Two bills bring significant changes to county zoning in Iowa

By: Eric Christianson

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

HF 2512 contains three major changes:

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

Agricultural Exemption Process

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

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

Iowa Code 335.2

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

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

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

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

HF 2512

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

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

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

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

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

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

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

Comprehensive Plan Amendments

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

Agricultural Experiences

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

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

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

HF 2477

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

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

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

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

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

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

Registration info for 2020 Intro to Planning and Zoning Workshops **Now Online**

Update: We are cancelling all remaining in person workshops this year as we are prioritizing the health and safety of all. We are now opening registration for four online workshops.

Please register at least one week in advance as we will be mailing the workbooks to you so you can follow along and take notes as we move through the presentation. Participation will require a computer with a strong internet connection, but all interaction will take place through chat and interactive questions on the screen. No microphone or camera are necessary for participation.

For now we are capping each of these workshops at 25 individuals so register soon. We may add more dates in the future depending on demand. The cost to participate is $25 per registrant. Thank you for your flexibility.

The dates and times for these workshops are:

  • Thursday April 23, 2020                 5:00-8:30 pm
  • Tuesday April 28, 2020                   1:00-4:30 pm
  • Thursday April 30, 2020                 5:00-8:30 pm
  • Saturday May 2, 2020                     1:00-4:30 pm

To register for the Spring 2020 Introduction to Planning and Zoning workshops please click here.

Pandemic Checklist for Local Governments

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

State Road Funding Impacts Related to Covid

In addition to the ongoing health and economic crisis we face in dealing with Covid-19 and its effects, state and local governments have to consider some of the downstream effects on other services and projects. The Iowa Department of Transportation has already begun to share with local governments some of the impacts that might be felt on state and local road funding.

One major impact that we can observe in real time is the 40% decline in road use. That will cause a decrease in Road Use Tax Fund (RUTF) revenues that local governments rely on for street funding. On the other hand, federal relief or stimulus funds might be made available as part of a future relief or stimulus package later this spring. More details will come in the future. For now, local governments should examine their current road budgets and Capital Improvements Plans while remaining nimble and responsive in rapidly changing fiscal conditions.

You can read more details in this article in the Sioux City Journal.

USDA Rural Development Launches COVID-19 Resource Webpage

USDA Rural Development has launched a COVID-19 resource page to keep their customers, partners, and stakeholders continuously updated on actions taken by the Agency to help rural residents, businesses, and communities impacted by the COVID-19 outbreak.

Visit www.rd.usda.gov/coronavirus for information on Rural Development loan payment assistance, application deadline extensions, and more.

Community Engagement During COVID-19

By: Erin Mullenix

Now as much as ever, it is important to make efforts to engage our communities and neighborhoods during the COVID-19 pandemic.  

While the State of Iowa has provided guidance and temporary allowances for electronic public meetings during the COVID-19 pandemic, those electronic meetings and many digital local opportunities are important.  Across Iowa, local Council meetings, budget and other hearings, and working sessions are being held electronically.  Local communities must still follow the notification and other guidelines of the Iowa Public Information Board.

Over these last weeks, many cities and communities are also beginning to make other programming opportunities digital experiences.  For example, many libraries are offering digital children’s programming, learning experiences, and even loaning and checking-out laptops and computing resources to community members.  Some zoos and other local destinations are connected via social media and are offering virtual tours or activity times.

My own community has also put together near-daily activities, just to keep people engaged, while still allowing social distancing.  Most, if not all, of these activities are free and open to all for participation.  For example, they have created a schedule of items to be placed on front doors or windows that can be counted in a scavenger hunt later on afternoon walks (with social distancing).  Shamrocks, flowers, animals, emojis, funny faces, teddy bears and sidewalk chalk fill the calendar for several weeks.  There was also a “music” night, where anyone was invited to join in playing a designated song at a designated date and time.  And, many nights each week, our community joins the 8:00 wave of light, bringing a flashlight out to their front door or porch to show a sense of community.  

Our school district also created a “parade of teachers” who volunteered to drive throughout the community honking and waving at school-aged kids.  In addition, our school district is preparing some optional educational materials for kids who are at home over the next weeks. These will likely just be a start to the many activities that will be coordinated by social media just to keep folks engaged during this time.  Our local communities will stay strong together, while continuing to provide essential services to citizens.  A dash of fun and social-distance-friendly activates can help us feel connected while we stay at home.

Governor Reynolds COVID-19 Declaration: temporary suspension of penalty and interest on late or delayed property tax payments, etc.

By: Erin Mullenix

On March 20th, Governor Kim Reynolds issued an additional COVID-19-related declaration which addressed several local government and taxpayer concerns, including temporarily suspending penalty and interest on late or delayed property tax payments.  It also temporarily suspended some evictions under the Iowa UniformResidential Landlord and Tenant Act or the Manufactured Home Communities or Mobile Home Parks Residential Landlord and Tenant Act in certain circumstances.

