Tag: conditional use permits

Church entitled to restore prayer trail because denial likely to be proven to be a substantial burden on religious exercise under RLUIPA

Gary Taylor

by Gary Taylor

Catholic Healthcare International v. Genoa Charter Township (MI)

Federal 6th Circuit Court of Appeals, September 11, 2023

Catholic Healthcare International wanted to create a prayer trail with 14 “Stations of the Cross” on a wooded 40-acre property it owns in Genoa Charter Township. No part of the prayer trail would be visible from outside the property. A few miles away, in Fillmore County Park, the Township had created a 15-station reading trail of its own, with large signs telling the tale of “Leopold the Lion.” The Township considered the prayer trail to be a church building, for which the following special use permit application items would be required:

  • Completed Special Land Use Application.
  • Completed Site Plan Review Application.
  • $2,875.00 Special Land Use/Site Application Fee.
  • Four (4) Sets of Site Plans (folded) that comply with the applicable
    requirements found in the Site Plan Review Application.
  • Four (4) copies of an Environmental Impact Assessment.

At considerable expense, Catholic Healthcare submitted two unsuccessful applications. Catholic Healthcare moved forward anyway, creating the prayer trail as designed. The Township demanded the removal of the Stations of the Cross, plus a stone altar and mural. Catholic Healthcare did not comply with that demand; instead, given the Township’s insistence on treating the prayer trail as a church, plaintiffs decided to expedite their longer-term plan to seek approval for an actual church building. The Township Planning Commission approved the plan for a 95-seat, 6,090 square foot church with associated parking lot, lighting and outdoor accessory structures, but the Township Board denied the request and renewed its demand that the prayer trail be removed.

The rest of the facts are unclear even to the Court of Appeals. The salient point is that at some point a group of church volunteers physically removed all the religious displays from the prayer trail, and at some later point Catholic Healthcare sought a preliminary injunction to restore the Stations of the Cross, altar, and mural, claiming that, as applied to them, the Township’s zoning ordinance violated the federal Constitution, the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the Michigan Constitution. The district court twice denied that request, holding that its free-exercise and statutory claims are unripe.

The Sixth Circuit reversed, stating that in land-use cases, claims are “ripe” when the government has adopted a “definitive position” as to “how the regulations at issue apply to the particular land in question.” Here, the Township has uniformly insisted that Catholic Healthcare obtain a special land-use permit and has twice refused to grant a permit. Those events have “inflicted an actual, concrete injury” because the Township has actually forced them to remove the religious displays. Catholic Healthcare showed that it can likely prove that the Township has imposed a “substantial burden” on its religious exercise, and that the Township failed to use the “least restrictive means of furthering a compelling interest” as required by RLUIPA. Because Catholic Healthcare is likely to succeed on the merits of its claim under RLUIPA, the preliminary injunction requested by Catholic Healthcare should be granted.

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Active extraction of aggregate required to prove continuance of nonconforming quarry

Gary Taylor

by Gary Taylor

Dakota Constructors, Inc., v. Hanson County Board of Adjustment

South Dakota Supreme Court, July 26, 2023

Hanson County, adopted its first (it appears from the opinion) zoning ordinance in April 2000. In 2021, Dakota Constructors, Inc. (Dakota) purchased a quarry located in Hanson County that had operated since 1986 under a state license to mine sand, gravel, and rock. After the purchase, the Hanson County Zoning Administrator advised Dakota Constructors that because the quarry is located in a district that is currently zoned as agricultural, it would need a conditional use permit (CUP) in order to extract sand, gravel, and rock from the site. Dakota submitted a CUP application but argued before the Hanson County Board of Adjustment (Board) that it did not need a CUP because the operation of the quarry was a continuing prior nonconforming use. Dakota provided documents and statements concerning the operation at the quarry dating back to 1986; specifically, that material had been hauled from the site continuously since 1986. The submissions also showed, however, that all the materials hauled from the site since 2004 had been extracted from the ground prior to 2004; that is, no aggregate had been mined from the quarry from 2004-2021. A scientist from the South Dakota Department of Agriculture and Natural Resources Mineral and Mining Program explained in a February 2022 email exchange with the county zoning administrator that “[m]ining is not defined in statute under [SDCL chapter 45-6 (addressing sand, gravel and construction aggregate mining)]. We have always gone with the extraction of sand, gravel, or rock from the ground as mining. Thus the removal of stockpiled material is not considered mining.” Based on this evidence, the Board concluded that the previous mining operation had ceased for more than one year, and that as a result a CUP would be necessary for Dakota to proceed with its operation.

