City Council member’s removal from office violated his procedural due process protections

by Gary Taylor

Burke v. City Council of City of Lansing
Iowa Court of Appeals, February 22, 2017

Members of the Lansing City Council voted to remove city council member William Burke from office for claimed violations of our open meetings law (OML).  On one occasion the council issued an agenda for a closed session “to discuss strategy in matters that are presently in litigation or where litigation is imminent.”  After the agenda was issued, the city clerk requested an opinion from the Lansing city attorney as to whether the two topics she understood to be up for discussion actually qualified for closed session under the OML.  The city attorney opined that the topics did not, in fact, qualify for closed session.  The clerk forwarded the memo to the city council members, including Burke.  Burke notified the clerk that he disagreed with the clerk’s characterization of the purposes of the meeting as the clerk had reported them to the city attorney.  When the scheduled meeting was held the council voted 2-1 to go into closed session, with Burke being one of the two council members to vote in favor.  Later, the council held another special meeting on an unrelated matter.  Twenty-four-hour notice was not given.

Tensions between the council and residents resulted in an investigation by the Allamakee County attorney into the council’s actions.  The county attorney filed a petition alleging the two meetings violated the OML.  The attorney retained to represent the council and its members concluded the county attorney had “made some legitimate allegations,” and predicted fines, costs and attorney’s fees will likely be assessed against each council member.  The attorney set forth a potential settlement strategy she had discussed with the county attorney that would require Burke to resign from the council in exchange for dismissal of the lawsuit.  After a closed session of the council which Burke did not attend, the mayor petitioned the council to remove Burke from office for “willful misconduct and maladministration in office” in his handling of several matters relating to OML which resulted in litigation against the city and members of the council.  After a special meeting, the council voted 4-0 to remove Burke from office (Burke abstained from the vote).  Thereafter Burke challenged his removal in district court, raising several issues with the council’s proceedings.  The district court denied Burke’s petition, and Burke appealed.  The sole issue considered by the Court of Appeals was procedural due process.

Burke argued that the removal proceeding was fundamentally unfair because each member of the council who voted on his removal had a pecuniary conflict of interest in deciding his fate, and the “council itself generated the factual record necessary to sustain its decision, which perpetuates its conflict of interest.”  The Court of Appeals determined that Burke did not receive a “fair trial in a fair tribunal” as required by the Constitution.  The council members understood that they would eliminate their own financial exposure for possible violations of the OML if they removed Burke.  Furthermore, the council combined the prosecutorial function (by authorizing initiation of the removal process) with the adjudicative function (by presenting their own witness testimony to document their own personal knowledge of the grounds for removal).

Because the removal proceeding violated Burke’s right to procedural due process, the Court of Appeals sided with Burke and reversed the order of the district court.

 

 

Awarding title to city under abandonment statute not an unconstitutional taking

by Gary Taylor

Nicol and Street v. City of Monroe
Iowa Court of Appeals, May 3, 2017

Nicol and Street took title to property in Monroe, Iowa by warranty deed in 2013.  Beginning in May 2013, and over the two years that followed, the city sent them five letters regarding their failure to maintain the property.  Nicol and Street failed to take action, and so in April 2015 the city filed municipal infractions against the couple for several violations regarding junk, vehicles, and garbage on the property.  After a hearing in August 2015 the court entered judgments assessing civil penalties, and ordering them to fully abate the violations.  They did not do so.  Additionally, they failed to pay property taxes since purchasing the property, and utilities were not turned on at the property after June 2015.

In January 2016 the city petitioned for title to the property, alleging it was abandoned under Iowa Code 657A.10A.  Nicol and Street moved for dismissal, alleging that the statute is an unconstitutional taking of private property for a public purpose without just compensation.  The court denied the motion, and found at the end of a bench trial that the property met the definition of “abandoned” under the statute.  It entered an order awarding title to the city, and the couple appealed.

Statutes are presumed to be constitutional, and to prove otherwise a petitioner must “negate every reasonable basis upon which the statute could be upheld as constitutional.”  In determining whether the statute is reasonable, courts consider “such things as the nature of the menace against which it will protect, the availability and effectiveness of other less drastic protective steps, and the loss which appellants will suffer from the imposition of the ordinance.”

