Tag: Iowa courts

Courts Defer to Staff and Board of Adjustment Interpretation of Code

ejchr

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.

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Iowa C.A. finds signatures on letter did not constitute deliberation among elected officials

Gary Taylor

by Gary Taylor

Fleener v. City of Oskaloosa, et. al.
(Iowa Court of Appeals, November 25, 2009)

Signatures on letter did not constitute deliberation among elected officials.

The Mahaska County Board of Supervisors held a public meeting on November 19, 2007, regarding the possible location of a new Pella Municipal airport in Mahaska County. The Board rejected the proposed site if it were to be used solely as a Pella airport, rather than a regional airport, and sent a letter to Pella city officials to that effect. On January 2, 2008, the CEO of Musco Sports Lighting in Oskaloosa called the Board of Supervisors office and asked for a meeting.  Not knowing the purpose of the meeting, one supervisor went alone to the Musco offices where he met with other Musco officials and the director of the Oskaloosa Chamber of Commerce.   The supervisor was informed that the Pella Airport Site Selection Task Force was scheduled to meet on January 4, 2008 and Musco was interested in keeping dialog open as to the concept of a regional airport.  An employee of Musco was present at this meeting, and was placed in charge of drafting a letter to the City of Pella mayor and city manager, anticipating gaining support from both the Oskaloosa City Council and Mahaska Board of Supervisors for Musco’s request.  With the assistance of the mayor of Oskaloosa a letter was drafted.  This letter was to signal their openness to further communicate with Pella about airport site selection. The January 3, 2008 letter read:

Airport site selection is important to the economic well-being and sustainability of the entire area.  Accordingly, for the long-term mutual benefit of our communities we would request the opportunity to participate with the Pella City Council in evaluating site selection for a new airport to serve employers and employees of the Pella and Oskaloosa communities.  Thank you.

Sincerely . . .

The Musco employee contacted various members of both the Oskaloosa City Council and Mahaska County Board of Supervisors, in hopes of obtaining their signatures.  The mayor and four of the seven Oskaloosa City Council members signed the letter, as did two of the three Mahaska County Supervisors.

On February 4, 2008, J.D. Fleener, a Mahaska County resident, filed this action against the above defendants, alleging a violation of the Iowa Open Meetings law.  The Mahaska Board of Supervisors held a public meeting on February 19, 2008, in order to authorize the sending of an additional letter to the City of Pella, clarifying their interest regarding the airport site selection.  Similarly, the Oskaloosa City Council also held a public meeting and voted to send a follow-up letter, expressing the majority of the Council’s interest in continuing dialog with Pella on the airport site selection to benefit both communities.  The Mahaska supervisors, joined by the Oskaloosa defendants, filed a motion for summary judgment of the open meetings challenge.  The district court granted the motion on January 14, 2009.

The issue in the case was whether the events culminating in the signatures of the elected officials from Mahaska County and Oskaloosa constituted a “meeting” under Iowa’s open meetings law (Iowa Code 21.3).  In her deposition, the Musco employee discussed contacting the signatories and inviting them individually to the Musco office, or volunteering to bring the letter to their home or place of business in order to sign the letter.  The court concluded that there was no evidence of an in-person gathering of any of the elected officials to discuss the letter among themselves.

The court next looked at whether an electronic gathering occurred.  The evidence indicated that the Musco employee contacted the elected officials individually, either by phone or e-mail, prior to and during the drafting of the letter.  At least one of the elected officials reviewed a draft of the letter prior to signing the final copy.  Fleener argued that these separate phone and e-mail contacts amounted to serial communications resulting in deliberation, such that a meeting occurred.  The court disagreed, however, finding neither evidence that the elected officials communicated with each other, nor intent to circumvent the open meetings law requirements.  According to the court, the most that could be said was that as the various members signed the letter, the later ones to sign knew who had signed before them.  Their signatures were based on conversations with individuals from Musco, not each other.   The court affirmed the ruling in favor of the city and county officials.

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Adjoining landowners in annexation case need not exhaust administrative remedies before going to court

Gary Taylor

by Gary Taylor

William and Sharon Oglesby, et. al. v. City of Coralville
(Iowa Court of Appeals, November 25, 2009)

District court had jurisdiction to review claim of inadequate notice of city action on annexation.

Scanlon Properties submitted an annexation request to the City of Coralville for property it owns along North Liberty Road, as well as a half mile of the right-of-way of North Liberty Road that connects the city to the Scanlon property.  The property is in the two-mile extraterritorial area of North Liberty.  On the same day the city council voted to approve the annexation, several owners of property adjacent to the half mile stretch of North Liberty Road (the plaintiffs in this case) filed a petition in district court contending the city had failed to provide them the notice of annexation required under Iowa Code 368.7(1)(b) and (d).  At a district court hearing held two weeks later the city asserted the plaintiffs did not have standing to bring their claims and had failed to exhaust administrative remedies.  The district court found that the city was required to give plaintiffs notice before taking action to annex the land, and issued a temporary injunction to prevent the city from taking further action on the annexation “until such time as [the city] complies with all statutory notice requirements.” 

After two years of procedural wrangling the plaintiffs moved for summary judgment to obtain a final resolution of the case, stating that the city council action approving the annexation was void since the statutorily-required notice was not provided.  The city cross-moved for summary judgment asserting the plaintiffs were not entitled to notice, did not have standing, and had not yet exhausted all available administrative remedies.   The district court agreed with the plaintiffs, and further determined that since the city council action was void, there was no decision to be reviewed by the City Development Board (CDB) and thus there were no administrative remedies to exhaust.

