Consistent with a plan, but not enough – not now

by Gary Taylor

Francis, et.al. v. Bremer County Board of Supervisors
(Iowa Court of Appeals, October 21, 2009)

Showing of consistency with the comprehensive plan does not result in an automatic right to rezoning. 

J.D. Francis purchased approximately 35 acres north of Waverly, Iowa.  The land was zoned agricultural but most of it was designated for future single-family residential use by the Bremer County comprehensive plan.  Approximately four acres of the property was designated as “prime agricultural land” under the plan with a Corn Suitability Rating (CSR) above 50. 

Francis sought to rezone the non-prime agricultural land for residential development.  This land had a CSR of 49.5.  The Bremer County Planning and Zoning Commission found that the land was in a “planned growth area” under the plan, but nonetheless recommended denial of the rezoning request, citing citizen concerns about “current water supplies, runoff, number of drives along 190th Street, increased traffic, a possible sink hole in the area, productivity of the land, quality of life, septic system drainage, and not wanting more neighbors.”  The Bremer County Board of Supervisors followed the Commission’s recommendation and denied the rezoning.  Francis sued.

Francis asserted that the board of supervisors acted illegally in rejecting their rezoning petition because the land for which they sought rezoning had a lower CSR than the comprehensive plan’s rating for prime agricultural land, and was in an area designated for residential growth; i.e., that the requested rezoning was consistent with the comprehensive plan.  While agreeing with the general proposition that a county with a comprehensive plan must abide by that plan when making zoning decisions, the Court of Appeals also stated that “strict adherence to the statements [in a comprehensive plan] could actually negate other objectives of the plan.”  Citing the district court’s decision affirming the rezoning denial, the court stated,

“Just because a land owner demonstrates that a proposed use is consistent with a comprehensive plan does not mean, ipso facto, that the land owner is entitled to the zoning change….It remains for the board of supervisors to determine when, if at all, growth consistent with the comprehensive plan should occur.”

While the Court of Appeals admitted that the reasons for the denial stated in the record were “sparse,” it nonetheless determined that the comprehensive plan did not mandate a residential designation for land with a CSR of less than 50.  The plan does state that the county will “strive to preserve agricultural land, placing emphasis on” areas with a CSR of 50 or greater.  The plan lists other factors for consideration aside from agricultural land protection, such as the “protection of environmental features and sensitive areas” and the “quality of life.”

Justice Miller filed an opinion concurring in the result, but finding fault with the majority’s reasoning.  He particularly took issue with the fact that the board of supervisors, almost simultaneously, approved a similar rezoning request for a tract of land known as the Lakefield Estates Subdivision.  Justice Miller compared several relevant factors among the two requests:

(1) the comprehensive plan designates the Francis tract for future residential development, but identifies the Lakefield Estates tract as one that should remain agricultural;
(2) the Francis tract has a CSR of less than 50, while the Lakefield Estates land has a CSR greater than 64;
(3) the Francis tract has numerous nearby residences, while the area surrounding the Lakefield Estates land remains predominately agricultural;
(4) the Francis tract is adjacent to a blacktop highway, while the Lakefield Estates tract does not have direct access to a paved road;
(5) the Lakefield Estates tract is in a floodplain, while the Francis tract is not.

Nevertheless, Justice Miller concurred in the result despite the fact that the board’s two decisions “may be difficult or impossible to reconcile….It may be the board’s approval of the Lakefield Estates…rezoning…and not its denial of the Francis request, that arguably violates the comprehensive plan.”

Council is proper party in claim of illegality of zoning amendment

by Gary Taylor

Rude v. City of Mapleton Board of Adjustment
(Iowa Court of Appeals, May 29, 2009)

Claim that zoning amendment is inconsistent with comprehensive plan must be brought against city council within 30 days of council decision.

In 2006 Long Lines Wireless applied for a special use permit to construct a cell tower on land it intended to purchase in Mapleton.  A public hearing was held by the Mapleton board of adjustment, at which Ronald Rude voiced objections, stating that the city zoning ordinance did not permit cell towers.  Long Lines withdrew its application.  The planning and zoning commission later recommended text changes to the ordinance to accommodate cell towers, and in June 2007 the city council adopted those changes.  Long Lines resubmitted its application and in November 2007 the board of adjustment issued a special use permit.  Long Lines completed construction of its tower in December 2007.  In the same month, Rude filed a writ of certiorari claiming the board of adjustment’s actions in granting the special use permit were illegal.  The district court dismissed the claim, and Rude appealed.

Rude raised two objections: (1) that the zoning amendments were adopted by the city council without consideration of the city’s comprehensive plan, and (2) that the special use permit granted Long Lines permission to violate the setback and frontage provisions of the zoning ordinance.