The Court of Appeals reviewed the procedural safeguards incorporated into 657A.10A, including that the city cannot act less than 60 days from the filing of the petition and must show that the owner did not make a good-faith effort to comply with the order, and concluded that awarding title to the property is a reasonable “final resort against those property owners who have otherwise failed to comply with housing codes, building codes, nuisance laws, or tax assessments when less drastic steps toward compliance have failed.”  It further noted:

Even in the event of a complete taking, the State is not required to compensate a property owner if it can show that the owner’s bundle of rights never included the right to use the land in the way the regulation forbids….657A.10A provides a sanction for those who use their property in a manner that was already prohibited.  Because the statute does no more than duplicate the result that could have been achieved in the courts by adjacent landowners under the law of private nuisance, or by the State [in the case of public nuisances] it is not a constitutional taking for which compensation is required.

Judgment for the city of Monroe.

Untimely Filing Fatal to Appeal of Board of Adjustment Decision

McCleary v. City of Des Moines Zoning Board of Adjustment
(Iowa Court of Appeals, April 19, 2017)

In September 2014, McCleary applied to the Des Moines Zoning Board of Adjustment seeking several conditional use permits and variances to allow him to operate a pet boarding business out of his home. A public hearing was held on September 22. The board voted to deny all of McCleary’s requests on October 23, 2014. On November 25, 2014 McCleary filed a petition for writ of certiorari appealing the board’s decision. Because of constitutional claims, the case was first sent to federal court. On March 11 the federal district court dismissed all McCleary’s federal claims and the case was remanded to state court.

On October 6, 2015 the Board of Adjustment filed a motion to dismiss arguing that McCleary’s petition for a writ of certiorari was late. State law allows for appeals to be filed only in the 30 days after a decision is made final. On November 2, McCleary filed a motion to disqualify the board’s attorney as that same attorney had previously represented McCleary in another matter. The district court determined on December 18 that McCleary’s petition was indeed untimely. The court also concluded that the plaintiff did not provide substantial evidence that his prior relationship with the defendant’s attorney bore “any relationship to the instant matter.” The district court granted the board’s motion to dismiss.

McCleary appealed that dismissal to the Iowa Court of Appeals. They reviewed the district court’s decisions in the areas of the timeliness of McCleary’s appeal as well as whether the board’s counsel should have been disqualified.

Timeliness Iowa Code section 414.15 establishes the right to appeal a decision from a zoning board and provides “[s]uch petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.” Because McCleary filed his appeal more than 30 days after the board made its decision, the district court did not have jurisdiction to hear it. McCleary asserted that his motion for declaratory relief was not subject to the same timeliness requirements as writs of certiorari. The Court of appeals disagrees. “Regardless of the avenue of relief McCleary chose, he was still appealing the decision of the zoning board and was subject to the statutory requirements of such an appeal.”

Disqualifying Counsel Because the attorney representing the board had previously been involved in representing McCleary, he claimed that the attorney should be disqualified.In determining if a prior relationship is enough to disqualify an attorney the court must determine if the two matters are substantially related. To do so, the court examines three factors:

  1. the nature and scope of the prior representation;
  2. the nature of the present lawsuit; and
  3. whether the client might have disclosed a confidence to [their] attorney in the prior representation which could be relevant to the present action.

The attorney described their prior relationship as, “providing a model letter of intent for a business purchase and reviewing a draft of the letter written either by [the former partner] or by Mr. McCleary.” He also stated that he, “did not meet Mr. McCleary in person and recall no further involvement in the transaction.” McCleary claims a connection exists because the prior representation involved the same property on which he eventually attempted to establish his pet boarding business.  The court failed to see how assisting McCleary’s representation in the property transaction would make him privy to any information that would be relevant to this zoning variance request.

On both matters the court of appeals affirmed the ruling of the district court.

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

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.

When suing county, failure to serve notice on county is not a minor procedural error

by Gary Taylor

Dewit and Dewit v. Madison County Zoning Board and Madison County Zoning Board of Adjustment
Iowa Court of Appeals, September 13, 2017

In March 2015 the Madison County Zoning Office filed civil infractions against the Dewits for several zoning ordinance violations.  The case number assigned to these infractions was CVCV034188.  These infractions were resolved through a consent order in September 2015 which required the Dewits to abate the violations within six months (by February 2016).  After the consent order was issued, the Dewits filed an application for an agricultural exemption from the county’s zoning ordinance, which the county zoning administrator denied.  On appeal, the Madison County Zoning Board of Adjustment (ZBA) affirmed the denial.

