Tag: Iowa Court of Appeals

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.

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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.

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Effect on county tax base not relevant to decision to create rural improvement zone

Gary Taylor

by Gary Taylor

Homeowners Association of the Coves of Sundown Lake v. Appanoose County Board of Supervisors
(Iowa Court of Appeals, March 26, 2014)

The Homeowners Association of the Coves of Sundown Lake (Association) petitioned the Appanoose County Board of Supervisors (Board) to establish a rural improvement zone (RIZ) surrounding the lake for the purpose of diverting future property tax revenue growth towards making improvements in the Sundown Lake area.  The petition contained 172 signatures, representing at least 25% of the residents and 25% of the total assessed value of the proposed zone.  The Association requested a public hearing before the Board, and a hearing was held November 2, 2012.  Information was presented during the hearing concerning the need for improvements to the lake; most notably to alleviate the effects of silting.  The Board also discussed the requirements for establishment of a RIZ and the loss of revenue to the county if a RIZ was created.  The statutory requirements necessitating that the Board hold a hearing were not discussed; however, the Board denied the request on November 13 because the Association had failed to meet the statutory requirements for Board consideration, and also because of the loss of tax revenue to the county if a RIZ were created.  On appeal, the district court found the Board was precluded from examining whether the petition had satisfied the statutory requirements because the Board had in fact scheduled and held the hearing. The district court also concluded that the Board acted illegally in considering the impact of a RIZ on county tax receipts. The Board appealed to the Court of Appeals.

After confirming that the Association had standing to bring the initial suit before the district court, the Court of Appeals confirmed both conclusions of the district court.  First, the Court of Appeals examined the statutory scheme of Iowa Code 357H.1 through 357H.4 (procedures for creating RIZ) and concluded that once the Board called a hearing, the only matters it was empowered to consider were the merits of the petition, not whether the petition itself met the statutory requirements.

This interpretation avoids the element of unpredictability found in this case. The Board’s interpretation of the chapter would allow a board to set a hearing for the purpose of determining whether an improvement is needed, hold the hearing on the merits, and then confound the petitioners by deciding – after the hearing on the merits an without discussion – that the hearing itself should not have occurred.  We find nothing in the chapter to evidence a legislative intent to create such inefficiencies.

Second, the Court of Appeals affirmed that the Board was not to consider the effect of the RIZ on the county’s tax base.  “The chapter directs a board to establish a zone if the area is in need of improvements. The consideration is specifically and unambiguously limited to the needs of the area under consideration and does not include issues pertaining to the county as a whole….The Board acted improperly by considering the impact the zone would have on county finances.”  The Court of Appeals affirmed the district court order for the Board to consider the Association’s petition using a proper interpretation of chapter 357H.

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Action of Amana Colonies Land Use Board of Trustees in approving hotel and convention complex was quasi-judicial

Gary Taylor

by Gary Taylor

Catherin Oehl, et al, v. Amana Colonies Land Use District Board of Trustees
(Iowa Court of Appeals, March 26, 2014)

(Note: For those Iowans curious about the history of the special land use legislation affecting the Amana Colonies, Iowa Code 303.41 et seq.,  the facts of this case are repeated in detail.)

The Amana Colonies are unincorporated villages in Iowa County. In 1932, the Amana Society, a private corporation, owned the 26,000 acres in which the Amana Colonies are located. Development within the Amana Colonies was effectively managed by deed restrictions and covenants. In 1982, the Iowa Supreme Court held that land use restrictions in the deeds were invalid and unenforceable, effectively nullifying the informal land use control system governing development within the Amana Colonies. In response, the Iowa legislature authorized the creation of special land use districts for the purpose of preserving the “distinctive historical and cultural character” of the districts so created.*** Although the statutory language authorizing the creation of land use districts is phrased in general terms, the definition of eligible districts and legislative history make clear that the statute was created specifically to allow the residents of the Amana Colonies, collectively, to manage development in their historically and culturally significant community in a manner consistent with community traditions and values.

Voters in the Amana Colonies approved the creation of the Amana Colonies Land Use District (ACLUD), and elected a seven-member Board of Trustees. The Board adopted a Land Use Plan that emphasizes historic preservation. The Land Use Plan provides for the creation of Historic Preservation Districts (HPD). The Land Use Plan also establishes an Historic Preservation Committee (HPC) tasked with consideration of applications for Certificates of Approval (COA) for “[a]ny construction, alteration, demolition, or removal affecting a significant exterior architectural feature of any structure within an HPD.” The Board may issue a COA for construction of a structure in an HPD after review and recommendation by the HPC.

