COVID-19 Business Resources

We just wanted to share this resource list posted by the Buchanan County Economic Development Commission. This is a great example of what a local community can do to streamline access to resources available to businesses. Check their page out for more information we have also reposted their links below for ease of access. Let us know in the comments if you have any additional resources to share.

Business and Industry Resources and Information Relevant to COVID-19

The COVID-19 (Corona Virus) has drastically impacted our personal lives as well as businesses and industries throughout Buchanan County, the state, the nation and the world.  We at Buchanan County Economic Development want to provide you relevant links to assist businesses and industries with the most relevant information available.  Below you will find links that we hope can answer your questions and help to guide you through this unprecedented time.

Links to relevant sites and articles:

Links to Iowa Department of Health and COVID-19 update sites

Information and Legislation From Gov. Reynolds Concerning COVID-19

City Budget Resources

By: Erin Mullenix

In uncertain economic times, city budgets are undoubtedly a challenge. These times of pandemic and economic decline can add inherent volatility and uncertainty to the local budget.  

Fortunately, the State of Iowa’s Department of Management has granted extensions to city budget filing deadlines for all cities.  City budgets are now due April 30, 2020, unless the city has received individual correspondence with a later date specified.  Each city should have been emailed by the Iowa Department of Management with additional details.  If no such email was received, contact the Iowa Department of Management. Click here to view the memo from the Iowa Department of Management. 

In addition to the change in budget deadline, cities should keep in mind the new budget requirements enacted last year during the 2018-2019 legislative session.  Those changes include the addition of a second public hearing process related to new public reporting requirements.  Visit the Iowa Department of Management, or Iowa League of Cities websites for more information.

Remember that Iowa State University Extension’s Office of Community and Economic Development has a number of helpful budget resources available to you.  Visit the Iowa Government Finance Initiative (IGFI) and Indicators Portal websites for a host of local government resources, including custom Annual Fiscal Conditions reports for each city and county. 

Options for Internet Access in Rental Housing

By: Abigail Gaffey

Many parents are suddenly finding themselves responsible for their children’s education at home. For most of us this is an inconvenience, but for low-resource populations it can be an impossibility. Rental property managers, particularly of apartment complexes housing families, can help by checking on the internet needs of their tenants.

Large apartment complexes, both market rate and government-assisted units, often have publicly-available wi-fi in a shared community room, but the need for social distancing may make using it an unsanitary prospect whether through congregating in one spot or touching a shared computer. A better temporary solution may be to share the internet password for the next couple of months. Another possibility would be to purchase a mobile hot spot for each floor of the building.

Some will argue that not everyone will use the wi-fi responsibly and certainly that is true, but in the interim the need for students to continue their educations, the surge in tele-health appointments that will keep people out of doctor’s offices and non-emergency hospital visits, the need for people to file for Unemployment benefits online, and shifting as many people as possible to paying bills online rather than in-person may outweigh the possibility that someone might watch a few too many YouTube videos.

If providing wi-fi is completely beyond the landlord’s budget, at a minimum landlords can let their tenants know about low-cost internet services. Several Iowa telecom companies are offering reduced-price internet start-up packages to new customers. In central Iowa, Mediacom offers the Connect2Compete package that offers high-speed internet packages for as low as $10 per month: https://mediacomcable.com/about/news/mediacom-brings-internet-access-to-low-income-students/ The same Connect2Compete program is also available to Iowans served by Cox Cable: https://newsroom.cox.com/cox_internet_changes_to_assist_students_-_remote_workers Iowans with Sparklight (formerly CableOne) are being directed to Spectrum Charter which is making 60 days of internet service free to households with student. However, it isn’t available in all zip codes in Iowa, so potential customers will need to check on available for their location: https://home.sparklight.com/news/read/category/news/article/variety-charter_offers_free_broadband_to_all_households_wi-rpenskemc

In the coming days, we may see even more companies and rural telecom providers coming up with solutions that help not just students, but also folks now working from home. An example of an innovative solution is Northeast Nebraska Telephone Company. NNTC has set up a free pandemic wi-fi. Customers can drive up to within 100 feet of one of 22 locations to connect. A mobile hotspot extender can also be used to pick up the signal farther away: https://nntc.net/nntc-response-to-covid-19-coronavirus/

One last idea property managers can explore with their tenants is working with the local school district if a tenant family is struggling with internet connectivity for their young students. These interactions may also help a property manager identify a family in crisis needing other social supports at this tenuous time.