On April 20, 2016 the Dewits filed a petition for writ of certiorari challenging the ZBA’s decision; however, they filed it in the civil infraction case CVCV034188.  The county attorney accepted service of the petition, but the original notice was not included in the materials sent to or accepted by the county attorney.  The county moved to dismiss the petition on the ground that the petition should have been docketed as a new action and not as a filing in the civil infraction case.  On June 7, 2016 the district court denied the motion to dismiss, and ordered the clerk of court to transfer the petition and all related filings to the appropriate docket and to assign a new case number to the petition.

The ZBA then filed a motion to dismiss on September 1, 2017 for failure to timely serve original notice on the board.  The next day the Dewits served notice on the ZBA, but this was 135 days from the original filing of the petition on April 20.  (Iowa Rules of Civil Procedure require original notice to be served on a defendant within 90 days of filing a petition).

The Dewits contended that the original notice was served on the ZBA 80 days from the day the district court transferred the petition to a new docket with a new case number; however, at the time the district court specifically ordered that the petition “would relate back to and be deemed to have commenced on the date of filing, April 20.” Thus service of the original notice did fall outside the 90 day window.

The Dewits also contended that the county attorney’s acceptance of the petition alone is sufficient to comply with Iowa Rules of Procedure.  The court rejected this as well.

The original notice and petition are separate and distinct….The contents of the original notice are prescribed by rule.  In contrast, the petition is a pleading that sets forth a simple and concise statement of the claim or claims at issue. [While] it is true Iowa courts are committed to liberal construction of the rules of procedure to insure resolution of disputes on their merits, the failure to timely serve original notice cannot be deemed a minor or technical error.

The district court did not err in dismissing the Dewits’ petition.

Courts Defer to Staff and Board of Adjustment Interpretation of Code

by Eric Christianson

Doss and Huffer vs. Ames Zoning Board of Adjustment
Iowa Court of Appeals, February 22, 2017

The City of Ames received a complaint that Angela Doss and Duane Huffer were building a fence in violation of the city’s zoning ordinance. The fence was 6 feet high and located in their backyard abutting other residential properties. The city determined that the fence was indeed in violation of the following section of code and notified the homeowners in a letter.

The maximum height of fences in any setback abutting a street right-of-way is four (4) feet, except that up to six (6) feet of fence is allowed in any side or rear setback if:

(a) The lot does not abut the front yard of any other residential property along the same side of the street;
(b) The fence is at least (5) feet from the property line abutting a street right-of-way.

-Ames City Ordinance § 29.408(2).

The homeowners appealed staff’s decision to the Ames zoning board of adjustment. The board unanimously denied the homeowners’ appeal. The homeowners appealed to district court alleging:

  1. the Board misinterpreted the ordinance because it was not clear on its face whether the semicolon between (a) and (b) meant “and” (conjunctive) rather than “or” (disjunctive);
  2. the city enforced the ordinance inconsistently, only in response to complaints;
  3. the city’s delay before sending the December letter precluded enforcement on procedural grounds and laches;
  4. the city’s interpretation of the ordinance creates a notice issue in violation of due process; and
  5. the city’s fence ordinance conflicts with Iowa’s partition-fence law.

The district court ruled that the partition-fence issue was not preserved for its review and resolved the four other issues in favor of the board of adjustment.

The homeowners appealed to the Iowa Court of Appeals. The court cited an earlier decision that, “the court may not substitute its decision for that of the board.” The decision of the board of adjustment is given a strong presumption of validity. In all other issues as well, the court affirmed the holding of the district court.

Dangerous Conditions Cause Mobile Home Park to Lose Legal Nonconforming Status **Decision overturned**

The decision discussed below has been overturned by the Iowa Supreme Court. 

This post will be left as it was, but please read the Iowa Supreme Court’s Ruling on Des Moines v. Odgen for an update to the case.

by Eric Christianson

Des Moines v. Ogden
Iowa Court of Appeals, June 7, 2017

Frank Ogden owns and operates a nonconforming mobile home park on the south side of Des Moines. He purchased the property in 2013 from his uncle. The property consists of a narrow u-shaped access road with mobile homes around the interior and exterior of this road. Although the 1953 Des Moines zoning ordinance prohibited mobile home parks in the city, the owner of the property obtained a certificate of occupancy for the mobile home park in 1955. The historical record is not clear, but its use as a mobile home park dates back to some time between 1947 and 1955.

