challenged is the Director’s issuance of a construction permit — i.e., the Director’s administering of §507(A)(3).

Because the individuals appealing would be affected by the zoning administrators decision, they have standing to appeal.

Statutory Interpretation Croell argues that the use of its property as a quarry is a permitted use in an A-1 General Agricultural district given that the statute permits temporary quarries and requires only a building permit for the “extraction of sand, gravel, or minerals.”

The County claims that Croell would need to obtain a seperate mining permit as required in the plain language of the ordinance which states, “no extraction of any mineral or substance […] shall be conducted without a Mining Permit.” Here the court identifies a question of statutory interpretation and supports the Commissioners’ interpretation. Further the Court cites the US Supreme Court’s opinion from Chevron v. Nat. Res. Def. Council (1984), which established the principle of “Chevron deference.” Chevron established the principle that courts will defer to the interpretation of those administering a statute as long as that interpretation is “based on a permissible construction of the statute.” In this case the South Dakota Supreme Court found that the Pennington Board of Commissioners interpretation was permissible.

Arbitrariness Because the Supreme Court found that the Board of Commissioners was able to consider more than erosion and storm water control in its decision making, the argument for arbitrariness is moot. The Board’s decision was based on evidence in the scope of its review.

The Supreme Court found that the circuit court erred in reversing the Commissioners’ decision.

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.

Feeding Operation with 2,400 Hogs a Permitted Use

By Eric Christianson

Hoffman v. Van Wyk

South Dakota Supreme Court, August 9, 2017

In Douglas County, South Dakota, Nicholas and Donnelle Hoffman learned that their neighbor, Douglas Leubke, received a permit to build a hog confinement unit from the Douglas County Zoning Administrator. The unit is designed to house up to 2,400 hogs. The permit was made public at a County Commission meeting on September 10, 2015 without any prior public hearings. When the Hoffmans approached the administrator about the issuance of the permit, the administrator explained that the building would house less than 1,000 animal units and therefore did not constitute an animal feeding operation as defined by the ordinance. Under the ordinance, 2,400 hogs is equal to 960 animal units. For that reason, the building is a permitted use not requiring a public hearing.

On March 14, 2016, the Hoffmans applied to the circuit Court for a writ of mandamus to compel the administrator and commission to revoke the permit and put a halt to construction. On June 3, 2016 the Court held a trial and held that the facility was neither a “farm,” “ranch,” nor “orchard” and therefore did not fall under any of the permitted uses of the land. Despite this fact, the Court stated that a writ of mandamus could not be used to undo an act that had already been completed. Both the Hoffmans and the zoning administrator appealed.

The Supreme Court of South Dakota found the circuit Court had erred in holding that the facility was neither a “farm,” “ranch,” nor “orchard.” The ordinance defines farms, ranches and orchards as:

An area of twenty five (25) acres or more which is used for growing usual farm products, vegetables, fruits, trees, and grain, and for the raising thereon of the usual farm poultry and farm animals such as horses, cattle, hogs, and sheep, and including the necessary accessories used for raising, treating, and storing animal products raised on the premises; but excluding an Animal Feeding Operation.

The Hoffmans allege that Leubke does not use the additional land around the facility for growing grain or farm products in addition to feeding hogs; however Leubke does own the full 160-acre quarter section and grows crops on that land.

The Hoffmans also argue that the manure slurry storage pit under the confinement unit violates setbacks established for animal waste facilities. According to the code, such a facility, “shall be no closer than two (2) miles from… the Corsica Lake Recreation Area, and one half (1/2) mile from any… residential dwelling” The facility is less than two miles from the Corsica Lake Recreation Area and less than a half mile from the Hoffman’s residence. The Court interpreted this ordinance to apply only to Animal Feeding Operations not the permitted farm use in this case.

Finally the Hoffmans argued that the hand drawn plan submitted by Leubke to the administrator was insufficiently detailed to allow the administrator to issue the permit. The drawing was not detailed nor drawn to scale. The Court does appear to agree that the administrator had no discretion to approve a permit without all the required information, but finds that this is “ultimately beside the point.”

The Court finds that, “it is clear that the facility was a permitted use under the ordinance as part of a farm or ranch.”

Short-term rentals not allowed in R-1 residential district in Wisconsin county

by Andrea Vaage

Vilas County v. Accola
Wisconsin Court of Appeals, May 12, 2015

The Accolas own a home on Rosalind Lake in Vilas County, Wisconsin, which is not their primary residence. The property is zoned R-1 Residential, which allows the following permitted uses:

  • Single-family detached dwelling units, including individual mobile homes, which meet the yard requirements of the district.
  • One non-rental guesthouse, which may be occupied on a temporary basis.
  • Parks, playgrounds, golf courses and other recreation facilities.
  • Home occupations.
  • Essential services.
  • Hobby farms.