In May 2010, the Cutlers applied for a COA to build a hotel, convention center, and banquet complex as additions to their restaurant.  The HPC unanimously approved the proposal and sent it to the Board, where it was tabled for 12 months while multiple hearings were held.  The Appellants in this case opposed the COA and presented their views at these hearings. Then in 2011 the Cutlers presented an update application.  The HPC forwarded to the Board without a recommendation.  The Board initially voted 3-3 on that application, but after the Cutlers made changes to the proposal the Board reconsidered and voted 4-2 in favor of the application.  The COA was issued and the Appellants appealed to the ACLUD Board of Adjustment (BOA), which under Iowa Code 303.54 is empowered to “make special exceptions to the terms of the land use plan which are in harmony with its general purpose and intent and in accordance with the general or specific rules of the plan.”  The BOA determined it did not have the authority “to review and overturn the essentially legislative decision of the Board of Trustees to grant applications such as that of the Cutlers.”  Appellants then challenged the COA itself in a declaratory action filed in district court approximately 105 days after the issuance of the COA, and 70 days after the BOA decision. The district court dismissed the case as improper and untimely.

The Iowa Supreme Court stated in Sutton v. Dubuque that a certiorari action (as opposed to a declaratory action) is the exclusive remedy for challenging a quasi-judicial action, and such actions must be filed within 30 days of the decision being challenged.  The question in the present case, therefore, was whether the action of the Board of Trustees in issuing the COA was a quasi-judicial action.  The Court of Appeals determined that it was.  A tribunal is exercising quasi-judicial authority when “(1) the questioned act involves a proceeding in which notice and an opportunity to be heard are required; (2) a determination of rights of parties is made which requires the exercise of discretion in finding facts and applying the law thereto; or (3) the challenged act goes to the determination of some right the protection of which is the peculiar office of the courts.”  The Court of Appeals acknowledged that the Land Use Plan declares determinations about COAs to be “legislative policy determinations,” but further recognized from prior caselaw that it “must look to the nature of the act regardless of the label applied to it.”  In reviewing the record the court agreed that contentions by the Appellants that the Cutlers’ proposal did not meet several requirements found in the Land Use Plan – including those for yard size and parking – were all complaints that the Board did not properly apply the facts to the regulations – “complaints arising out of the Board’s quasi-judicial functions and not its legislative functions.”  Because the Board’s decision was quasi-judicial in nature, the Appellants’ failure to file a certiorari action in a timely manner warranted dismissal of the case.

———————————

 *** 303.41  Eligibility and purpose.

A land use district shall not be created under this subchapter unless it is an area of contiguous territory encompassing twenty thousand acres or more of predominately rural and agricultural land owned by a single entity which has within its general boundaries at least seven platted villages which are not incorporated as municipalities at the time the district is organized. The eligible electors may create a land use district to conserve the distinctive historical and cultural character and peculiar suitability of the area for particular uses with a view to conserving the value of all existing and proposed structures and land and to preserve the quality of life of those citizens residing within the boundaries of the contiguous area by preserving its historical and cultural quality.

 

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No constitutional right to operate a mobile vending cart

Gary Taylor

by Gary Taylor

Anthony Browne v. City of Iowa City
(Iowa Court of Appeals, February 19, 2014)

The city of Iowa City denied Anthony Browne’s application for a mobile vending cart permit.  He was one of eight applicants vying for six available permits to operate downtown.  The city created a matrix to score the applications.  One of the criterion in the matrix was past satisfactory experience working with Iowa City.  Because Browne had no prior experience with the city he received a low score on that criterion.  He ultimately finished seventh out of the eight applicants.  Browne requested and was granted a licensing hearing before the city council.  In the process he was provided with all emails and other communications concerning the permitting process.  The city council affirmed the denial.

Browne argued that the city violated his due process rights by, among other things, including what he referred to as a “seniority criterion” into the matrix and not giving him credit for successful experience working in other communities.  The district court ruled in favor of the city and the Court of Appeals affirmed.  Reviewing multiple federal and state cases, the court found that Browne has no constitutionally protected liberty or property interest in his unilateral expectation to receive a mobile vending permit.