As part of the fact finding related to the CUP hearing, the Board received a report from an engineering firm providing recommendations for stabilizing a portion of the quarry that was impacting the integrity of a nearby County road. A slump undermining the fence had come within fifteen feet of the guardrail, and the ground was eroded up to the fence in four other locations. The estimated cost of the repairs to prevent damage to the County road was $620,500.

The Board approved the CUP and established conditions for use of the quarry, including repair of the erosion near the road, before commencing blasting. Dakota filed a petition for writ of certiorari with the circuit court, which the circuit court denied, stating that Dakota “did not meet its burden in showing the Board acted fraudulently or in an arbitrary or willful disregard of undisputed and indisputable proof in its determination that Dakota Constructors needed a [CUP] . . . .”

Dakota appealed to the South Dakota Supreme Court. As the court stated it, “[Dakota’s] argument is essentially that the nonconforming use of the property is being a ‘quarry,’ and because the property was never reclaimed it never ceased to meet the definition of quarry.” On the other hand, the Board focused on the term in the zoning ordinance that permitted “extraction of sand, gravel, or minerals” in the agricultural district with a CUP. The Board contended that the operation had clearly ceased to extract aggregate for more than one year.

State law provides in relevant part that “[t]he court shall give deference to the decision of the approving authority in interpreting the authority’s ordinances.” Even before this statutory language became effective in 2018, the court had employed a judicially-created deference: “[i]n passing on the meaning of a zoning ordinance, the courts will consider and give weight to the construction of the ordinance by those administering the ordinance.” The court found no fault with the Board’s focus on the term “extraction” in interpreting its own ordinance, and concluding that mere hauling away of previously extracted aggregate did not constitute the continuance of the mining operation. Furthermore, continuing to hold a mining permit does not, in itself, establish that a prior nonconforming use was continuing; it merely “provided the authority to conduct mining activities if it chose to do so.”

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Local ordinance requiring conditional use permit for business selling alcohol not preempted by state liquor licensing law

Gary Taylor

by Gary Taylor

Lime Lounge, LLC v. City of Des Moines

Iowa Court of Appeals, February 8, 2023

Lime Lounge owns and operates a bar in the East Village of Des Moines. To sell alcoholic beverages in Iowa an establishment must obtain a liquor control license from the state Alcoholic Beverages Division (ABD). Among other requirements, the applicant for the license must first file the application with the local authority – in this case the city of Des Moines – for its approval. If the local authority disapproves of the application, the applicant has the ability to appeal the decision to the administrator of the ABD.

To sell alcoholic beverages in Des Moines an establishment must, among other things, be granted a conditional use permit (CUP), which places different requirements on establishments than the liquor control license. Depending on the type of business it is engaged in, a business is required to meet standards related to noise, litter, hours of operation, and others. The city will not consider a liquor control license application until the CUP is approved.

Lime Lounge obtained a CUP from the Des Moines Zoning Board of Adjustment (ZBA) and had their liquor control license approved in 2011. In 2015, the ZBA amended Lime Lounge’s CUP after multiple noise complaints. The ZBA revoked Lime Lounge’s CUP in March 2016. Lime Lounge challenged the revocation, but the revocation was upheld on appeal. On May 14, 2019, Des Moines filed a complaint with the ABD to revoke Lime Lounge’s state liquor license on the basis of the establishment’s failure to comply with local ordinances. Lime Lounge resisted the city’s complaint by filing a temporary injunction, but the district court dismissed Lime Lounge’s suit. Lime Lounge appealed.