Changes to the BLUZ Blog

We are adjusting our services here in CED to continue to provide education and support while maintaining social distancing for the health and safety of our staff, participants, volunteers, and communities.

We are going to use this blog to post information and resources for our Iowa communities including businesses, local governments, and other community groups.

The Housing Assistance Council has compiled a list of Resources Related to Coronavirus and Rural Housing:

http://www.ruralhome.org/whats-new/mn-whats-new/45-announcements/1801-statement-and-resources-on-coronavirus#housing

A few resources for Small Businesses:

The Small Business Administration is offering loans to small businesses and nonprofits who have been impacted by COVID-19.  Businesses and nonprofits can receive up to $2 million in a low-interest loan.  For more information visit https://www.sba.gov/disaster-assistance/coronavirus-covid-19

Upon request from the Governor, the Small Business Administration will under its own authority issue an Economic Injury Disaster Loan Declaration. The Restaurant Workers Relief Foundation has created as COVID19 relief fund for workers impacted by COVID19 information can be found here: https://www.restaurantworkerscf.org/news/2020/3/15/resources-for-restaurants-and-workers-coping-with-the-covid-19-emergency

The ONE fair wage has created a restaurant worker and tip worker fund as well and information on that can be found here: https://ofwemergencyfund.org/

Information and eligibility requirements for a Bartender Emergency Program can be found here:https://www.usbgfoundation.org/beap?fbclid=IwAR3p9y-eXg1bhTGGL-snMh4XS6S4ydHxbu-mSTjYNMtDGrTiXsEvXIhT7KY


The National Restaurant Association has also compiled a list of resources and that can be found here:https://restaurant.org/Covid19

Local Officials Permissive Interpretation of Zoning Ordinance is Acceptable

by: Sarah L.C. Runkel

Gustavson v Board of Adjustment of Buena Vista County and Snyder
(Iowa Court of Appeals, September 12, 2018)

In 2016 Mark Snyder purchased a plot of land with an existing cabin. The same year, he demolished the existing cabin under permit, and applied for a zoning permit to construct a new cabin on that same property. Although the property was too small for a residential use under the code, the zoning administrator accepted that the lot was legally nonconforming, and was accepted by the zoning administrator.

Soon after Snyder was issued a compliance permit, his neighbors, Steve and Janelle Gustavson, filed a notice of appeal to the Board, claiming that no structure could be built on nonconforming lots. Upon appeal, the Zoning Board of Adjustment unanimously voted to uphold the zoning administrator’s issuance of the permit.

The Gustavsons filed a petition for writ of certiorari in district court, claiming that the Board acted illegally and arbitrarily. The district court dismissed the petition, upholding the Board’s decision, which the Gustavons appealed.

Nonconforming Use

Nonconforming use, buildings or lots are those which were legally established, but do not fit with the current zoning ordinance, typically due to subsequent changes in zoning. These legal nonconforming uses are allowed to continue. However, alterations to nonconforming property is often prohibited, unless, “the changes are not substantial and do not impact adversely on the neighborhood.” Stan Moore Motors, Inc. v. Polk County Board of Adjustment, 209 N.W.2d 50 (Iowa 1973).

This determination is the responsibility of the city or county staff. Aiding in such decisions, it has been determined that, “A zoning ordinance should not be extended by implication to prevent a use not clearly prohibited.” Arkae Dev., Inc. v. Zoning Bd. of Adjustment, 337 N.W .2d 884, 886 (Iowa Ct. App. 1983).

The ordinance in question states:

Nonconforming Lots: In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this Ordinance, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of this Ordinance. This provision shall apply even though such lot fails to meet the requirements involving area or width, or both, of the lot; [ …] shall conform to the regulations for the district in which such lot is located.