The Vilas County zoning ordinance also includes an R/L Residential Lodging district. The purpose of the Residential/Lodging District, as stated in the ordinance, is to “provide for areas with primarily low-density residential use, but with some mixing of low-density Transient Lodging.” Transient Lodging is defined as “a commercial lodging establishment, which allows rental of sleeping quarters or dwelling units for periods of less than one month.” The R/L District lists the following permitted uses:

  • All uses permitted in the R-1 District.
  • Bed and breakfast establishments.
  • Resort establishments with no contiguous multiple-family dwelling units.
  • Rental of residential dwelling unit.

Shortly after purchasing the property the Accolas began advertising the property for rent on the internet for stays as short as two days. The County advised the couple that single-family residences in the R-1 district could not be rented for less than one month. In response, the Accolas established a corporation called Better Way to Live. The couple had people staying at the property “donate” to the corporation for cleaning, utility, and other expenses, and allegedly gave the remainder of the donation to charity. The County determined that donating posed no functional difference from renting the property. The circuit court enjoined the Accolas from renting the Rosalind Lake property for durations of less than thirty days, and the Accolas appealed.

The property is located in the R-1 residential district, which allows single family detached dwelling units, but makes no mention of whether renting the unit is allowed. The County asserted that rentals under one month were prohibited in the R-1 district because they are specifically permitted in the R/L district. Thus, if short-term rental was allowed in the R-1 district, then the additional language in the RL district ordinance would be meaningless.

The Court of Appeals agreed with the County.  When the R-1 district regulations are read in context with the R/L regulations, the only reasonable conclusion is that the phrase “rental of residential dwelling unit” in R/L refers to rentals of residential dwelling units for periods of less than one month.  The zoning ordinance unambiguously permits in the R/L district both: (1) the rental of single-family detached dwelling units for periods of less than one month; and (2) all uses permitted in the R-1 district, which includes single-family detached dwelling units. “If the Accolas were correct that the rental of single-family detached dwelling units for periods of less than one month was a permitted use in the R-1 district, then the section of the R/L district regulations permitting the rental of single-family detached dwelling units for periods of less than one month would be superfluous because all uses permitted in the R-1 district are already permitted in the RL district.”

The Court affirmed decision granting summary judgement to the County.

Single-family residential district provisions construed to allow short-term rentals

by Hannah Dankbar

Heef Realty and Investments, LLC & Sandra Desjardin v. City of Cedarburg Board of Appeals
Wisconsin Court of Appeals, February 4, 2015

In September 2012 two homeowners received citations for renting out their homes on a short-term basis. They appealed the citations, but their challenges were denied by the City of Cedarburg Board of Appeals (BoA), which concluded that the Cedarburg zoning ordinance did not allow the short-term rental of homes in a single-family residential district. The homeowners sued.  The question before the court was whether short-term rental is a permitted use of property in a single-family residential district.

The zoning ordinance in question reads in part:

RS-5 SINGLE-FAMILY RESIDENTIAL DISTRICT

(b)     Permitted Uses.

(1)     Single-family dwellings.

(2)     Family day care home.

(3)     Foster family home.

(4)     Community living arrangements which have a capacity for either (8) or fewer persons served by the program.

(5)     Essential services.

Zoning Code art. C, § 13-1-46.  Thus, the Ordinance lists “single-family dwellings” as a permitted use in a “single-family residential district.”

The BoA argued that to qualify as a single-family dwelling under the ordinance the property must be the occupant’s established residence.  The owners, on the other hand, argued that the plain language of the ordinance permits a short-term rental, that ambiguity in the ordinance must be resolved in favor of the free use of property, and that Wisconsin case law and that of other jurisdictions makes it clear that short-term rentals are a permitted use of a single-family dwelling.

The Court of Appeals sided with the owners.  It looked to a prior Wisconsin case in which the issue was a time-share, where thirteen families would own the property and each would use it for four weeks per year.  The court in that case reasoned that the use constituted a single-family dwelling because only one family would be staying in the property at a time.  According to the court the same reasoning holds true for short-term leases: the property will only be used by family at at time.  The ordinance does not require occupancy over a period of time, and the BoA cannot arbitrarily impose such a restriction.  Construing the ordinance in favor of the free use of property demands that short-term rentals be allowed in the city’s RS-5 district.