Preemption. Lime Lounge’s first argument was that the Des Moines zoning code requirement of a CUP for an establishment selling liquor was preempted by the state alcoholic beverage control law found in chapter 123 of the Iowa Code because the zoning code requires an additional permit and fees in order to obtain a state liquor license. Lime Lounge asserted that the doctrine of express preemption, which “applies where the legislature has specifically prohibited local action in a given area,” rendered the Des Moines ordinance illegal.

Courts will look to the “specific language used by the legislature” to determine whether express preemption applies. Although Iowa Code section 123.37(1) provides, “The power to establish licenses and permits and levy taxes as imposed in this chapter is vested exclusively with the state. Unless specifically provided, a local authority shall not require the obtaining of a special license or permit for the sale of alcoholic beverages at any establishment….” the Court of Appeals determined that this did not apply to the city’s CUP permitting scheme because the zoning provisions related to the use of land. It agreed with the conclusion of the district court that “[t]he ordinance does not require a permit for the sale of alcohol, it requires a permit to use certain premises for the sale of alcohol. It’s a land-use regulation, not a regulation on the sale of alcohol. Thus, the requirement to obtain a CUP is not a permit requirement ‘for the sale of alcoholic beverages'” as contemplated by chapter 123. The Court of Appeals further observed that chapter 123 provides:

Local authorities may adopt ordinances or regulations for the location of the premises of liquor control licensed and retail wine or beer permitted establishments and local authorities may adopt ordinances, not in conflict with this chapter and that do not diminish the hours during which alcoholic beverages may be sold or consumed at retail, governing any other activities or matters which may affect the retail sale and consumption of alcoholic beverages and the health, welfare and morals of the community involved.

Iowa Code 123.39(2)

Equal Protection. Lime Lounge also asserted the the Des Moines zoning ordinance violates the Equal Protection clause of the Iowa and United State Constitutions, which has been interpreted by courts to direct that “all persons similarly situated should be treated alike.” Whether this ideal has been met in the context of economic legislation is determined through a “rational basis” test. If the regulation is “rationally related to a legitimate governmental purpose” then the regulation will be deemed valid.

Lime Lounge alleged the varied requirements—particularly the necessity of obtaining a CUP and the fees necessary to do so—imposed on different establishments such as restaurants, bars, and retail establishments are arbitrary, and that the municipal ordinance allows the ZBA to “impose virtually any condition which it can contemplate—and, more onerously—on an individualized basis.”

The court disagreed with both allegations. The city has a legitimate purpose in ensuring the health, welfare, and safety of the community. The distinctions drawn in the ordinance between bars, restaurants and other retail establishments is rationally related to that purpose because each has different characteristics of operation. For example, bars tend to operate later in the evening than restaurants, create more noise from music and patrons, and have increased law enforcement requirements. Requiring additional permitting for these and other businesses that are more likely to exhibit greater nuisance behaviors is rationally related to protecting the community.

The court also disagreed that the ordinance allows the ZBA “unfettered discretion” in imposing permitting restrictions. The ZBA is in fact constrained by criteria found in the ordinance for imposing conditions related to public health and safety, noise, traffic congestion, and nuisance prevention. The East Village of Des Moines is a mixed-use neighborhood, containing both commercial and residential buildings. Tailoring certain zoning restrictions related to noise, congestion, and other nuisance behavior to the specific circumstances of the area is rationally related to promoting the community’s welfare.

Spot zoning. Finally Lime Lounge asserted that the code section amounted to illegal spot zoning, but the court dismissed that assertion by noting the similarities between the city’s treatment of Lime Lounge and those of several of its East Village contemporaries. Furthermore, the noise restrictions and other directives limiting nuisance behavior fall squarely within the city’s police power.