Buena Vista Cty.Code of Ordinances §6.1.9.105(2) (2003)

Ordinance Language

Language utilized to establish ordinances may impact community members beyond anticipated intent. Since Buena Vista County’s Code of Ordinances specifically states that lot size and shape shall not prohibit construction of a single-family dwelling where they are permitted, denial of said structure would fall under prevention of a use not clearly prohibited. It could be understood that if a dwelling existed and is destroyed then reconstruction is prohibited. It could also be understood that one could replace a pre-existing dwelling. In this case the permissive interpretation of the zoning administrator and the zoning board of adjustment is acceptable.

The Iowa Court of Appeals found no error with the district court’s dismissal of the petition for writ of certiorari. The cabin can stay.

Subdivision is a local, often subjective, decision

by: Sarah L.C. Runkel

Bussanmas v. Des Moines
(Iowa Court of Appeals, July 18, 2018)

In 2015, Nicholas Bussanmas purchased a 2.34 acre lot zoned in a residential district in Des Moines, IA with the intention of subdividing the land for development. In April 2016, the City Plan and Zoning Commission recommended denying the proposal of the three-lot plat based largely on objections from neighbors that the lot served as a natural watershed. The Des Moines City Council denied the subdivision request in June finding principally that subdivision of the land may have negative effects on stormwater flow in the neighborhood.

Bussanmas appealed the decision to district court and then to the Iowa Court of Appeals. The Iowa Court of Appeals confirmed the decision of the district court, agreeing that the Des Moines City Council presented reasonable evidence that the property should not be subdivided according to Iowa Code Section 354.8 and Des Moines Municipal Code’s subdivision regulations.

The Court of Appeals concluded that:

“The Council clearly considered all of the relevant evidence and balanced that evidence as required by section 354.8(1), including the interests of Bussanmas, the neighbors, and the City, and it determined Bussanmas’s preliminary plat must be rejected. We agree with the district court that there is sufficient evidence to support the Council’s decision to reject the preliminary plat.”

According to Iowa Code Section 354.8, governing bodies shall review proposed subdivisions based on reasonable standards and applicable ordinances. Approval of a proposed subdivision is contingent upon the proposal’s conformity to the comprehensive plan, a balance between the proprietor, future use, and the public interest.

Subdivision is a process delegated to local governments. The decision for approval or denial should be based on reasonable evidence and evaluated by the standards in the comprehensive plan and local ordinances. This leaves the scope of influencing factors open to the reasonable interpretation of the local elected body.

Statute of limitations does not bar enforcement of a court decree

By Eric Christianson

TSB Holdings, LLC v. City of Iowa City
(Iowa Supreme Court, June 1, 2018)

In the 1980s Wayne Kempf and his partners purchased six parcels on the north side of Iowa City. Their plan was to build an office building and five apartment buildings on the four-acre tract. After the completion of the office building, they began construction of an apartment building. Following neighborhood protests, the city revoked the building permit and then downzoned the area to single family residential. This lead to a number court fights culminating with a 1987 order by the Iowa Supreme Court, which read in part:

Kempf shall be permitted to proceed with the development of apartment buildings, as shown by the record in this case, to the extent that such buildings conform to the ordinances in effect prior to the 1978 rezoning… The [C]ity shall be enjoined from prohibiting this use of the property by Kempf. Further development or redevelopment of the property beyond that contemplated by Kempf as shown by this record and noted in this opinion, whether carried out by Kempf or future owners, will be subject to the amended ordinances above designated.

Kempf completed one apartment building but did not develop the other properties. Over time Kempf and his partners sold the properties to various other parties. Eventually TSB Holdings purchased all of the properties subject to that order. In January of 2013 TSB Holdings submitted a site plan to the City of Iowa City showing the development of new apartment buildings based on the 1987 court order. The City denied this plan, stating that it did not comply with current zoning.

On April 18, TSB submitted a new site plan, which proposed construction of apartment buildings on only the three lots which had not been developed subsequent to the 1987 Kempf order. The city also denied this plan, viewing it as materially identical to the January 31 site plan. The Iowa City Board of Adjustment also failed to issue a variance to KSB.