Any right plaintiff has to earn a living through a food cart, like other intangible employment rights, arises from state law and does not spring from the fundamental guarantees of the Constitution. Municipalities in the United States have a history of stringently regulating or even prohibiting food cart vendors; thus, the right to freely operate a food cart is not “deeply rooted” in our Nation’s history and traditions. Nor is the right to freely operate a food cart implicit in our concept of ordered liberty. Therefore, the court finds that plaintiff fails to allege a property right that is protected by the Constitution and does not state a substantive due process cause of action as a matter of law.

The court went further to state that even if he had such an interest, he was afforded appropriate process, including notice, full disclosure, of all city communications regarding the permitting process, and the opportunity to be heard.

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Resolution to create pocket park is not an ordinance

Gary Taylor

by Gary Taylor

Rickie and Darlene Suiter v. City Council of the City of Princeton
(Iowa Court of Appeals, February 5, 2014)

The Suiters own property in Princeton bounded on the east by the Mississippi River and on the west by South River Drive.  The property in dispute in this case abuts the Suiter property on the north.  It is zoned R1-Residential.  It was the subject of a past court case between the Suiters and the city which concluded with the title to the property being awarded to the city.

In September 2012 the city adopted a resolution declaring the property “shall from this day forward be used as a public park and/or green space in accordance with the permitted use under the R-1 zoning district.”  The Suiters sued the city, raising a number of claims.  The primary claim concerned the legal effect of the resolution.  The Suiters claimed that the resolution was “null and void” because the city “failed to comply with Iowa Code 414.4 [and the Princeton City Code] by failing to first publish notice of a public hearing and to hold a public hearing on the proposed reclassification of the permitted use before adopting” the resolution.

The Court of Appeals disagreed with the Suiters.  The notice provisions of Iowa Code 414.4 only apply to ordinances.  The city’s action was correctly characterized as a resolution since there was no change to the zoning of the property and also no change in the city’s comprehensive plan.  Princeton’s R-1 district allows for public or private parks as permitted uses, and so the resolution did not result in a de facto change in zoning either.

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Fire marshall permitted to issue citation under International Property Maintenance Code

Gary Taylor 2 Comments

by Gary Taylor

City of Council Bluffs v. Limmer
(Iowa Court of Appeals, February 5, 2014)

Limmer owns several rental properties in Council Bluffs.  in December 2010 he certified to the city that he had inspected one of his properties located on Avenue C and that it was in compliance with all of the city’s rental standards, including smoke detectors.  However, on February 2, 2011 a fire occurred at the Avenue C property and one occupant was injured. The city fire inspector inspected the property that day and found no smoke detectors present.  This was reported back to the city, and on February 15 other city officials also inspected the property and found several other code violations in addition to the absence of smoke detectors.  The next day a notice of violation was issued by the city housing inspector to Limmer setting forth a number of violations of the “International Property Maintenance Code (IPMC) and/or city code.”  Then on February 23 the fire marshall’s office issued four citations including the one at issue in this case, which cited Limmer for “unlawfully and willfully” violating city code and the IPMC by not providing smoke detectors.  The housing inspector did not learn of the fire marshall’s citations until later.  In May Lemmer notified the housing inspector that he had corrected the deficiencies, and when she re-inspected the properties she agreed.

At trial over the fire marshall’s citations, the housing inspector testified that the fire marshall’s citations had been issued without her knowledge, and that it was not unusual for her to receive complaints about Lemmer’s properties and to find upon inspection that they did not meet code, but that she personally had never dealt with Limmer without giving him a minimum of 30 days to bring his property into compliance.

The fire marshall’s office representative testified he believed Iowa Code 364.1 gave him the authority to issue the citations “to preserve the rights, privileges, and property of the city or its residents and to preserve and improve the peace, safety, health, welfare, comfort and convenience of its residents.”  Lemmer countered that the “more specific” language of the IPMC procedures “trump the more general grant of authority conferred by the Iowa Code.”

The Court of Appeals disagreed with Lemmer.  After reviewing relevant provisions of Iowa Code and the IPMC, the court concluded that the fire marshall representative had the authority, as a “legal officer” under the IPMC, to issue a citation with a civil penalty for a violation of the city code, even though the housing inspector had already issued a notice of violation for the same offense.  The fire marshall’s office was not required to provide a notice of violation prior to issue the citation because under the IPMC it is only the code official who is first required to first issue a notice.  The Iowa Code, the City Code, and the IPMC all include language permitting a city or designated city officer to seek an additional form of relief to correct a violation or punish a violator.  “There simply is no conflict between the internal sections of the IPMC, the IPMC and the City Code, or the IPMC and the Iowa Code.”