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Failure to comply with previous ZBA SUP conditions does not render “illegal” ZBA’s decision to grant same party another SUP

Gary Taylor

by Gary Taylor

Brinkley v. City of Milford Zoning Board of Adjustment

Iowa Court of Appeals, November 2, 2022

In May 2021, Okoboji Community School District (OCSD) submitted applications to the Milford Zoning Board of Adjustment (ZBA) seeking special use permits for the construction of a bus barn and a multipurpose building on its high school campus. The next month, the ZBA discussed OCSD’s applications during a special meeting, which the Brinkleys and their representatives attended. The Brinkleys raised multiple issues with the project, primarily focusing on OCSD’s failure to fully comply with a 2004 ZBA decision imposing a condition that OCSD must “plant, cultivate and maintain vegetative screening in an adequate and appropriate manner on the School’s property adjacent to the north, west and south of the Brinkley property” to receive a special use permit. It was essentially indisputable that OCSD had not installed or maintain the required vegetative screening along substantial portions of the border between the properties. Nevertheless, at the conclusion of the hearing on the special use permit the ZBA approved the application. One of the conditions attached to the approval was that “The vegetative screens plan as presented by the school must be planted within 12 months after the ‘substantial completion’ of the school project.” The Brinkleys filed a petition for writ of certiorari, arguing the ZBA acted without substantial evidence and illegally by granting the special use permit despite OCSD’s failure to plant the vegetative screen required in the 2004 ZBA decision. The district court found the ZBA acted legally, and this appeal was taken.

The Court of Appeals found nothing illegal or arbitrary about the ZBA’s decision. Upon review the court concluded that the ZBA was not unreasonable in concluding that OCSD met the criteria for special use permits found in the Milford zoning ordinance, nor was it unreasonable to allow the 12-month window from project completion to install new vegetative screening. On the issue of the city’s failure to enforce the screening condition from 2004, “[a]lthough the city had an obligation to enforce its zoning requirements, such [failure to carry out its] duty does not equate to an illegality.” Mandamus action could have provided the Brinkleys a vehicle to compel compliance with the 2004 decision, but that avenue was lost when the ZBA granted the current permit.

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Township zoning ordinance does not (necessarily) conflict with state law granting veteran right to operate mobile hot dog stand

Gary Taylor

by Gary Taylor

Padecky v. Muskegon Charter Township

Michigan Court of Appeals, September 8, 2022

Padecky is an honorably discharged military veteran.  He holds a license to sell goods pursuant to Michigan law, MCL 35.441, which provides that “[a] veteran may sell his or her own goods within this state if the proceeds from the sale of the goods are to be used for his or her direct personal benefit or gain.”  He obtained permission from a grocery store located in a C-1 – Commercial district to operate his hot dog stand in the store’s parking lot.  The Township contended that mobile food businesses were only permitted in M-1 zoning districts, and then only then by way of a special use permit.  Padecky did not dispute the fact that the C-1 zoning district does not support mobile food stands.  Instead he argued that requiring him to obtain a special use permit which would still limit him to the M-1 district violated MCL 35.441.

Relying on a case it decided in 2000, and a subsequent Michigan Attorney General’s opinion, the Michigan Court of Appeals determined that MCL 35.441 should be read to permit Townships to comply with regulations addressing the place and manner in which veterans sell goods, but may not require them to obtain permits or otherwise pay for the privilege of selling goods.  The court therefore determined that the outcome of this case turned on “how the Township’s ordinance is construed.” It first noted that the Townships zoning ordinance requires an applicant for a special use permit to have “fee title or equitable interest in the subject property.”  Padecky observed that it would be a burden for him to have a landowner seek a special use permit on his behalf.  The Court agreed, but held that permission from a landowner would be sufficient “equitable interest” in the property to allow Padecky to apply for the permit himself, and that the Township could not charge Padecky a fee for seeking the permit. “The Township may use the special use permit process for the limited purpose of ensuring that plaintiff carries on his sale of goods in an appropriate location and manner, but no more.”  From the record reviewed by the court it was unclear whether any land in the Township was zoned M-1.  The court therefore remanded the case back to the trial court for further fact finding on whether M-zoned land existed.  In doing so the court stated that “it is the Township’s obligation to ensure the existence of some property that might be appropriate for a mobile food stand – if necessary by sua sponte rezoning some other zoned property [to M-1].”