TSB claimed that this was a violation of the 1987 court order and appealed the city’s decisions. A district court found in the City’s favor, concluding in part that TSB was not a successor to Kempf and that the order was no longer applicable. TSP appealed to the Iowa Supreme Court.

Among other issues the court examined three questions that were determinative of the case.

  1. Is TSB Holdings a successor of Kempf?
  2. Is the original 1987 court order unenforceable because of the stature of limitations?
  3. Has a use already been established on the properties?

Is TSB Holdings a successor of Kempf?

The district court had found that TSB was not a successor because TSB did not buy the lots directly from Kempf and the lots were sold piecemeal and not as a single package.  The Supreme Court found that in this case those points were irrelevant. The decision ran with the parcels regardless of ownership changes in the meantime.

Statue of limitations/repose

Among the most significant elements of this ruling is the question of whether court orders such as the one issued in Kempf are subject to a time limit. In a recent decision, Dakota, Minnesota & Eastern Railroad v. Iowa District Court, the Iowa Supreme Court interpreted Iowa Code 614.1(6) to say that that court orders are subject to a 20 year statute of repose. Therefore, an action to enforce a judgment more than 20 years after it was entered was untimely.

In this case, TSB argued that 614.1(6) was a statute of limitations rather than a statute of repose. A statute of limitations limits how long after an event causing some harm, the “cause of action,” one can bring a suit. A statute of repose on the other hand would prevent the bringing of a suit if that harm, occurs after a defined time period. The difference is somewhat technical, but here is determinative of the outcome. Does Iowa law say (1) that the court order itself expires after a 20-year period, or (2) does a plaintiff have 20 years to file suit after that court order is violated? Did the clock start ticking in 1987 when this order was issued or in 2013 when Iowa City rejected TSB’s site plan?

The Iowa Supreme Court overruled its own interpretation from Dakota and held that the limitations period in  614.1(6) runs from the date when the “cause of action” occurs. Court orders do not themselves “expire” after 20 years. In this case the “cause of action” occurred in 2013, when the City enforced its current zoning ordinance despite the 1987 court order. Therefore, the case is timely.

Has a use been established?

Another question relevant to this decision concerns which of the lots had been developed and are now subject to the current ordinance. The evidence showed that Lots 10, 49, and 51, had no buildings on them at the time TSB submitted this site plan. Iowa City argued that because of electrical easements and other work that had occurred on at least some of those parcels, they have already been “developed” and the order is moot. They further argued that developing Lots 10, 49, and 51 would require work to be done on the other lots which were clearly already developed and are now subject to current law.

The court was unconvinced that anything less than the construction of a building would be considered development on the affected lots. Further the court ruled that any development that would have to take place on the lots which already have buildings on them would be unaffected by the order. That potential development is therefore outside the scope of this ruling.

 

The Supreme Court overruled the district court’ rulings and held:

  1. KSB is a successor to Kempf and benefits from the order.
  2. The statute of limitations does not prevent the enforcement of the 1987 Kempf decision.
  3. A use had not been established on all of the parcels subject to the decree.

While this decision does clarify some matters of law, the future of this development is not yet settled.

Iowa’s Right-to-Farm law constitutional, but limited in its application

This post is a summary of an article by Kristine A. Tidgren that first appeared on The Ag Docket, from the ISU Center for Agricultural Law and Taxation. See the full version here.

Honomichl v. Valley View Swine, LLC
Iowa Supreme Court, June 22, 2018

 

Iowa’s agricultural nuisance law has perhaps become a little clearer, albeit no simpler to apply. On Friday, June 22, 2018, the Iowa Supreme Court issued a key ruling analyzing the constitutionality of Iowa’s embattled right-to-farm statute, Iowa Code § 657.11(2). The immunity statute at issue, states:

An animal feeding operation, […] shall not be found to be a public or private nuisance […] However, this section shall not apply if the person bringing the action proves that an injury to the person or damage to the person’s property is proximately caused by either of the following:

a. The failure to comply with a federal statute or regulation or a state statute or rule which applies to the animal feeding operation.

b. Both of the following:

(1) The animal feeding operation unreasonably and for substantial periods of time interferes with the person’s comfortable use and enjoyment of the person’s life or property.

