Tag: Iowa Court of Appeals

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

Gary Taylor

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.

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Creek stabilization plan went beyond scope of original drainage easement

hdankbar

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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Community group did not have standing to challenge rezoning denial

hdankbar

by Hannah Dankbar and Gary Taylor

Iowa Coalition Against The Shadow (ICATS) and Rockne Cole v City Council of Iowa City
Iowa Court of Appeals, January 27, 2106

Iowa City owned property zoned as “Neighborhood Public Zone” (P-1) that was no longer needed for city purposes.  The City Council requested developers to submit proposals, and accepted a proposal for a twenty-story building that would have both commercial and residential units. The proposed building would require the property to be rezoned as CB-10, which contains no height restrictions.  Cole and others filed an application to rezone the property to “Central Business Support Zone” (CB-5) to prevent a building that height from being constructed (CB-5 allows for mixed-use buildings that are less than 75 feet fall). None of the rezoning applicants owned property neighboring the parcel in question or sought to purchase the property to erect a building to comply with CB-5 zoning.  Their application urged the City Council to “protect our cherished commons, and allow future generations of children to enjoy the bright sunlight at Chauncey Swan Park without a 20 story tower looming over them.

The Planning and Zoning Commission held multiple meetings, and ultimately recommended denial of the rezoning application.  The City Council ultimately denied the request.  this left the property as P-1

Cole and ICATS filed a petition for a writ of certiorari claiming that the denial of the rezoning application was arbitrary and discriminatory because City Council had prejudged the issue and intended to grant CB-10 to accommodate the development. They argued that CB-10 zoning violated the comprehensive plan and Iowa Code section 414.3 (2013) and was illegal spot zoning. The district court determined that Cole and ICATS did not have standing because they did not suffer an injury and did not have a vested interest in the property. Cole and ICATS appealed the decision.

On appeal, Cole argued that because he applied for rezoning he had standing. ICATS claimed that they had standing to assert the rights of its members in challenging the rezoning denial.

To determine whether a person has sufficient interest to challenge a zoning decision Iowa is guided by a decision of the Florida Supreme Court: “(1) proximity of the person’s property to the property to be zoned or rezoned; (2) character of the neighborhood, including existence of common restrictive covenants and set-back requirements; (3) type of change proposed; and (4) whether the person is on entitled to receive notice under the zoning ordinance.” (Renard v. Dade County, 261 So. 2d 832, 837 (Fla. 1972)).

The court applied those factors to this case and determined that neither Cole nor ICATS had standing. There is nothing in the character of the neighborhood or the proposed zoning change that indicates Cole or ICATS had a particular interest in the change. They were interested in the change primarily so community members could enjoy the sun, but people with only a general interest shared by the public are not permitted to initiate action to promote judicial enforcement or interpretation of zoning regulations.

In addition to affirming that neither Cole nor ICATS had standing, the court also agrees that leaving that property zoned P-1 furthered the interest of ensuring residents can enjoy the sun. The specific injury that was the concern of Cole and ICATS (blocking the sun) did not occur by the denial of the rezoning application. Also, if the rezoning application was approved, there was nothing to prevent the developer from submitting an application to rezone the property to CB-10, so this zoning application did not necessarily prevent the injury Coke and ICATS sought to avoid.

The decision of the district court was upheld.

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Subjective desire to maintain building insufficient to overcome determination of ‘abandoned building’

hdankbar

by Hannah Dankbar

City of Harlan v Walter Rogers
Iowa Court of Appeals, January 27, 2016

Rogers obtained a house built in 1885 after the death of his father-in-law in 2004.  Rogers made minor maintenance to the property at that time, such as fixing a leaky roof and cleaning up the yard, but Rogers lived in California and had problems maintaining the property. Between 2007 and 2014 Rogers received and paid a dozen special assessments. Nobody lived in the house during this time.  Also during this time, the house was broken into multiple times and multiple antiques were stolen.

In 2011 Harlan police received a nuisance complaint about the house. As a result of that call a Shelby County Environmental Health Specialist inspected the property who reported that is was, “very apparent that the owners have let this property go for many years without any maintenance or upkeep.”