The best record documenting historical use is an aerial photograph from 1963. The photograph depicts “permanent homes that are in close proximity to each other with additional structures attached to the homes.”

Current photographs depict the property as:

[A] congested, dilapidated, and hazardous jumble of structures. Many of the mobile homes are within feet of each other based on the addition of porches, decks, and living space. Residents park cars throughout the property narrowing portions of the already inadequate access road. Bulk trash items—such as tires, boats, and storage bins—are littered throughout the property. Grills, fences, gardens, and children’s toys also crowd the property.

The city did not issue any warnings or citations regarding the use of the property as a mobile home park until 2014. In 2014, a zoning administrator notified Ogden by letter of numerous violations of the 1955 Des Moines Municipal Code, under which the original certificate of occupancy had been awarded. These included setback violations, failure to maintain the access road, and additions to trailers among other issues. The letter also warned that the park’s violations posed a threat to the health and safety of the occupants.

Ogden did not take any action to remedy the violations. In October 2014, the city sought an injunction to close the park for the above listed violations. At trial the Des Moines Fire Marshall testified that the proximity of the mobile homes and the narrow access road created potentially dangerous conditions for residents.

The trial court found the fact that the occupancy permit was issued is proof enough that the property was in compliance with the above regulations at the time that the legally nonconforming use was established. This means that Ogden had the right to continue his nonconforming use subject to the laws in place in 1955 as long as the nature and character of the use as it existed in 1955 is not changed.

The court held that even under the laws in place in 1955, the certificate of occupancy should be revoked as the park poses a threat to “the safety of life or property”. The court also held that, “’use of [the] property has intensified beyond acceptable limitations’ because the conditions ‘pose a real threat in the event of an emergency.’”

Ogden appealed to the Iowa Court of Appeals arguing that the court was wrong to find that the nonconforming use posed a threat to life or property and that the use had been unlawfully expanded. He also argued that estoppel prevents the city from obtaining an injunction.

In addition to procedural questions relevant to this case the Court of Appeals examined the questions of nonconforming use and whether estoppel prevented the city from obtaining an injunction to close the park.

Nonconforming Use A nonconforming use is “one that lawfully existed prior to the time a zoning ordinance was enacted or changed, and continues after the enactment of the ordinance even though the use fails to comply with the restrictions of the ordinance.” A nonconforming use may continue indefinitely until abandoned, but it may not be “enlarged or extended”. The Des Moines Municipal Code adds that a nonconforming use may lose its protected status if discontinuance is “necessary for the safety of life or property”.

The Iowa Supreme Court has never ruled on whether the addition of structures or the expansion of homes in a mobile home park constitutes and an unlawful expansion of the nonconforming use. Other state courts, however, have found that replacing mobile homes with larger models or enlarging existing mobile homes in violation of setback requirements may constitute an unlawful intensification of the nonconforming use.

The Appeals Court found that:

Although this mobile home park has not changed in size or use, the record demonstrates it has grown within its borders in the numbers and location of structures attached to the mobile homes resulting in a narrowing of open space on the roadways and between the homes. […] these changes over a half century have enhanced and intensified the non-conforming use to the point where it is a danger to life and property. […] Ogden’s use of the property is not a lawful intensification of an existing nonconforming use. The present congestion and crowding between structures and narrowing the roadway changes the nature and character of the 1955 non-conforming use and presents a danger to residents and neighbors of the park.

Equitable Estoppel Further, Ogden argued that equitable estoppel bars the city from closing the mobile home park. The Court Defined equitable estoppel as, “a common law doctrine preventing one party who has made certain representations from taking unfair advantage of another when the party making the representations changes its position to the prejudice of the party who relied upon the representations.”

The court states that to prove estoppel Ogden must demonstrate:

  1. a false representation or concealment of material fact by the city,
  2. a lack of knowledge of the true facts by [Ogden],
  3. the city’s intention the representation be acted upon, and
  4. reliance upon the representations by [Ogden] to their prejudice and injury.

The court found that Ogden’s claim failed under the first element of the test. The city’s failure to enforce the zoning ordinance does not amount to false representation or concealment of material fact. The city does not notify property owners of every infraction. Instead the city’s enforcement is triggered by complaints.