(2) The animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation.

The defendants in this case include the owner of two animal feeding operations in Wapello County. The units were constructed in compliance with DNR permits and setback requirement. The plaintiffs are neighboring homeowners who purchased their properties before the units were built. The units began their operations in the late summer of 2013. Several months later, plaintiffs filed their initial nuisance action. The defendants sought summary judgment, arguing that Iowa Code § 657.11(2) granted them immunity from such damage suits. The plaintiffs argued that the statute was unconstitutional, as applied to their case. The district court granted the plaintiffs partial summary judgment on that issue, and the Iowa Supreme Court agreed to hear the interlocutory appeal.

In an earlier decision Gacke v. Pork Xtra, L.L.C. (Iowa 2004), the Court found that while the law itself was a valid exercise of the state police power, it was unconstitutional as applied as it had denied the ability of the plaintiffs to sue for damages. In Gacke the court created the following three part test that courts should use to determine if plaintiffs have the right to sue. The plaintiffs must have:

  1. Received no particular benefit from the nuisance immunity granted to their neighbors other than that inuring to the public in general,
  2. Sustained significant hardship, AND
  3. Resided on their property long before any animal operation was commenced on neighboring land and had spent considerable sums of money in improvements to their property prior to construction of the defendant’s facilities.

 

Fast forward to 2018. Since Gacke, every district court that has faced the question has found Iowa Code § 657.11(2) unconstitutional “as applied.” The district court in Honomichl was no exception. The defendants in this case urged the court to reexamine and overturn the Gacke precedent. The plaintiffs asked the Court to declare the statute facially invalid or unconstitutional under all circumstances.

The Iowa Supreme Court upheld Gacke and clarified the procedure that should now be followed by courts in nuisance cases involving feeding operations. The Gacke factors, the court explained, require a fact-based analysis that will generally require a trial on the merits, or at least an evidentiary pretrial hearing. The Court stated that although it is possible that an as-applied constitutional challenge to the statute could be resolved in pretrial litigation, the proper procedure is as follows:

  • The trial court is to allow the CAFO to plead the affirmative defense, if applicable.
  • Plaintiffs asserting the unconstitutionality of the statute, as it applies to them, must then prove the existence of the three Gacke factors.
  • If the plaintiff is successful, the immunity will not apply.
  • If the plaintiff is unsuccessful in a pretrial hearing held for the specific purpose of determining the as-applied challenge, the plaintiffs may still rely on the other exceptions to the immunity found in the statute: The failure to comply with a federal  or state statute, regulation, or rule OR (1) The animal feeding operation unreasonable and for substantial periods of time interferes with the person’s comfortable use and enjoyment of life or property AND (2) The animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation

 

It is now clear that district courts must engage in significant fact finding before they can declare that granting immunity from special damages to a defendant would violate a specific plaintiff’s constitutional rights. This can’t occur until after a trial or an evidentiary pretrial hearing. As such, the three-prong Gacke test essentially transforms the Iowa statute from an immunity provision into a rewrite of Iowa nuisance law for plaintiffs suing an animal feeding operation.

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

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

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

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

Posting unapproved minutes with ZBA decision does not start the clock for purposes of filing appeal

by Eric Christianson

Burroughs v. Davenport ZBA
(Iowa Supreme Court, May 25, 2018)

To operate a daycare in the City of Davenport one must obtain a special use permit from the Zoning Board of Adjustment (ZBA).  In March 2014, the ZBA granted Tiny Tots Learning Center a permit. Tiny Tots closed its doors in late 2014, and in July 2016 a new lessee of the premises, Mz Annie-Ru Daycare Center, opened at the same location. The new day care center supervises more children and is open for longer hours than Tiny Tots was. The Davenport Zoning Administrator determined the special use permit issued to Tiny Tots “run[s] with the land” and the new daycare center would not need to obtain another special use permit.