Iowa Court of Appeals, Rental/property maintenance codes , , ,
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Conditional rezoning agreement limits processing and retail sales to deer season

by Kaitlin Heinen and Gary Taylor

Patricia D. and Michael P. Fowler v. Muscatine County Board of Supervisors
(Iowa Court of Appeals, October 23, 2013)

Patricia and Michael Fowler asked the Muscatine County Zoning Commission to rezone their property from A-1 agricultural to C-1 commercial, to permit the operation of a seasonal deer processing facility and retail counter. The Fowlers executed an agreement that restricted the property’s use to “[o]nly wild game processing….[r]etail products in the wild game category…and supporting wild game products….” This agreement included a description of “Steve’s Meat Shop” and its products. Once executed, the commission recommended that the Muscatine County Board of Supervisors approve the zoning request, which the board did, passing an ordinance that rezoned the Fowlers’ property accordingly.

The Fowlers petitioned to have their property rezoned again to “add service of ready-to-eat food,” such as hot sandwiches. The commission recommended that the board deny this request; the board did so. The Fowlers sought to annul and vacate the board’s denial of their application in district court. The board resisted, and additionally argued that retail services could only be offered seasonally. The district court allowed the retail services to be conducted year-round, but denied the Fowlers’ request to include “ready-to-eat foods” or a “deli shop.” Both the Fowlers and the board appealed to the Iowa Court of Appeals.

The issues before the court in this case include: “(1) whether an ordinance that rezoned certain agricultural property to a commercial classification authorized the operation of a year-round retail establishment and (2) whether the retail establishment could sell ready-to-eat foods.”

The court initially observed that if an “ordinance is plain and its meaning is clear,” the court cannot search for meaning beyond those express terms. However, if the “ordinance is ambiguous, it is appropriate to apply the general rules of construction for statutes.” The board argued the “conditional rezoning agreement contains ‘no reference to year-round retail service,’” so the district court erred in the absence of such words to interpret. The Fowlers countered that the conditional rezoning agreement contains no time restrictions for the retail services, so the district court correctly concluded that they could operate year-round.

Both parties rely on the preamble of the ordinance—“the Property is…to be used as a seasonal deer processing and retail service.” The board argued “the term ‘seasonal’ ‘unambiguously and undeniably places limits on the privileges conferred by the spot zoning.’” The Fowlers countered the term “requires deer processing to occur on a seasonal basis but does not limit ‘retail service.’” The court reasoned that these competing arguments in regards to the term “seasonal” meant that there was ambiguity in the ordinance.

When confronted with an ambiguity, we may consider, among other factors: (1) the object sought to be attained (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) the common law or former statutory provisions, (5) the consequences of a particular construction, (6) the administrative construction of the statute, and (7) the preamble or statement of policy.

The court examined the circumstances surrounding the ordinance’s passage. “At the first meeting with the zoning commission, Michael Fowler explained his reasoning for his rezoning request as follows: ‘[W]hat we’d like to do is to have a seasonal deer processing. We’d like to have a small retail counter that would just be open between October and January.’” Further, when asked whether the retail services would only be open during that period, he replied, “Yeah, deer season.” This resolves the ambiguity of the term “seasonal,” and thus the court concluded the Fowlers’ retail services were to operate seasonally. The court reversed the district court’s judgment in this part.

As for the second issue, the Fowlers argued the court erred in concluding they could not sell ready-to-eat foods at their retail counter. They contended that “retail service” encompasses the sale of ready-to-eat foods. However, the conditional rezoning agreement authorizes them to “prepare products for resale.” The court agreed with the district court that the conditional rezoning agreement did not authorize the sale of deli-style sandwiches that could not “be considered wild game specialty items.” In his statements to the zoning commission, “Michael Fowler stated that the retail store would be limited to wild game, ‘nothing domestic, like beef or pork.’” In addition, “Patricia Fowler explained that deer meat would be bought from a farmer and then sold to the customers.” These statements conclude that the retail service does not encompass ready-to-eat foods. The court affirmed the district court’s judgment in this part.

Contracts/Conditional Zoning, Iowa Court of Appeals, Rezoning, Zoning ordinance interpretation , ,
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