This declaration also specifically provides guidance for public meetings or hearings by electronic means to improve the functions of government while maintaining social distancing practices.  It also addresses guidance for filling local vacancies within a certain period of time.

The full text of the Governor’s Declaration is available: https://governor.iowa.gov/press-release/gov-reynolds-signs-additional-state-public-health-emergency-declaration-will-hold.

Utility Billing for Local Government During COVID-19

By: Sara Shonrock

As social distancing becomes a normal way of life, local governments are struggling with the immediate shutdown of all “non-essential” services and the likely economic impact resulting from job losses of residents. 

As a city government, there are still essential services that are needed during this time including electric, gas, and sewer and water.  These services, especially water and sewer, are most often provided by the municipal government and in the face of an unsure landscape for citizens, many cities are shifting the way they do business to meet the needs of their residents.

Unpaid utility bills are usually charged a late fee, and in most cities, subject to a shutoff notice.  For many cities, this is the only way to continue to provide these services on a tight budget.  COVID-19 has changed the way that we view such services and the way that we can deliver them as well.  

On March 13, 2020 the Iowa Utilities Board issued an emergency order directing all electric and natural gas utilities in the state to cease disconnection of residential service due to nonpayment.  The IUB on March 19, 2020 urged all utilities to refrain from utility service shutoffs, especially water service, during the coronavirus outbreak and supports the IDHR to extend the LIHEAP application period to May 31. While electric and gas are often required to stay on during the winter months, the order extends the moratorium on shut-offs to May 1, 2020.  The emergency order gives information as to gas and electric specifically but does state that water should also not be shut off during this time.

Many city utility services are funded strictly by payments for use from residents.  The guidelines for shutoffs often come after one month of missed payment to try and prevent a large bill that will likely not be paid. Cities often charge a late fee a few days after the bill due date goes unpaid.  Often after a two-week period, cities will then choose to put a door hanger alerting the resident that they are going to be shut off.  

Cities that choose to keep water on during this time have a few options.  

  • The first is to continue to charge late fees.  In this way, they may still collect additional monies while trying to assist residents with staying connected in an unsure time.  
  • The city can choose to try and work with residents and landlords.  Landlords whose renters are not paying their utility bills may begin to receive the bills for the rental property.   
  • The city can choose to continue to use the door hanger method and decide whether or not to charge late fees.  

While many cities may choose to not disconnect utilities during this time, there will still be options for recourse after the fact with the continuation of late fees.  Cities will continue to have recourse to property liens for unpaid fees and bills when recovery does occur. 

Suspension of Bank Foreclosures during the COVID-19 Public Health Emergency

By: Jon Wolseth

The economic and social uncertainty caused by the COVID-19 pandemic exacerbates the situation of homeowners already finding themselves in straitened financial circumstances.  For those households in the midst of foreclosure proceedings, the fear of losing one’s home during the public health crisis compounds an already difficult situation.  Recent steps have been taken at the state and federal levels to provide homeowners in the midst of foreclosure with some relief.  

Bank foreclosure proceedings are being suspended in Iowa, an action taken in a recent (March 22, 2020) State Public Health Emergency Declaration from Governor Reynolds.  Section 2 of the declaration reads: 

SUSPENSION OF FORECLOSURES

SECTION TWO.  Pursuant to Iowa Code §§ 29C.6(6) and 135.144(3), and in conjunction with the Iowa Department of Public Health, I temporarily suspend the regulatory provisions of Iowa Code chapters 646, 654, 655A, and 656 allowing for the commencement of foreclosure proceedings, or the prosecution of ongoing foreclosure proceedings, on residential, commercial, and agricultural real property located in the state of Iowa. Suspension of these provisions shall apply during the duration of this Proclamation or any future extension of this suspension.

A.   Nothing in this section shall be construed as relieving any individual of their obligation to make mortgage payments, or to comply with any other obligation that an individual may have under a mortgage.

B. The Iowa Division of Banking and the Iowa Division of Credit Unions are hereby directed to immediately engage with banks, credit unions, mortgage bankers, and mortgage services to identify any tools, means, or methods that could be used to relieve Iowans from the threat of foreclosure.

In particular, this action provides relief for homeowners who may have been at risk of foreclosure in the midst of the public health emergency.  Affected homeowners are encouraged to proactively reach out to their mortgage lenders to pause proceedings.  

At the federal level, the U.S. Department of Housing and Urban Development announced a 60-day moratorium on foreclosures and evictions for FHA-insured single family homeowners. The moratorium began March 18, 2020. Read the full text of the press release

U.S. Government-sponsored mortgage enterprises Fannie Mae and Freddie Mac have also released plans of assistance for their lendees whose ability to make mortgage payments is impacted by the COVID-19.

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