Burroughs along with other neighbors disagreed and appealed that decision to the Board of Adjustment. On October 13 the ZBA voted 4-0 to uphold the administrator’s decision that the special use permit continued to apply. After that hearing, staff advised the residents that they could file a petition to revoke the special use permit. They did so and on December 8 the board held a public hearing to determine if the permit should be revoked. The BOA voted 0-4 against revoking the permit. Shortly after both of these meetings city staff posted unofficial minutes to the city’s website; however, they were not officially approved until the subsequent meeting of the ZBA.

On January 25, Burroughs along with five other residents appealed these decisions to District Court claiming that the ZBA had acted improperly in refusing to revoke the permit. The City filed a motion to dismiss the case, asserting that the petition was untimely because it was not filed within thirty days of the challenged decisions.

Iowa Code 414.15 states:

Any person […] aggrieved by any decision of the board of adjustment […] may present to a court of record a petition […] Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.

The district court granted the City’s motion. Considering the posting of the minutes online to be the “filing of the decision.” Because the minutes of the December 8 meeting were posted on December 19th. The appeal on January 25th was untimely.

The court concluded that the:

“thirty-day time period begins to run from the time the appealing party has either actual knowledge or is chargeable with knowledge of the decision to be appealed.”  Because it was “undisputed” that plaintiffs attended both the October 13 and the December 8 meetings, they had actual knowledge of the Board’s decisions as of those dates: “[T]he Court cannot hold that they did not have actual knowledge or chargeable knowledge of the decision which they witnessed firsthand.”

Burroughs and the other plaintiffs appealed this dismissal.

The Iowa Supreme Court considered four possibilities of when the decision was “filed” in this case:

  1. The time that the decision is made in a public meeting wherein the parties gain “actionable knowledge.”
  2. When the unofficial minutes of the meeting are posted to the city websites.
  3. When approved official minutes have been posted online.
  4. When a signed physical document is present in the offices of the BOA and available for public inspection.

Both parties had an initial and fallback opinion. The city argued that the decision was “filed” at the meeting when the vote was taken and the parties were aware of the action. If that was not accepted, then they argued that the posting of the unofficial meeting minutes online should be considered filing the decision.

The plaintiffs argued principally that that for a decision to be filed it had to be a physical signed document including findings of fact and available for public inspection at the board’s offices. By this argument neither the October 13th decision nor the December 8th decisions had ever been properly filed and thus could still be appealed. If the court did not accept this argument, then they argued that only the posting of the approved minutes online could be considered “filing.” This fallback position would only preserve the December 8th refusal to revoke the permit for appeal as the approved minutes containing that decision were not posted until January 6th.

The court gave a few principles that can be used to determine when a ZBA decision has been filed and, therefore, how long plaintiffs have to appeal.

First, a decision cannot be simply oral.  It must exist in some documentary form. Simply having knowledge of what the decision is is not sufficient.

Second, the decision can be filed in electronic rather than paper form. The plaintiffs in this case tried to argue that a public document must be physical. The court disagreed indicating that in fact most of the Court’s own documents exist only digitally.

Third, a document has been filed in the “office of the board” when it has been posted on the board’s publicly available website that the board uses as a repository for official documents. The “office of the board” does not have to be a single physical location as long as the documents are accessible to the public.

Finally, the thirty-day period is triggered when the board posts the decision on its public website.  However, what is posted must be an actual decision.  Proposed minutes that have not yet been approved do not constitute a decision, but approved minutes do.

The Supreme Court of Iowa reversed the District Court’s dismissal of the December 8th ZBA decision. The case is remanded back to district court for further proceedings on the legality of the decision to allow Mz Annie-Ru Daycare Center to continue operation.

Implications for local governments

Although the court has clarified some aspects of 414.15, this decision does not answer all potential questions and you should rely on the advice of your attorney before changing your current practice. Some local boards have a long standing practice of approving a written Decision Order at the same meeting as the hearing and decision. Creation of such an Order as long as it clarifies the decision and the reasoning used, would likely qualify as filing the decision. Alternatively for boards that rely on approved minutes to file their decisions, it may be prudent to schedule a follow-up meeting to approve those minutes if the board of adjustment meets infrequently. This is especially true is litigation seems likely on a specific case.

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