In 2012 the City filed its petition under section 657A.10A and sent Rogers an order stating that the house and garage were a nuisance and were in violation of local housing codes. Because Rogers made “substantial compliance with the pre-condemnation demands” made by the City, both parties filed for a continuance multiple times. In September 2014, however, Rogers’s attorney moved to withdraw from the case stating that Rodgers had not followed the advice of the attorney. After that, Rodgers represented himself in trial in January 2015. The Shelby County Environmental Health Specialist did a final assessment of the house and found that the house still did not comply with the City housing code.  The trial court concluded that the property posed a danger to neighboring properties and residents because of its’ condition.  The court declared the property abandoned and awarded the title of the house to the City. Rogers appealed this decision.

Rogers argued that the district court should not have determined that the property was abandoned. Iowa Code section 6577A.1(1) defines an “abandoned” building as one that “has remained vacant and has been in violation of the housing code of the city in which the property is located…for a period of six consecutive months.” The code offers a list of factors a court “shall consider” to determine whether a property has been abandoned. Rogers argued his desire to “maintain his ownership in the property in Harlan” is sufficient to overcome the conclusion that the property was abandoned, but the court did not agree. Even though Rogers was up to date on his property taxes and special assessments, the house did not have utilities for more than twelve years and was vacant during this entire time. According to inspectors the house did not meet code for human habitation; it was not a house that would be habitable simply by turning on the utilities. Rogers claimed he was working on getting the the house fixed and intended to move into it upon his retirement, but the court stated that Rogers subjective desire to maintain the property was not the controlling factor.  Because the property has been vacant for more than six months, the court determined that it met the statutory test for a abandoned property and ruled in favor of the City.

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Links to law presentations from 2015 APA-Iowa Annual Conference

Gary Taylor

The powerpoint presentations from the 2015 APA-Iowa Annual Conference held in Sioux City on October 14-16 are now available here.

Thursday afternoon session on Signs and Cell Towers, by Peter McNally, Dustin Miller and Gary Taylor

Iowa APA 2015 Cell Towers
Iowa APA 2015 Signs

Friday morning AICP Law session by Gary Taylor

Iowa APA 2015 Law session

cell towers, Education/Conferences, Federal courts, Federal legislation, Iowa Court of Appeals, Iowa legislation, Iowa Supreme Court, Signs and billboards , , , , , ,
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Notice posted in internal hallway of building “reasonably calculated to apprise the public of the information”

Gary Taylor

by Gary Taylor

City of Postville, et al v. Upper Explorerland Regional Planning Commission
Iowa Court of Appeals, June 10, 2015

This case came back to the Court of Appeals on remand from the Iowa Supreme Court.  In its 2013 decision the Supreme Court determined that there was a genuine issue of material fact on the issue of whether placing notices of Upper Explorerland Regional Planning Commission (Commission) meetings on a bulletin board in the building’s interior hallway outside the meeting room complied with Iowa’s Open Meetings Act.

Iowa Code 21.4 provides in part:

…[A] governmental body shall give notice of the time, date, and place of each meeting including a reconvened meeting of the governmental body, and the tentative agenda of the meeting, in a manner reasonably calculated to apprise the public of that information. Reasonable notice shall include advising the news media who have filed a request for notice with the governmental body and posting the notice on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose at the principal office of the body holding the meeting, or if no such office exists, at the building in which the meeting is to be held.

The facts relevant to the issue raised were recited by the Court of Appeals:

“The bulletin board is approximately thirty to forty feet from the main public access door.  The board is not visible from the entrance door to the office.  The office is open to the public Monday through Friday from 8:00am to 4:30pm…. The testimony indicated the bulletin board was visible from the reception area, but the board’s contents were not.  The Commission’s secretary testified that you could not specifically see what was on the bulletin board from the reception area.  The meeting notices have been posted on the same bulletin board in the same hallway outside the room where the Commission has met for at least twenty years.  While the general public did not regularly frequent the hallway, or the Commission’s building itself, the public was not prohibited from entering or viewing the contents of the bulletin board.  The receptionist, who had worked at the Commission for thirty-two years, testified she never turned a member of the public away from the door. However, she could not recall any member of the public ever coming to the office to ask when and where the Commission met.”

