Court of Appeals finds another “nearest feasible route”

by Gary Taylor

Edward A. Green and Melvin J. Green, v. Wilderness Ridge, LLC
(Iowa Court of Appeals, May 11, 2011)

This case is a continuation of two previously reported cases, an Iowa Supreme Court case decided January 8, 2010,  which itself was an appeal of an Iowa Court of Appeals case decided May 29, 2009  (see the Court of Appeals case for a full account of the facts).  The 2010 Iowa Supreme Court case vacated the earlier Court of Appeals decision concerning the ability of the owner of a landlocked parcel to access that parcel over the land of another, using the “nearest feasible route to an existing public road.” as required under Iowa Code 6A.4(2).  The courts were essentially given two routes to choose from – a northern route and a southern route.  The Supreme Court found that the term “nearest feasible route” required a consideration of reasonableness, focusing on the impacts on both parties.  The Supreme Court remanded to the trial court, noting that it is incumbent on the courts to consider the value of the land to be condemned in determining the specific route for providing access.  

On remand, the district court condemned the northern route, relying on the Greens’ real estate experts who opined that the southern route would be costly and disruptive to the farming operation. Wilderness Ridge appealed, arguing the Greens’ evidence did not support the condemnation damages alleged. Giving due weight to the district court’s factual findings and considering both the ease of constructing the road and its harm to neighboring properties, the Court of Appeals in the present case agreed the northern approach is the “nearest feasible route.”
The Court relied on testimony from two farm realtors that fencing off the access road along the southern route would significantly reduce the value of the Greens’property by as much as $190,000. Other testimony substantiated that even if fencing was not required, would take a toll on their farm in other ways. Construction of the road itself will alter the crop field borders and point rows which will shrink the productive capacity of the land. A real estate broker estimated that the reduction in tillable acres alone from construction of the southern route would cost the Green brothers as much as $27,500 over the next twenty years. The evidence also suggested that building an access road along the southern route would change the drainage patterns of the adjacent farm fields.

The Court of Appeals affirmed the determination of the district court.

Landowner’s defense in zoning enforcement action barred by issue/claim preclusion

by Gary Taylor

Sharkey v. Dubuque County Zoning Board of Adjustment
(Iowa Court of Appeals, November 24, 2010)

Dennis Sharkey owns two parcels in Dubuque County.  Parcel A is zoned M-1 Industrial and M-2 Heavy Industrial. Parcel B is zoned R-3 Single Family Residential.  The properties, and Mr. Sharkey, have been the subject of numerous disputes since the 1980s.  In 1988 Sharkey entered into a stipulated agreement with the county to resolve a zoning enforcement action.  Under the terms of the agreement Sharkey was “permanently enjoined from conducting or permitting any vehicle salvage operation or storage of any vehicles or junk” on the property.  In 1989 Sharkey was found in contempt of the order.  In 1994 Sharkey was convicted of unlawful storage and disposal of hazardous waste on the property and sentenced to prison.

In March 2007, the Dubuque County zoning administrator sent Sharkey two letters outlining problems with his property. In regard to Parcel A, the letter stated there were semitrailers, scrap metal, wood, appliances, and vehicles being stored outside on the property, in violation of zoning ordinances. In regard to Parcel B, the zoning administrator stated there were boats, junk cars and trucks, scrap metal, tires, and piles of wood being stored outside on the property, in violation of zoning ordinances. The letters also noted no flood plain management permit had been issued for either property.

Sharkey appealed the zoning violations to the Dubuque County Zoning Board of Adjustment, and at a June 5, 2007 hearing the Board determined both properties were being used as illegal junkyards and that the proper flood plain permits had not been obtained.  Sharkey challenged the decision in district court raising several defenses, including that he had a permissible existing nonconforming use and that the definition of “junkyard in the Dubuque County zoning ordinance was impermissibly vague.  The district court found that Sharkey was barred from using these defensed by the legal doctrine of “issue preclusion” – that these issues were decided when Sharkey and the county entered into the 1988 stipulated agreement.  Sharkey appealed to the Court of Appeals.

A party asserting issue preclusion – in this case Dubuque County – must show (1) the issue concluded in the previous action is identical to that in the present action; (2) the issue was raised and litigated in the prior action; (3) the issue was material and relevant to the disposition of the prior action; and (4) the determination of the issue was necessary and essential to the resulting judgment.  The Court of Appeals concluded that issue preclusion did apply.  The issue of whether Sharkey’s property is subject to the Dubuque County Zoning Ordinance, as well as the issue of whether the Flood Plain Management Ordinance applies, was determined in the 1988 action. The district court found the use of the property for auto salvage and the storage of vehicles and junk constituted a public nuisance and was not permitted under the Dubuque County Zoning Ordinance. The court also found Sharkey needed to follow the Dubuque County Flood Plain Management Ordinance.

