Category: Zoning ordinance interpretation

Error to interpret list of accessory uses as an exhaustive list precluding other uses

by Kaitlin Heinen

City of Orono v. Jay T. Nygard, et al.
(Minnesota Court of Appeals, October 22, 2012)

Jay and Kendall Nygard live in a district of the City of Orono zoned as One-Family Lakeshore Residential (LR-1B). On October 13, 2010, the Nygards applied for a permit to erect a wind turbine on their property. Two days later on October 15, the City denied the Nygards’ permit application in a letter from the City’s Planning and Zoning Coordinator, which stated that wind turbines are not a permitted accessory use on property zoned LR-1B. On November 12, 2010, city employees observed a concrete footing being installed on the Nygards’ property, which they believed was being done to erect the wind turbine despite the City’s denial of their permit application. On November 16, 2010, the City issued a stop-work order and demanded that the Nygards remove the concrete footing. The Nygards disregarded this order and completed the wind turbine by February 2011.

In March 2011, the City filed suit in district court for a declaratory judgment that the Nygards’ wind turbine was not in compliance with the City’s zoning  ordinance.  In April 2011, the Nygards’ filed a separate suit against the City, challenging the City’s denial of their permit application. The district court consolidated the two cases. In March 2012, the district court granted the City’s motion and denied the Nygards’, holding that the City’s zoning ordinances clearly set forth a list of lawful accessory uses, which does not include wind turbines. The Nygards appealed to the Minnesota Court of Appeals.

The Nygards argue that the City misinterpreted 78-329 of the Orono City Code as setting forth an exhaustive list of lawful accessory uses, thereby forbidding wind turbines on LR-1B property. In contrast, the Nygards argued that section 78-329 is a non-exhaustive list and that their wind turbine is within the general definition of accessory uses. In reviewing the City’s interpretation of its zoning ordinance, the Minnesota Court of Appeals considered three principles: “First, courts generally strive to construe a term according to its plain and ordinary meaning…Second, zoning ordinances should be construed strictly against the city and in favor of the property owner…[Third,] A zoning ordinance must always be considered in light of its underlying policy.”

In regards to the first principle, the zoning ordinance should be interpreted according to its plain and ordinary meaning. It is reasonable to interpret 78-329 to mean that the nine accessory uses listed are the only lawful accessory uses in the LR-1B district. But the Nygards argue that 78-329 also can be reasonably interpreted to allow accessory uses that are not listed because the language of section 78-329 is different from the language of nearby sections of the zoning code, which are more explicit in foreclosing the possibility of other allowed uses.  Section 78-329 – the section in question – states that “the following uses shall be permitted accessory uses.”  Section 78-327, in contrast, states that “no land or structure shall be used except for” a list of specified uses, while another section – Section 78-566 – states that “no accessory structure or use of land shall be permitted except for one or more of the following uses.” Because 78-329 does not use the same type of strong language to negate the possibility of lawful accessory uses not listed within the ordinance, it is reasonable to interpret 78-329 more broadly to allow other accessory uses. Furthermore, the city conceded that it has interpreted 78-329 in other past situations to allow accessory uses that are not expressly mentioned. For example, the City has allowed structures such as flagpoles, basketball hoops or clotheslines within the LR-1B district.

In light of the City’s inconsistent interpretation of 78-329, the Minnesota Court of Appeals did not uphold the City’s denial of the Nygards’ permit application.  It ruled that the City erred when it denied the Nygards’ permit application, and that the district court also erred in entering judgment in favor of the City. The Minnesota Court of Appeals reversed the district court ruling and remanded the matter to the City for further consideration of the Nygards’ permit application.

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Greyhounds are dogs “normally associated with domestic enjoyment” under Dubuque County zoning code

Gary Taylor

by Gary Taylor

Zenner v. Dubuque County Board of Adjustment
(Iowa Court of Appeals, October 3, 2012)