The court affirmed the grant of the city’s request for an injunction against Ogden’s use of the property as a mobile home park.

Chief Judge Danilson partially dissented. He argues that the city failed to prove either that the mobile home part exceeded its original non-conforming use or that it poses a threat to the safety of people or property. In his opinion, there is no conclusive evidence of the condition or number of homes in the part in 1955, and the size and use of the park have not changed. He argues that although the condition of the park has likely deteriorated, there are less dramatic ways to improve conditions in the park.

Further, Danilson argues that there is insufficient evidence to conclude that the park poses a danger to people or property. The city or fire department have not taken any actions based on unsafe conditions, and the fire chief’s testimony was too general to draw any specific conclusions about the park’s safety.

Constitutional claims not preserved in defense to nuisance citation

by Hannah Dankbar and Gary Taylor

Beaver and Sanderson v City of Davenport
Iowa Court of Appeals, April 27, 2016

Clifford Beaver and Pamela Sanderson have lived as common law husband and wife at their property in the City of Davenport for the past 14 years.  In 2014 the City sent a letter to  Beaver and Sanderson declaring their property a public nuisance under Davenport Municipal Code §8.12, after several neighbors circulated a petition seeking the property to be declared as such. The City’s letter explained that Sanderson’s “erratic behavior” prevented multiple neighbors from enjoying their property. The letter detailed nine directives regarding the activity on and around the property, including prohibitions against “criminal related activity”, harassment of neighbors and guests, calling authorities without cause, accosting people parking on the street, letting their dog run without a leash, and restrictions on using security cameras.  The letter warned Beaver that failure to abate the nuisance could result in citations and fines.

Beaver requested an appeal hearing. After a two-day hearing in April at which seven police officers and seven neighbors were called as witnesses, the hearing officer determined that there was sufficient evidence to support the nuisance abatement and approved the “Nuisance Abatement Plan” which included seven directives. One of the directives prohibited recording or pointing security cameras at any part of any neighboring structure.

Beaver challenged in district court the legality of the hearing officer’s order. The court ruled in favor of the City and Beaver appealed.

On appeal, Beaver argued the district court wrongly upheld the city’s abatement order that declared his property a public nuisance. He presented two claims: (1) “Davenport’s Nuisance and Residential Camera Statutes are unconstitutional on their face; and (2) unconstitutional as applied to his situation.

The court concluded that these challenges were not preserved for their review. These two claims were not presented in district court and therefore cannot be ruled on in the appeal.

The only constitutional claim that was addressed in district court was regarding the residential-camera regulations. Beaver claimed that the City’s ordinance unconstitutionally restricted his “right to maintain surveillance for the purpose of monitoring or protecting [his] property.” The ordinance limits the camera’s field of view to less than fifty-percent of a neighbor’s property. The court determined that this balances a property owner’s right to survey their property with their neighbor’s right to privacy.

On appeal, Beaver claimed that the hearing officer misapplied the camera ordinance. This specific attack on the abatement order was not ruled on in district court, so the appeals court refused to rule on it.

On appeal, the court did not reach any conclusions on the propriety, constitutionality or enforceability of the City’s order due to the issue of preservation. Because of these issues the orders from the lower court were affirmed.

 

 

 

 

 

Prestage Farms CAFO in Poweshiek County not protected from nuisance suit by Iowa Code

by Gary Taylor

Patricia McIlrath v. Prestage Farms of Iowa, LLC
Iowa Court of Appeals, November 23, 2016

The McIlraths purchased their farm in rural Poweshiek County in 1971.  Their son and his family also live on the farm, in a house about 300 feet from the original farmhouse where Patricia and her husband live.  In 2012 Prestage Farms built an animal confinement facility (CAFO) for 2,496 hogs about 2,200 feet from the McIlrath’s home.  In July 2013, the McIlraths brought suit against Prestage, claiming the odor from the CAFO constituted a nuisance.  Prestage requested summary judgment prior to trial, claiming immunity from the suit based on Iowa Code 657.11(2) (Iowa’s right-to-farm legislation), but the Poweshiek District Court granted summary judgment in favor of the McIlraths on this point, finding section 657.11 to be unconstitutional based on the Iowa Supreme Court’s ruling in Gacke v. Pork Xtra.  The Court found, even if the statute was not unconstitutional based on the facts of the case, the statute would not provide immunity to Prestage Farms if (1) the CAFO unreasonably and for substantial periods of time interfered with the person’s comfortable use and enjoyment of the person’s life and property, and (2) the CAFO failed to use existing prudent generally accepted management practices reasonable for the operation.  The jury returned a verdict affirmatively determining that both points were met by the evidence.  It awarded damages of $100,000 for loss of past enjoyment, $300,000 for loss of future enjoyment, and $125,000 for diminution of property value.  Prestage appealed.