The Court of Appeals dispensed with Rude’s first claim by noting that Rude did not raise the issue at the special use permit hearing before the board of adjustment.  “An issue must first be presented to the agency [in this case, the board of adjustment] in order to be preserved for appellate review.”  The court also noted that the lawsuit was brought against the board of adjustment, not the city council.  The council was the legislative body that amended the ordinance.  To attack the legality of the ordinance it would have been necessary for Rude to file his action within 30 days of the city council’s adoption of the zoning ordinance amendments.

On the second claim, the Court of Appeals found that Rude was misinterpreting the city’s zoning ordinance with regard to the application of the setback regulations.  The amendments adopted in June 2007 were specifically applicable to cell towers, and the setback provisions in those amendments clearly supplanted those to be applied to other uses.

The Court of Appeals affirmed the district court’s decision in favor of the city.

Hudson Iowa rezoning consistent with its comp plan

by Gary Taylor

Marianne Craft Norton Trust v. City Council of Hudson, et.al.
(Iowa Court of Appeals, October 7, 2009)

Rezoning of parcel within city limits from suburban agricultural to rural residential consistent with comprehensive plan; did not constitute spot zoning.

Defendants, the Manatts and the Petersons, own 40 acres west of Highway 58, on the north side of the City of Hudson within the city limits.  The Marianne Craft Norton Trust owns adjacent property immediately south of the defendants’ property.  Although the land along both sides of Highway 58 leading out of town to the north is primarily agricultural, there are more than 20 rural residences in the area between the densely-settled part of the city and Highway 20, four miles to the north. 

The city adopted an updated comprehensive plan in October 2006 that designated 160 acres along the west side of Highway 58, including the defendants’ land and the land owned by the Trust, for future residential development.  In November 2006  defendants filed with the city council a request to rezone the 40 acres in question from A-1, Suburban Agriculture to R-5, Large-Lot Residential.  The plat submitted with the request showed 5 lots for development, ranging from 3 1/3 acres to over 4 1/2 acres, and two large undeveloped parcels.  The city planning and zoning commission voted in January 2007 to recommend approval of the rezoning.  After the required public hearings, the city council approved the rezoning request in April 2007.  In May 2007 the Trust filed a petition for writ of certiorari  with the district court, alleging the rezoning was “illegal, arbitrary and capricious, unreasonable, not based on substantial evidence, and an abuse of discretion.”   After taking testimony, reviewing exhibits and, with permission from the parties, visiting the area the court ruled in favor of the city and the defendants.  The court found the character of the area in question, while once primarily agricultural, has changed significantly and “visually appears to be more rural residential than agricultural.”  It found the city council gave proper reasons for approving the rezoning, and gave consideration to the appropriate factors.  It further concluded that “even if the rezoning does fit within the definition of spot zoning, it is not illegal,” in that there was a reasonable basis for making the distinction between the rezoned property and the surrounding property, and the rezoning was consistent with the comprehensive plan.  The Trust appealed the district court’s ruling.

The Court of Appeals affirmed the district court on all counts.  The Trust contended that the city council did not follow the elements found in Iowa Code 414.3 when considering whether to rezone the property and that the council, in performing a quasi-judicial function, should have made written findings with regard to each element.  The Court of Appeals disagreed, finding that “a primary consideration of [Iowa Code 414.3] is that the zoning be in accordance with a comprehensive plan.”   The minutes of the council meetings and the testimony of two council members at trial showed that the rezoning followed many of the land use goals stated in the comprehensive plan, and was consistent with the designation of the area for future residential use.  The Court of Appeals then, on its own, proceeded to relate the considerations of the rezoning to a number of the elements found in Iowa Code 414.3, and determined that although the evidence on some elements of the statute was mixed and could support a decision supporting or reversing the rezoning, the bulk of the evidence on the elements of section 414.3 supported the council’s decision.  “In addition, if the reasonableness of a zoning decision is open to a fair difference of opinion, courts do not interfere with the decision.”  The Court of Appeals did not address the district court’s conclusion that it “did not read Sutton v. City of Dubuque to require a council to issue written findings.”

The Court of Appeals judged the claim of illegal spot zoning against the three-part test in Perkins v. Madison County:  (1) whether the new zoning is germane to an object within the police power; (2) whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property; and (3) whether the rezoning is consistent with the comprehensive plan.  It also examined the considerations discussed in Kane v. City of Cedar Rapids, those being “the size of the spot zoned, the uses of the surrounding property, the changing conditions of the area, the use to which the subject property has been put, and its suitability for various uses.   It again ran through a number of facts from the record, and found particularly persuasive that the permitted uses in A-1, Suburban Agriculture and R-5, Large-Lot Residential were “quite similar and compatible,” that the character of the area was changing from agricultural to rural residential, and that the comprehensive plan contemplated future residential development in the area.   The court also observed that “in contrast to some other spot zoning cases, where the rezoned property was freed from some restrictions placed on the surrounding property, the rezoning in the case before us is more restrictive than the zoning on the surrounding property.”  The court concluded that the rezoning did not constitute an illegal spot zoning, nor were the council’s actions arbitrary, capricious or an abuse of discretion.

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