In July 2003 when the Zenners planned to purchase property in Dubuque County, they requested a variance from the 500-foot setback requirement for kennels. They wanted to build the kennels with a 200-foot setback from the surrounding residences.  After consulting with the county attorney, the Dubuque County Zoning Administrator advised the Zenners that the Kennel would not be allowed in the A-1, Agriculture district.  The district allows kennels, except that “no kennel shall be allowed to harbor, breed, train, buy, sell, exchange or offer for sale any animal to be used solely for attack purposes nor any animal not normally associated with domestic enjoyment.”  The ordinance also lists examples of the types of animals prohibited: “Such ban shall include but shall not be limited to jungle cats, venomous snakes or other reptiles larger than four feet in length, pit bulls, coyotes, wolves, foxes, skunks, deer or other similar wild animals.”  Undaunted, the Zenners went ahead with their plans, purchased the property, and built a kennel that violated the setback requirements for kennels.  Learning of this, the zoning administrator notified the Zenners that they were in violation of the ordinance.  The Zenners appealed the violation to the Dubuque County Zoning Board of Adjustment, which upheld the zoning administrator’s violation.  The district court upheld the decision. An appeal to the Iowa Court of Appeals resulted.

Starting its analysis by noting that a court “construes zoning restrictions strictly in order to favor the free use of property,” the Court of Appeals concluded that the county attorney misinterpreted the county’s zoning ordinance.  The county attorney based his conclusion that the kennel was raising greyhounds  “not normally associated with domestic enjoyment” on the fact that the dogs were for commercial sale. However, the Court pointed out that the zoning ordinance identifies another type of kennel – “kennel, hobby” – that does not include commercial activity or breeding or sale for a consideration.  The implication is that use of the word “kennel” by itself could not be meant to exclude commercial kennels.  “Following the county attorney’s analysis could lead to a determination that any kennel raising dogs for show instead of as pets would not be permitted because it would be ‘a non-exempt commercial use.'”

To further support this conclusion the Court pointed to the existence of Iowa Code 99D.27 – which requires dog tracks to maintain a racing dog adoption program – as “evidence public policy and law in Iowa considers greyhounds to be normally associated with domestic enjoyment.”  The Court also noted that the only dog listed in the banned animals is “pit bull.”  According to the Court greyhounds “possess [none] of the characteristics associated with the litany of prohibited animals.”

The Court of Appeals found in favor of the Zenners, reversing the district court.

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40-foot “rear yard” requirement is a setback requirement

by Kaitlin Heinen and Gary Taylor

Quin R. Feuerstein v. Sawyer County Board of Appeals
(Wisconsin Court of Appeals, August 14, 2012)

In 2008, the Feuersteins presented a certified survey map (CSM) to Sawyer County (WI) for approval. The CSM was denied by the Sawyer County zoning administrator, however, because a boat house on the lot was only 10 feet from the rear lot line, which the zoning administrator identified as such because it roughly paralleled the shoreline.  As a result, the administrator concluded that the 40 foot rear yard setback found in the zoning ordinance was required to the rear of the boat house (not the principal residence as urged by the Feuersteins). The Sawyer County Zoning Board of Appeals upheld the administrator’s decision.  The Feuersteins appealed.

The Feuersteins’ argument was that the zoning ordinance is ambiguous, and therefore must be construed in favor of private property owners. The Feuersteins argued that the ordinance is ambiguous because it does not define “rear lot line,” and that the Board could not reasonably conclude that the lot line behind the boat house was the rear lot line.  However, “rear yard” is defined as an “open[,] unoccupied space on the same lot with the building between the rear line of the building and the rear line of the lot and extending the full width of the lot,” according to SAWYER COUNTY, WI, ZONING ORDINANCE § 2.1(106). Additionally, SAWYER COUNTY, WI, ZONING ORDINANCE § 18.4(a) states that 40 feet of yard is required in areas zoned as RR-1. The Feuersteins’ argument that the ordinance’s use of the phrase “yard required” instead of “setback” created ambiguity was rejected by the court.

The Feuersteins also argued that § 2.1(106)’s reference to building in the singular adds to the ordinance’s ambiguity; asserting that since their cabin is the principal building on their lot, then it is sufficiently distant from the lot line for their proposed CSM to comply with the ordinance.  However, The Wisconsin Court of Appeals disagreed, The ordinance clearly states in § 2.1 that references made in the singular include the plural. Additionally, SAWYER COUNTY, WI, ZONING ORDINANCE § 4.26(1) states that a permanent, roofed structure not attached to the principal building shall conform to the setback requirements.

The Court of Appeals stated that the setback requirements unambiguously apply to the Feuerstein’s boat house: “The ordinance is evidently clear when read as a whole in its requirement of a 40 foot setback from even the accessory buildings on the lot in question.”  The Wisconsin Court of Appeals affirmed the Board’s decision in upholding the order for the Feuersteins to comply with the 40 foot setback of the rear lot line from their boat house.

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