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

ejchr 3 Comments

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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Court of Appeals affirms ZBA’s denial of liquor permit

ejchr

by Eric Christianson

Shop N Save v. City of Des Moines Board of Adjustment
(Iowa Court of Appeals, January 24, 2018)

Note: this is a separate case from Shop N Save v. City of Des Moines Zoning Board of Adjustment decided in August of 2017 year. Although both permits were denied at the same ZBA meeting citing much of the same evidence, they concern separate Shop N Save locations.

Shop N Save operates a convenience store located on Martin Luther King Jr. Parkway in Des Moines. As a limited food / retail sales establishment, it may derive no more than forty percent of its gross sale receipts from the sale of liquor, wine, beer, and tobacco products. In March 2015, Shop N Save applied for a conditional use permit to operate as a liquor store, which would eliminate the store’s limit on gross sales receipts from the sale of those products.

At the zoning board of adjustment hearing held in April 2015, city staff recommended denial of the permit, and neighbors testified of crime and nuisance issues associated with liquor sales at the location. The board also noted the close proximity of the liquor store to residential property.

Based on this testimony and the proximity to residential uses, the board voted to deny the permit.

In May of 2015 Shop N Save appealed to district court arguing that the board illegally denied the permit. The district court affirmed the decision finding that the board had relied on substantial evidence to deny the permit. Shop N Save appealed again to the Iowa Court of Appeals.

The Court of Appeals examined the case to determine if the Zoning Board of Adjustment acted within its authority in denying the permit.

According to the City of Des Moines’s zoning ordinance a conditional use permit must be show to conform to the following criteria:

  1. The business conforms with [zoning restrictions].
  2. The proposed location, design, construction and operation of the particular use adequately safeguards the health, safety and general welfare of persons residing in the adjoining or surrounding residential area.
  3. The business is sufficiently separated from the adjoining residential area by distance, landscaping, walls or structures to prevent any noise, vibration or light generated by the business from having a significant detrimental impact upon the adjoining residential uses.
  4. The business will not unduly increase congestion on the streets in the adjoining residential area.
  5. The operation of the business will not constitute a nuisance.

Failure to comply with any one of these conditions is fatal to the application.

Shop N Save argues that the denial was not supported by substantial evidence because “only four individuals” spoke against the permit, and all of the issues raised took place when the store was under previous ownership.

The court disagrees, finding that the testimony of the neighbors in addition to an additional email from the neighborhood association were substantial evidence that issuing the permit could create a nuisance. The court states that Shop N Save’s assertions that things would be better in the future could have reasonably been accepted by the board, but they were not and that is within the board’s discretion.

Because the ZBA’s ultimate decision was supported by substantial evidence. The boards decision is affirmed.

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Substantial evidence supported ZBA’s denial of conditional use permit for liquor sales

Gary Taylor

by Gary Taylor

Shop N Save Food v. City of Des Moines Zoning Board of Adjustment
Iowa Court of Appeals, August 2, 2017

Shop N Save applied for a conditional use permit (CUP) that would allow the business to sell wine and beer.  The store in question is located in a C-1 neighborhood retail commercial district in Des Moines.  Previous owners of the store had been permitted to sell liquor, beer, and wine, but the store’s liquor license was suspended for the year leading up to the CUP application, and due to changes in the city’s zoning regulations the new owner was required to seek a CUP to resume alcohol sales.

At the beginning of the hearing on the CUP, city staff presented its report to the Des Moines Zoning Board of Adjustment (ZBA) recommending approval of the CUP subject to ten conditions.  Staff presented the ZBA with letters from local neighborhood associations, as well as police reports from the neighborhood.  Staff noted, however, that the Shop N Save had either been closed or barred from selling alcohol for most or all of the time covered by the police reports.

Counsel for Shop N Save, in his presentation, conceded “there had been problems in the past” with crime around this Shop N Save, but asserted the new owner was willing to work with the neighborhood associations to address those problems.  In responding to the testimony of the neighborhood association representatives that voiced concerns about crime, Shop N Save counsel resisted their recommendations for the imposition of conditions over and above those recommended by staff, and suggested the best course would be to “come up with a plan together.”