The Court found that “claim preclusion” applied to Sharkey’s assertion that the term “junkyard” is impermissibly vague.  Claim preclusion involves the following elements: (1) the parties in the two actions were the same; (2) the claim in the second action could have been fully and fairly adjudicated in the prior case; and (3) there was a final judgment on the merits in the prior action.  The Court found that the issue concerning the definition of “junkyard” could have been fully and fairly adjudicated by Sharkey in 1988.

Finding sufficient evidence that Sharkey was impermissibly storing semitrailers, scrap metal, appliances, boats, junk cars and trucks, tires, and piles of wood on property in the M-2 Heavy Industrial District without a special use permit, the Court affirmed the decision of the district court.

“Nearest feasible route” requires reasonable consideration of costs to both landowners

by Gary Taylor

Green v. Wilderness Ridge, L.L.C.
(Iowa Supreme Court, January 8, 2010)

The Iowa Supreme vacated an earlier Court of Appeals decision concerning the ability of the owner of a landlocked parcel to access that parcel over the land of another, using the “nearest feasible route to an existing public road.”  Readers can go to The BLUZ blog post on the Court of Appeals decision, which can be accessed here, for a review of the facts.   

Iowa Code 6A.4(2) gives the owner of a landlocked parcel the right to exercise eminent domain over the land of a neighbor if it is necessary to gain access to a public road.  The code provision lays out criteria for exercising that right that include locating the access “along a line which is the nearest feasible route to an existing public road”  In this suit, the owners of the servient estate (the land across which the easement would cross) argued that the route suggested by Wilderness Ridge (owner of the landlocked parcel) (1) did not lead to a public road, and (2) did not consider the costs to the servient estate for allowing that route.  The Court of Appeals determined that the route selected by Wilderness Ridge did lead to a public road and would pose fewer costs to Wilderness Ridge than the route offered by the owners of the servient estate, and for that reason allowed condemnation of the route preferred by Wilderness Ridge. 

The Iowa Supreme Court disagreed with the Court of Appeals’s finding that Dudley land was a public road for purposes of Iowa Code 6A.4.  While the road could theoretically be located by it’s designation on old plats, Dudley Lane has never physically existed.  The purpose of the statute is to provide access to landlocked parcels, and providing access to a public road that exists on paper only does not meet legislative intent. 

The Supreme Court also found that the term “nearest feasible route” required a consideration of reasonableness, focusing on the impacts on both parties.  Thus it was incumbent on the courts to consider the value of the land to be condemned in determining the specific route for providing access.

Considering these findings the Supreme Court remanded the case to district court for further fact finding related to the location of the nearest public road and the costs of acquiring a route thereto.

Court elaborates on showing needed to condemn access to landlocked parcel

by Gary Taylor


GREEN v. WILDERNESS RIDGE, L.L.C. (link to case here)

(Iowa Court of Appeals, May 29, 2009)


Cost of acquisition not a consideration in determining “nearest feasible route” to condemn for access to landlocked parcel.


In July 2006 Wilderness Ridge purchased seventy-five acres in rural Dubuque County. The land was mostly timber, and Wilderness Ridge planned to use it for recreational purposes and occasional logging. Wilderness Ridge purchased the land knowing it was landlocked, and subsequently instituted condemnation proceedings pursuant to Iowa Code section 6A.4(2), which allows the owner of a landlocked parcel to gain access to the land by condemning a public way across another lanowner’s parcel.  Wilderness Ridge sought to condemn a twenty-four-foot-wide dirt road access across property owned by the Greens, and another property owned by third-party defendants, William and Theresa Kivlahan.  In June 2007 the Greens filed an action arguing the route proposed by Wilderness Ridge was not the nearest feasible route to an existing public road, as required under section 6A.4(2). In May 2008 the district court ruled in favor of Wildnerness Ridge. 


The Greens appealed, making three arguments.  First, they argued that the district court erred in ignoring the costs of acquisition of the land to be condemned in determining the nearest feasible route.  The Court of Appeals declined to adopt a standard in all private condemnation cases that the selection of the nearest feasible route include a consideration of the cost of acquiring the land sought to be condemned. The district court was correct to simply determine that Wilderness Ridge’s application for condemnation was legally sufficient.  It is then up to a compensation commission to appraise the damages. At that point, if the Greens disagree with the award made by the compensation commission, they may appeal the assessment to the district court.