Approximately ten years before the lawsuit was filed, the Commission installed a new bulletin board located in the reception area of the building immediately inside the front door, but the meeting notices continued to be posted on the original bulletin board down the hall outside the meeting room.  The Court of Appeals observed, however, that “there is no indication that posting the notice on the new bulletin board would have resulted in more members of the public being apprised of the meetings since the only people to frequent the building were those who had business with the Commission or had an appointment.”  The Court concluded that “the statute does not require the notice of the meeting be viewable twenty-four hours a day, or that it be in the most visible place available.  All that is required is that the Commission substantially comply with the requirement that the notice be posted ‘in a manner reasonable calculated to apprise the public of the information.'”   Substantial evidence was present to support the district court’s conclusion that the Commission had met this standard.

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Agland preservation district statutes not relevant to rezoning application. No conflicts of interest found, either

Gary Taylor

by Gary Taylor

Miller v. Grundy County Board of Supervisors and MidAmerican Energy
Iowa Court of Appeals, April 22, 2015

In August 2013 MidAmerican Energy requested to rezone approximately 1,200 acres in Grundy County, Iowa from A-1 Agricultural to A-2 Agricultural.  MidAmerican had “Wind Farm Option Agreements” on the acres to be rezoned, and A-2 zoning would allow MidAmerican to place larger wind turbines on the land than those that would be permitted by A-1.  The Grundy County Planning and Zoning Commission voted 6-1 to recommend denial of the request at its September 2013 meeting; however, the Grundy County Board of Supervisors went against this recommendation and voted 4-0 to approve the rezoning at its meeting later the same month (one supervisor recused himself due to a conflict of interest).   Susan Miller, a nearby landowner, appealed the decision to district court, where the appeal was dismissed.  Miller then appealed to the Iowa Court of Appeals.

Miller’s first issue on appeal was that the Board of Supervisors acted illegally because it failed to comply with the requirements of Iowa Code 352.6, which requires supervisors to make specific findings before permitting non-agricultural uses in an “agricultural area.”   Chapter 352 authorizes the creation of agricultural preservation districts.  It does not address county zoning as enabled through Chapter 335 of the Iowa Code.  The Court of Appeals summarily stated that Chapter 352 is inapplicable in this case because “there is no evidence in the record that the Grundy County Board of Supervisors has ever designated any of the land involved in the zoning amendment as an ‘agricultural area'” as it is meant in Chapter 352.  “Nor, for that matter, is there any evidence in the record that any owner of any of that land has ever consented to the owner’s land being included in an area designated as an ‘agricultural area.'”  Simply zoning land as A-1 Agricultural does not of itself create or expand an “agricultural area” as defined in Chapter 352.

Miller’s second issue was that two of the supervisors who voted for the rezoning had conflicts of interest that required their recusal.  Citing Bluffs Development Co. v. Pottawattamie County Board of Adjustment the court noted that proof of a conflict of interest must be “direct, definite, capable of demonstration, not remote, uncertain, contingent, unsubstantial, or merely speculative or theoretical.”  One of the supervisors called out by Miller owns the AmericInn motel, which offers discounted rates to wind energy officials who stay there.  The court found that Miller was unable to offer evidence that any discounts received by wind energy officials were different than discounts available to anyone else staying there.  Without that evidence, or other evidence that the supervisor’s vote was significantly influenced by a pecuniary interest Miller’s claim failed as to the first supervisor.

The second supervisor has multiple relatives that own lands subject to “Wind Farm Option Agreements” with MidAmerican Energy; however, none of those lands were the subject of the 2013 rezoning request, and so the court concluded that any advantages to the supervisor or his relatives were “uncertain, speculative, and remote.”

The Court of Appeals affirmed the district court’s dismissal of Miller’s claims.