The Court of Appeals first examined Prestage’s claim that Iowa Code 657.11 in fact confers immunity from nuisance claims in the present case.  The court focused on the following passage from Gacke:

Property owners like the Gackes bear the brunt of the undesirable impact of this statute without any corresponding benefit.  Moreover, their right to use and enjoy their property is significantly impaired by a business operated as a nuisance, yet they have no remedy.  Unlike a property owner who comes to a nuisance, these landowners lived on and invested in their property long before Pork Xtra constructed its confinement facilities.  Under these circumstances, the police power is not used for its traditional purpose of insuring that individual citizens use their property “with due regard to the personal and property rights and privileges of others.”  [citation omitted].  Instead, one property owner—the producer—is given the right to use his property without due regard for the personal and property rights of his neighbor.  We conclude that section 657.11(2) as applied to the Gackes is unduly oppressive and, therefore, not a reasonable exercise of the state’s police power.  Accordingly, the statutory immunity violates article I, section 1 of the Iowa Constitution and may not be relied upon as a defense in this case.  We express no opinion as to whether the statute might be constitutionally applied under other circumstances.

The Court of Appeals concluded that in all relevant aspects, the factual situation in the present case was substantially similar to that presented in Gacke, making 657.11 unconstitutional in the present case.  There was no evidence McIlraths received any benefit from the statute, and they lived on and made improvements to their property long before the CAFO was built.

Prestage claimed several irregularities in the trial proceedings warranted a new trial; however, the Court of Appeals rejected all Prestage’s claims. Similarly, the court rejected all claims of Prestage that the evidence submitted at trial was insufficient to support the jury’s conclusion of liability and award of damages.

Creek stabilization plan went beyond scope of original drainage easement

by Hannah Dankbar and Gary Taylor

Hamner v City of Bettendorf
Iowa Court of Appeals, October 12, 2016

Property owners in the Rolling Meadows subdivision complained that the City of Bettendorf overstepped their powers when they used a 25-foot “utility and drainage easement” established in 1968 for a stream bank stabilization project in 2015. Property owners claimed that the use of the 25-foot easement for stream bank stabilization constituted a taking and argued that they should be compensated for the land. The City did not offer any compensation for the removal of trees, change in land elevation, or the regrading of the property owners’ land.

The City argued that it was in the public interest to stabilize the creek, and that the easements granted in 1968 contemplated the type of work conducted by the City in 2015; thus the landowners were not entitled to compensation.

The district court ruled in favor of the landowners because the 1968 easement was granted to maintain the sanitary sewer, storm sewer, Stafford Creek drainage, and utility poles. The court determined that stabilizing the creek overstepped the City’s powers.  The City appealed.

On appeal, the Iowa Court of Appeals used a three-part test to evaluate the scope of the easement: 1) the physical character of past use compared to the proposed use; 2) the purpose of the easement compared to the purpose of the proposed use; and 3) the additional burden imposed on the servient land by the proposed use.

Physical character of past use compared to the proposed use. The City planned to remove all trees and foliage, install a retaining wall on one side of the creek, and place twenty-five tons of rocks along both sides.  The court concluded that this work would substantially change the physical character of the past use of the properties.

Purpose of the easement compared to the purpose of the proposed use.  The court found that while the proposed work did pertain to drainage in a general sense…the purpose of the project was to reshape Stafford Creek and the surrounding creek bed to cure past erosion and prevent future erosion.

Additional burden imposed on the servient land by the proposed use. The landowners presented estimates from a consultant of the loss of value of their properties ranging from $27,500 to $30,250.  This suggested a burden way beyond that contemplated by the original easement

The court determined that the original grantors of the easements did not “contemplate the expansive use of the easement now sought” by the City, and that the radical changes to the land demanded compensation to the landowners under Article I, Section 18 of the Iowa Constitution (the Takings Clause).

 

 

 

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