RV a permissible accessory use in R-1 district when principle use of lot is for “recreation”

by Hannah Dankbar

Schultz v Mende, et al. and City of Madison Lake
Minnesota Court of Appeals, December 8, 2014

In July 2007 the Mendes applied for a Conditional Use Permit (CUP) to build a boathouse on their property in the City of Madison Lake, Minnesota. The city council approved and issued the permit “with the condition that at the time of sale conditional use will be reviewed” and that the use follow all applicable provisions of the zoning code. In April 2008 the city found out that the Mendes were selling the property. The city sent a letter to remind the Mendes that the property could only be used as explicitly described in the CUP, and the CUP did not allow for human habitation of the property. Chapter 5, Subd. 4(b)(1)(D) of the city ordinance provides that boathouses cannot be used as a dwellings and cannot contain sanitary facilities.

In Spring 2008 Schultz bought the property from the Mendes believing that he could park a RV or camper on the property to sleep in while using the boathouse. The city told Schultz that, “since the conditional use was granted solely for a boat house and not for any type of residential use, parking a recreational vehicle on this property is a violation of the conditional use permit and an illegal use.” In February 2009, the city reiterated this statement. In August 2009 Schultz asked to amend the CUP; the city denied the application.

In response Schultz brought an action against the Mendes arguing that they misrepresented the use of property. The Mendes responded by filing a complaint against the city, saying that the city’s position was unconstitutional and unenforceable and asked for a declaratory ruling to allow for an RV on the property. The district court found that the zoning ordinance did not preclude the use of an RV on the property, the RV being “clearly accessory and incidental to the primary purpose of the property, which is recreation.” The city appealed the decision.

The property is in an R-1 residential district, which generally allows for “low-density, single family residences and directly related complimentary uses.” The General District Provisions prohibit an individual from dwelling or residing in an “accessory building.” An “accessory building” is defined as “[a] use incidental to and on the same lot as a principal use.” The property does not meet the minimum size requirements to meet the standard for single family housing.

The city considered the RV an accessory building. The district court disagreed with this definition, stating that “buildings” is limited to permanent structures. On appeal the city argued that the district court substituted their own definition for what is provided for in the ordinance. The Court of Appeals agreed that there is room for interpretation in the definitions provided by the ordinance; however, in a separate section of the ordinance “recreational vehicle” is defined as “a vehicular portable structure used for amusement, vacation or recreational activities.”  The Court of Appeals determined that implying that recreational vehicles are buildings, when recreational vehicle is specifically defined in the code is an improper interpretation of the ordinance.

The parties disagreed over the principal use of the property. Schultz and the Mendes say that the principal use is recreation, while the city claims it is the boathouse structure. The Court of Appeals agreed with the district court’s conclusion that the principal use is recreation. Given that the principal use of the property is recreation, the question then becomes whether the recreational vehicle is an allowable accessory use.  The city argued that the recreational vehicle could only be used for storage (and not sleeping) because the boathouse – a facility for storing boats – was the principal use.  Given the courts previous conclusion that the primary use was recreation, the city’s argument was inappropriate.  Under a plain reading of the ordinance, both RVs and boathouses are permissible accessory uses to the primary recreational use.  RVs are accessory uses as long as they carry a current registration and are in “operable condition.” Boat houses are also allowed as long as they are not “designed or used for human habitation” and do not “contain water supply or sewage treatment facilities.”

Because the zoning ordinances are ambiguous and the city’s interpretations leads to an “absurd result” the Court of Appeals upheld the district court’s ruling in favor of the Mendes.

 

 

Existing landscaping insufficient to meet ordinance buffer standards

by Hannah Dankbar

Schall v City of Williamston
Michigan Court of Appeals, December 4, 2014

William and Melanie Schall brought suit to compel their neighbors, D&G Equipment, Inc., owned by Elden and Jolene Gustafson to comply with the City of Williamston’s zoning ordinance that requires a special use permit to allow outdoor display of farm implements for sale.  The ordinance also requires a landscaped buffer zone to shield plaintiffs’ property from the sales display. The Schalls sought a writ of mandamus to compel the city and its contract zoning administrator to enforce the ordinance. The trial court found that the Gustafson’s use of their property violated the city’s zoning ordinance and ordered for the zoning administrator to enforce the ordinance.

As an initial matter the Court of Appeals affirmed that the Schalls had standing to bring the suit.  As abutting neighbors, the Schells “have a real interest in the subject matter of the controversy.  Nothing in state law indicates that private parties are limited in their ability to ask the court to abate a nuisance arising out of the violation of a zoning ordinance.

The requirements for a landscape buffer are defined in § 74-7.101 as “a minimum 15 feet wide” and “a staggered double row of closely spaced evergreens (i.e., no farther than 15 feet apart) which can be reasonably expected to form a complete visual barrier at least six feet in height within three years of installation.” The planning commission can only modify this requirement with “a written request identifying the relevant landscape standard, the proposed landscaping, how the proposed landscaping deviates from the landscaping standard, and why the modification is justified.”