Conflict of interests and/or bias, Iowa Court of Appeals, Rezoning , , ,
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Lawyer must be present at meeting to invoke litigation exception to open meeting requirement

Gary Taylor

by Gary Taylor

Olinger, et al. v. Harrison County, Iowa, Utman Drainage District et. al.
Iowa Court of Appeals, March 25, 2015

The trustees for the Utman Drainage District went into closed sessions on November 7 and November 14, 2013, allegedly to discuss matters relating to pending litigation.  In court documents the trustees admitted that legal counsel for the district was not present at either meeting.  On November 25, 2013 Olinger and Meyer (plaintiffs) filed a petition alleging that both closed sessions were held in violation of the Iowa Open Meetings Act (OMA).  The parties requested the district court judge to conduct an in camera (private) inspection of the recordings of the meetings for the purposes of determining whether the records should be open to the public.  The district court did so, and filed an order on March 4, 2014 giving plaintiffs access to the November 7 recording (which merely contained a discussion of paying subpoenas from a previous lawsuit) but denying access to the November 14 recordings because the trustees were discussing strategies involving imminent litigation.  The court further ordered each trustee to pay a $100 fine for closing the November 7 meeting unlawfully (which the court later suspended on the condition that the trustees by a handbook on open meetings from the Iowa Freedom of Information Council).  Cross appeals were filed.

One issue presented, but not addressed in detail here, was whether the court could impose the $100 fine – and later suspend that fine – based solely on the court’s in camera inspection of the record.  The Court of Appeals determined it could not impose the fine without taking evidence on the question of whether the trustees knowingly violated the OMA.

The other issue was whether the trustees could invoke the “litigation” exception to the open meetings requirement without the drainage district’s attorney being present at the meeting.  Iowa Code Section 21.5 provides in part:

1.  A governmental body may hold a closed session only by affirmative public vote of either two-thirds of the members of the body or all of the members present at the meeting. A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons:
….
c.  To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.

The Court of Appeals found no ambiguity in that section.  Although the trustees argued that the placement of “or” in section 21.5(1)(c) (“matters that are presently in litigation or where litigation is imminent”) makes the presence of counsel optional, the court considered it clear that the phrase “discuss strategy with counsel” at the beginning of the sentence was meant to modify both “presently in litigation” and “where litigation is imminent.”  The court reviewed the legislative history of that subsection and found it supported its conclusion that in order to invoke the litigation exception the governing body’s lawyer must be present at the closed session, regardless of whether the governing body was in litigation or whether litigation was imminent.

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Landowner negligent in discharge of stormwater over neighbor’s property

hdankbar

by Hannah Dankbar

A.D., L.L.C. v 2004 SC Partners L.L.C.
(Iowa Court of Appeals, November 26, 2014)

2004 SC Partners L.L.C. is the current owner of Morning Hills Apartments.  A.D., L.L.C. bought property adjoining Morning Hills Apartments in 2009 and the two parties have had many conflicts since then. Starting in 2009 A.D. began to receive notices from the city of Sioux City and the Iowa Department of Natural Resources to solve a public nuisance relating to soil erosion and silting. The hillside between Partners and A.D. is highly erodible. A.D. filed an equity action in July 2011 petitioning to have Partners help solve this problem. A.D. sought money judgments for past damages and an order for Partners to abate the issue. Partners answered by saying this issue was already addressed in court and solved privately with A.D. saying they would solve the problem and that the damage was their fault. Partners filed a counter claim that A.D. had failed to comply with the settlement agreement and that they should stabilize the slope and to compensate Partners for the damage to their land from the prior suit.

In 2012 Partners filed a motion for summary motion, which A.D. resisted. A.D. said that the water damage is a result of Partners’ water drainage system that changed the natural flow of water and that they have failed to maintain the system. The district court cited the “general rule” that the dominant estate is entitled to drain surface water in a natural water course of the servient owner’s land, and if damage results the servient landowner is without remedy, unless there is a substantial increase in drainage that results in actual damage. Citing Oak Leaf Country Club v. Wilson, the court also observed, “A corollary of the rule is an overriding requirement that one must exercise ordinary care in the use of his property so as to not injure the rights of neighboring landowners.”

The court found the essential issue in this case to be whether Partners is discharging water in an unnatural manner, has changed the method of drainage in such a way that it has become liable for damages, or, stated another way, whether it is exercising ordinary care in the use of its property so as not to injure the rights of neighboring landowners.

It concluded there were questions of fact as to whether or not “Partners has violated a duty to use ordinary care in the maintenance of [its] property, and whether or not a private nuisance has been established.” The district court therefore denied the motion for summary judgment.