ZBA members questioned the legitimacy of the ownership transfer. Shop N Save counsel acknowledged that the store was being run by “a combination of [old and new management] but it’s generally the new management…running the store” and admitted that the official transfer of ownership had not yet occurred.

In a 4-1 vote the ZBA denied the CUP, citing concerns about the ambiguity in the ownership transfer and the problematic history of the location.  Shop N Save appealed this decision to the district court, which affirmed the denial, finding substantial evidence for the ZBA’s decision.  Shop N Save appealed to the Iowa Court of Appeals.

The Court of Appeals highlighted several well-settled points of law concerning the consideration of conditional use permits by zoning boards of adjustment, and by courts reviewing those decisions, that are worth reviewing:

  • A conditional use permit is meant to provide flexibility in what otherwise would be the rigidity of zoning ordinances, while at the same time controlling troublesome aspects of somewhat incompatible uses by requiring certain restrictions and standards.
  • It is the burden of the applicant to show that all the conditions of the ordinance are satisfied.
  • A decision by a zoning board of adjustment enjoys a strong presumption of validity.
  • A board may deny a conditional use permit for reasons relating to public health, safety, and welfare, but generalized or unsupported neighborhood opposition does not, by itself, provide a legally sufficient reason for a CUP denial.
  • If the reasonableness of the board’s action is open to a fair difference of opinion, the court may not substitute its decision for that of the board.
  • An appellate court is bound by the district court’s factual findings if they are supported by substantial evidence in the record. Evidence is “substantial” if a reasonable person would find it adequate to reach the given conclusion, even if a reviewing court might draw a contrary reference.

Shop N Save argued that the ordinance requirement that “the proposed location, design, construction and operation of the particular use adequately safeguards the health, safety, and general welfare of persons residing in the adjoining or surrounding residential area” may not even apply to the sale of beer and wine because the sale of such products is separate from the “physical characteristics of the property.”  The Court of Appeals rejected this argument, finding that the language is broad enough to regulate not only the location, design, and construction of the business but its operation as well.  The Court further found that the ZBA’s denial was based on more than generalized or unsupported neighborhood opposition, and included reliance on specific incidents described in neighbors’ testimonies, and on the dramatic reduction in crime that resulted when liquor sales were ended at a similarly situated convenience store in another neighborhood.  Finally, the Court found the ZBA was well within its authority to consider the pending owners’ “tepid” responsiveness to neighbors’ serious reservations as a signal that past problems were likely to continue into the future, regardless of any conditions the ZBA could impose.

The ZBA’s denial was affirmed.

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Diesel repair business met all criteria for conditional use permit in agricultural zone

hdankbar

Hortian, et al., Relators vs Fischer and Wright County Planning Commission
Minnesota Court of Appeals, December 7, 2015

In 2006 the Wright County Planning Commission granted a CUP to Fischer to operate a diesel repair business as a home-extended business on property that is zoned General Agricultural (AG). Under this zoning classification home-extended businesses are allowed. The Hortians live on the neighboring property and complained about the business multiple times over multiple years. The Wright County Sheriff’s Department inspected the property and noted multiple violations. Fischer was told to file for an amended CUP, which he did. Fischer estimated that 40% of his business was agricultural and that his activities on the property still complied with the zoning classification. Realtors testified that Fischer’s business injured his neighbor’s properties. The Commission granted the amended CUP.

The Hortians appealed the Commission’s decision. On appeal, the Hortians must show that the Commission did not follow the standards for CUPs set forth in the zoning ordinance and that granting the CUP was an abuse of discretion.

The Hortians challenged the county’s interpretation of WCZO §741(3) which mandates that there should be “no outside storage of supplies, equipment or maintenance items; all work and work related items shall be kept in an enclosed structure.” They claim that customers’ cars parked outside of Fischer’s building waiting for repair qualify as “equipment” or “work-related items”.  The Commission instead determined that the cars were neither “equipment” nor “work-related items,” but were rather regulated by another part of the ordinance that only prohibits parking unlicensed or inoperative vehicles.  The Commission attached a specific condition to the amended CUP that “all vehicles and trailers on the property must have current registration and/or licensure unless otherwise exempt by law.” The court sided with the Commission. Considering these vehicles as “equipment” or “work-related items” is a narrow definition that would limit Fischer’s ability to work from home.