In the present case, there was no “written request” to modify the ordinance standards. Even assuming that the site plan and the zoning administrator’s written and oral submissions to the planning commission were sufficient to meet this standard, and that the modified landscape included utilizing existing vegetation as part of the buffer, it must “achieve the same effect as the required landscaping.” The minimum standards of the ordinance apply except if the standard is reached with existing vegetation.

At the time of the lawsuit the buffer did not meet the standard, but the question became whether the buffer will meet the standard in three years. Based on its review of the expert testimony the Court of Appeals agreed with the trial court’s conclusion that the landscaping could not meet the standards of the ordinance and, therefore, that the Gustafsons were in violation of the zoning ordinance.

The zoning ordinance is clear and unambiguous and the trial court did not err in granting  summary disposition by finding no material disputed fact that defendants’ buffer failed to comply with the zoning ordinance and therefore was an abatable nuisance per se.

 

In Montana, prohibiting specific building materials is matter for building codes, not zoning ordinance

by Hannah Dankbar

City of Helena v Svee
(Montana Supreme Court, November 25, 2014)

In January 2009 the Helena, Montana City Commission amended its zoning ordinance to create a wildland-urban interface district (WUI district). The district overlays the City’s other zoning districts.  The WUI district, in part, provides:

A. Structures located within the wildland-urban interface district may not have exposed, wooden roofing materials, whether treated or untreated, and must have noncombustible or fire resistant roofing materials that are rated Class C or higher in accordance with ANSI/UL 790 or ASTM E 108 or any equivalent test.

B. Existing roofs that undergo renovation, alteration, or repairs that involve more than ten percent (10%) of the square footage of the affected roof plane must meet the requirements of this chapter. If the renovation, alteration, or repair involves more than fifty percent (50%) of the square footage of the area of the entire roof, then the entire roof must comply with the requirements of this chapter.

The Svees received notice that their homeowners insurance would be canceled because of the condition of their roof. Due to personal financial limits, the Svees repaired the part of the roof in most need of improvement. The project of replacing old wooden shingles with new ones began on August 12, 2011. On August 15, 2011 a city building official issued a stop work notice for the project, but the project was completed by the time the Svees received the notice. On September 8, 2011 the City filed criminal complaints against the Svees for re-roofing without a permit, these charges were later dismissed. On November 7, 2011 the City initiated a civil suit against the Svees in addition to the criminal charges. On December 6, 2011 the City filed a six-count complaint for failure to obtain a building permit; violation of the International Residential Code by failing to obtain a building permit; violation of the International Residential Code by installing new roof covering over an existing roof covering; violation of the International Residential code by using excess applications of roof covering; violation of Helena City Code by using illegal roofing materials; and creating a public nuisance. The Svees challenged the limitations the WUI district places on roofing materials, but not the creation of the WUI district itself.

Both parties moved for a summary judgement, and the City dropped all of the complaints except for the complaint citing a violation of the WUI Ordinance. The Svees claimed that the Ordinance was invalid on statutory and constitutional grounds. The District Court did not address the constitutional claim, but declared, “the Svees’ claims seeking a declaration that the City had no legal authority to adopt or enforce Helena City Code § 11-41-2 . . . are GRANTED.”  The City filed an appeal and the Svees filed a cross-appeal challenging the dismissal of their constitutional argument and the denial of attorney fees.

The first issue discussed was whether the District Court was wrong to judge § 11-41-2 as an impermissible building code, rather than a zoning ordinance. The Montana Legislature authorized cities and counties to adopt only building codes that had been created by the Department of Labor and Industry . Zoning ordinances are left to cities and counties. The District Court ruled that, “the creation of the WUI zoning district was nothing more than the adoption of  a building regulation under the guise of a zoning ordinance.” However, the Svees did not challenge the zoning district as a whole; they only challenged one section. District Court only overturned one section (§ 11-42-2). This Court found that this section of the WUI ordinance oversteps the bounds of zoning ordinances by defining which building materials can be used.

The third issue is whether the District Court erred in denying and dismissing the Svees’ constitutional arguments. The District Court ignored these claims because, the summary judgment,  “resolve[d] the case in the Svees’ favor on non-constitutional grounds.” Montana Supreme Court “has repeatedly recognized that courts should avoid constitutional issues whenever possible.” The Court agreed with the District Court on this issue.

 

**Didn’t include concurring opinion.

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.

 

 

Conditional rezoning agreement limits processing and retail sales to deer season

by Kaitlin Heinen and Gary Taylor

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

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

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

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

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

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

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

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

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

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