Both sides testified that they attempted to address the problem. A.D. built a retaining pond to accommodate the water and Partners asserted they would add piping, but were waiting for payment from the 2009 suit. A variety of engineers testified that the structure was not functioning to its’ maximum capacity. The court concluded A.D.’s petition had sufficient facts to plead an alternative claim of negligence. The court decided that Partners had a duty to be aware of dangerous property conditions (the degraded drainage system) and failed to fix the problem given a reasonable amount of time.

The trial court decided that A.D. suffered $92,800 in damages, but that it had purchased the property knowing there was a problem with the drainage system and had no plans to remedy the situation. The court decided that A.D. was 65%, and Partners 35%, at fault for the property damage. Under Iowa’s Comparative Fault Act Partners argued that A.D. therefore could not recover damages; however, the court found it could not conclude that something other than Partners’ failure to abate the drainage system was the only cause of damage to A.D.’s property. The court also ruled that the easement a dominant estate has on a servient estate cannot provide a defense to a negligence claim.

The court enjoined Partners from continuing to allow its drainage system to function without repair and order it to take whatever action is necessary to ensure that its drainage system is properly functioning at its own cost. The court ordered Partners to allow A.D.  access to Partners’ property, if required, to tie into a properly functioning drainage system, which will allow storm water to safely traverse A.D.’s property.

Iowa Court of Appeals, Negligence, water resources , ,
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Court remanded variance case to determine whether board relied on existing nonconforming use when approving variance

Gary Taylor

by Gary Taylor

Arnburg v. City of Earlham Board of Adjustment
(Iowa Court of Appeals, April 30, 2014)

Farmer’s Cooperative (FC) owns a number of grain bins in Earlham, and temporary grain storage bins outside the city limits.  These facilities predate Earlham’s zoning ordinance, and do not conform to existing zoning regulations.  FC purchased land adjacent to its existing operation where it intends to build additional grain bins, and filed an application to have the land rezoned from residential and commercial to “M-Industrial.”  The rezoning request was approved.  Later, FC requested a building permit for the additional grain bins, but was denied by the zoning administrator because the proposed bins would not comply with height or setback requirements.  FC filed a variance request with the Earlham Zoning Board of Adjustment (ZBA) to allow construction of bins with no setbacks, and heights that exceeded the height limitations.  The ZBA approved the variance, but Arnburg [presumably a nearby resident] filed an action in district court.  The district court remanded the case to allow the ZBA to hold an additional hearing and make written findings of fact.

At the rehearing FC presented evidence on the need for a variance, including economic data on the profitability of conforming structures and evidence of an agreement with the city showing that the city intended to ease the concerns of neighboring residents.  Local residents, on the other hand, presented evidence of existing problems with grain dust covering nearby homes and sidewalks, and discussed problems on nearby streets due to heavy truck traffic.  They also alleged that the proposed bins would create a safety hazard due to both their height and proximity to the lot lines.  The ZBA issued an oral and written opinion granting the variance, finding that the residents’ concerns had been addressed by an agreement between the city and FC, that the bins would not alter the character of the city, and that FC’s economic analysis proved the land could not be used profitably without the variance.  The case went back to district court, which affirmed the ZBA’s decision on summary judgment.

At district court Arnburg contended the ZBA acted illegally by allowing for the expansion of a nonconforming use.  The city disagreed that the existing bins are a nonconforming use, and the variance in fact expanded a nonconforming use even if the existing bins were judged to be such.  The Court of Appeals found that, contrary to the determination of the district court, a genuine issue of fact exists in the case that precludes summary judgment.  The Earlham Code concerning variances provides in part that: “no nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.”  In reviewing the ZBA’s findings of fact, the Court of Appeals found conflicting evidence as to whether that language was satisfied.  On the one hand, the ZBA found that the variance would not create a new business, but rather only expand an existing business.  The Court considered this to be evidence that the ZBA was not considering the height or setbacks of the building but rather the business itself.  On the other hand the ZBA also stated as justification for the variance the fact that FC “also has bins that exceed the local ordinance standards presently.”  With both these statements in the ZBA’s findings, the Court found that a genuine issue of material fact existed and remanded the case for further proceedings.

Iowa Court of Appeals, Non-Conforming Uses, Variances , ,
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