The Hortians claimed that the Commission made an error in granting the amended CUP because Fischer’s business is injurious to neighboring properties because of the additional wear on the roads, the high volume of sounds from the tools, and the bright lighting installed around the building. During a site visit the Commission found that none of these were true and that the operation complied with the ordinance.  The court did not dispute that finding, either.

The Hortians argued that Fischer’s business did not fit in an agriculturally zoned area. The Commission found that, while the business is industrial in nature, it serves an agricultural community and an agricultural purpose and therefore fit in the zoning classification.

The Commission did not err by granting the CUP.

Conditional Uses/Special Uses, Home occupations, Minnesota courts , ,
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Neighbor testimony sufficient evidence to support CUP denial

vaagea

by Andrea Vaage

August v Chisago County Board of Commissioners
Minnesota Court of Appeals, August 17, 2015

Jeffrey August purchased a 20-acre tract of land in Sunrise Township, in Chisago County, Minnesota. August built a fenced-in arena and later an announcement system for mounted shooting events he hosted on the property. In 2013, August formed a club, Cowboy Mounted Shooting, which held competitions and clinics. Mounted shooting involves contestants on horseback who shoot .45 caliber blanks at balloons on posts in the middle of the arena. These competitions were held throughout the summer, typically starting in the afternoon and continuing until dusk. In 2014, the Chisago County zoning department inspected the property after hearing complaints. The department found the use of the property did not conform to its zoned agricultural use. The zoning department then recommended August apply for a conditional use permit (CUP). August complied and filed a request to allow a rural retail tourism/commercial outdoor recreation use.

Two entities provided recommendations on the CUP: Sunrise Township and Chisago County Planning Commission. Sunrise Township recommended denial of the CUP based on the excessive and disruptive noise. The County Planning Commission also recommended denial of the CUP based on comments at a public hearing that noise levels were high and consistent and a planning report which stated that, although the noise was below the allowed decibel limit, it was still clearly audible from neighboring properties.

The public hearing for the CUP was held on July 16, 2014. The County Board of Commissioners denied the permit based on that hearing and the recommendations provided by the Planning Commission. August appealed. At issue is whether the denial of the CUP was unreasonable, arbitrary, or capricious. The test to determine if a zoning board decision was sound is two-pronged: the reasons given for denial are legally sufficient and the reasons had a factual basis in the record.

The legal basis for denying the CUP was Section 4.15(D)(5) of the Chisago County Zoning Ordinance (CCO) regulating rural retail tourism. Pursuant to this section, a proposed rural retail tourism use will only be allowed if it “will not negatively impact the neighborhood by intrusion of noise, glare, odor, or other adverse effects.”

The Board established several facts in regards to the noise issue. The Board relied in part on neighbors’ testimony that there was a significant increase in noise and traffic on weekends when the mounted shooting events were held. The arena for these events was located within 500 feet of adjacent homes, and noise was heard by neighboring residents. Additionally, the planning commission members’ trip to the property confirmed the high levels of noise resulting from the gunfire.

August argued the Board cannot rely on neighbor’s testimony, however, the court relied on previous rulings that found that “a municipal entity may consider neighborhood opposition when it is based on something more concrete than non-specific neighborhood opposition.

August also argued that the CUP could only be denied if the noise levels exceeded decibel levels set by the Minnesota Pollution Control Agency (MCPA). The Court found that the county zoning ordinances were not in conflict with the MCPA standards because it regulates noise based on neighborhood intrusion, not decibel levels.

The County Board of Commissioners decided to deny the CUP based on sufficient legal and factual basis and was not unreasonable, arbitrary, or capricious. The Board’s decision is affirmed.

Conditional Uses/Special Uses, Minnesota courts, Noise ,
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