Second, the Green’s asserted that the district court erred in concluding that Dudley Lane, a key part to the route favored by the Greens, was not an existing public road.  Although Dudley Lane is listed as a Dubuque County class B road and was platted and filed for record in 1919, the district court found no evidence that Dudley Lane has ever existed, and the Court of Appeals agreed. Both courts found persuasive the testimony of several witnesses that Dudley Lane had never been a travelable, drivable roadway, no records exist of Dubuque County maintaining it, and the terrain of the area is unsuitable for a roadway. 


Finally, the Greens took issue with the district court’s chosen route for the condemned road, arguing that the route favored by the Greens was a more feasible alternative.  The Court of Appeals disagreed, stating that the district court took into account the difference in length of the routes, terrain challenges, maintenance challenges, and cost of road development in determining the appropriate route for Wilderness Ridge to access its property. It concluded that significant evidence existed in the record showing that the Green’s preferred route would be much more difficult and costly to build and maintain than the route favored by Wilderness Ridge.   


Justice Mansfield dissented, arguing that when applying section 6A.4(2), courts are to select the “nearest feasible route” that meets certain other criteria, and that the word “feasible” incorporates consideration of the impact of the route on the servient estate.  Justice Mansfield argued that the Iowa Supreme Court’s decision in Owens v. Brownlie makes it “appropriate to also consider the value of the land sought to be condemned [for the access road].” The route affirmed by the Court of Appeals cuts through the middle of the Green’s 292-acre dairy farm, while the route favored by the Greens straddles the edge of that farm and goes through undeveloped land. There was substantial evidence that the route affirmed by the Court of Appeals will result in a reduction in value in the range of $180,000 to $190,000 reduction in value. In addition, the Greens will incur additional costs to install electricity and a well. 


Iowa Supreme Ct. examines scope of access easement

by Allison Arends

Stew-Mc Development v. Fischer
(Iowa Supreme Court, August 14, 2009).

Proposed use of farm access lane for access to residential subdivision would exceed original scope of easement.

In 1888, Anton Birkel purchased land in Dubuque County, which was eventually passed down to Ferdinand Birkel. During Ferdinand’s ownership, his mother, Rosa, lived on a separate farm on the northern part of his property. Ferdinand allowed Rosa and other relatives to travel across his land in order to access public roads and other parts of the property. After Rosa sold her property and it was divided into two lots, Ferdinand continued to allow the new owners of Rosa’s property to travel across his land. This “access way” was later named Kress Lane. In 1983, Ferdinand Birkel’s land was sold to Nancy and Thomas Fischer, who continued to allow the owners of the northern properties to use Kress Lane for access purposes. Prior to this case, the owners of the two northern lots were James Kress and Joseph and Penni Schmitt. Although Kress Lane is vital to the survival of these farms, Dubuque County never formally accepted it as a public road, although over the years the county has rocked and graded it, and given it a name for 911 emergency addressing purposes.  The Birkel-Fischer chain of ownership has never established a written legal instrument granting a formal easement across the Fischer party for Kress Lane.

In February 2002, Stew-Mc Development, Inc. made an offer to purchase the two-hundred acre Kress estate in hopes that the Dubuque County Board of Supervisors would approve an application to rezone the property to permit single-family residential development. At the Dubuque County Planning Zoning Commission where Kress’ application was considered, Nancy Fischer objected, stating that Kress Lane was only an access easement over her property, and the northern landowners had no real ownership. As a result, the application was denied on the grounds that the Kress property had insufficient public access.

Kress and Stew-Mc filed for a declaratory judgment claiming that Kress Lane was a county road, thereby providing sufficient public access necessary for residential development. The district court granted summary judgment in favor of the Fischers. The court determined that Kress lane was a private road based on “an easement and was not a public roadway, either by direct acquisition, formal dedication and acceptance, implied dedication or prescriptive easement.” The court also determined that despite the “scope” of the easement, it was not “broad enough to cover the proposed residential development. “

The court applied law of easements in which they found they must look at the original scope and use of the easement, which was granted to the two farm properties at a time when residential development was not contemplated. The court also decided that if the scope of the easement was not defined, the easement is limited to what is “reasonably necessary and convenient for the purposes for which it was created.” The court also noted that the development of the residential area would not only increase the use of the easement, but it would change the nature of the easement constituting an extra burden upon the dominant estate.





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