The Court of Appeals affirmed the ruling of the district court, granting summary judgment in favor of the plaintiffs which voided the annexation.  After noting that the annexation required CDB review under Iowa Code 368.7(3) because of its proximity to North Liberty, the court reviewed the purposes of CDB review.  It noted that the CDB is not “an all-purpose enforced of chapter 368’s requirements.”  The CDB’s review of annexations within the extraterritorial area of another city does not include review to ensure compliance with the landowner notification requirements.  Thus, in the ordinary course of events the CDB will not even have information about the extent to which landowners were notified before the city acted.  The court concluded that resort to the CDB to rectify a failure by the city to give notice is “permissive only, and not exclusive of the judicial remedy.”  This being the case, there is no requirement that the administrative remedy of CDB review be exhausted before resort to the judicial system for resolution.  It did not help the city’s case that “in a classic Catch-22” the city argued simultaneously (1) before the district court that plaintiffs had not exhausted their administrative remedies, and (2) before the CDB that the plaintiffs did not have standing to appear in the CDB proceedings.   “An administrative remedy would hardly be adequate for the plaintiffs if it expressly disallowed them from appealing the administrative decision.”

Finally the court dismissed the city’s claim that the plaintiffs were not entitled to notice because they do not “own” North Liberty Road (although the city did concede the plaintiffs held legal title to the land over which the road passes, they argued that legal title was immaterial because plaintiffs did not “control” the land).  Regardless of the resolution of this technicality, the court concluded that plaintiffs would be entitled to notice as owners of land adjacent to the road if they, in fact did not “own” the road.

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Fire-damaged home “abandoned” despite owner’s intentions to contrary

Gary Taylor 1 Comment

by Gary Taylor

Council Bluffs v. Harder
(Iowa Court of Appeals, November 12, 2009)

Fire-damaged house deemed “abandoned” under Iowa Code, despite owner’s continued payment of mortgage, taxes and insurance.

Anita Harder owned a house in Council Bluffs that sustained serious fire damage in September 2004.  It has not been inhabited since.  She moved out and her insurer initially paid some living expenses, but has not paid anything else. She has continued to pay her mortgage, property taxes and insurance. As time passed, neighbors complained to the City about the deteriorating condition of the house. The City determined the home was uninhabitable, and the fire department shut off the utilities.  Approximately two years after the fire the City filed a petition requesting a transfer of title to the property to the City, alleging the property had been abandoned and was a public nuisance.  All the while Harder was continuing to negotiate with the insurance company for payment. The case was eventually tried in April 2008, with the district court finding that the house was an abandoned property within the meaning of section 657A.10A, and awarded title to the City.

The Court of Appeals characterized the question as “whether an unoccupied house may be deemed ‘abandoned’ under Iowa Code section 657A.10A where it was rendered uninhabitable by fire three and a half years ago, has been boarded up since then, has been broken into repeatedly, and is the subject of complaints from neighbors.”

The Court of Appeals focused on the definition of “abandoned” found in Iowa Code 657A.1(1), and the eleven factors enumerated by the legislature in Iowa Code 657A.10A(3)  for the court to consider when determining whether a property has been abandoned.  Harder admitted that the property met several of the listed factors (it was unoccupied for more than six months, it did not meet code, it was not habitable, it had no utility service), but contended her failure to correct the situation was due to an ongoing dispute with her insurance company, and did not reflect an intent to abandon the property.  She cited her payment of the mortgage, taxes and insurance as evidence of her intent.  While the Court of Appeals recognized that these factors weighed against abandonment, they were not sufficient to overcome the other factors.  The court pointed to the underlying purpose of the statute, which is to prevent the “serious adverse effects of unsafe, abandoned homes on neighborhoods and communities….It would undermine the purposes of section 657A.10A to allow a homeowner’s private dispute with her insurer, even if meritorious, to serve as a defense to an abandonment proceeding.  If the insurer never paid, could the house remain boarded up and deteriorating forever?”  In a footnote the court analogized the situation to a bank foreclosure where the bank pays its property tax obligations but allows the home to deteriorate.  “This is not an abstract hypothetical” the court reasoned, “given the current troubles in our economy.”  The Court of Appeals affirmed the district court’s ruling that Harder abandoned the house. 

Justice Vaitheswaran dissented, concluding that the important factors weighed against a finding of abandonment:  (1) Harder continued to pay real estate taxes, mortgage payments, and insurance; (2) Harder continued to maintain the property; (3) there was no evidence of the presence of vermin, accumulated debris, or uncut vegetation; (4) the deteriorating condition of the home was a factor beyond Harder’s control because she did not have the benefit of insurance proceeds; and (5) Harder had no intent to abandon the home.

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Iowa C.A. assumes validity of pre-annexation agreement

Gary Taylor

by Allison Arends and Gary Taylor

NT Home Builders v. City of Buffalo
(Iowa Court of Appeals, April 8, 2009)

Provisions of pre-annexation agreement did not bind city council to rezone property to particular district classification. 

NT Home Builders and the City of Buffalo entered into a pre-annexation agreement when NT purchased real estate in the City with the intent of developing approximately 80 family units. The pre-annexation agreement, which was approved by the Buffalo City Council, required NT to, “request that the property be zoned for single family residences” and that NT “shall be subject to and comply with all other ordinances of the Buffalo Municipal Code.”  Buffalo’s zoning code states that newly annexed land shall come into the city zoned  “A- Country Home.”  This designation would allow NT to develop only about 60 units.    NT requested that Buffalo re-zone the property to B-1 Residential which would allow development of 82 units. The city denied NT’s request. NT filed suit against the City of Buffalo arguing that the pre-annexation agreement required Buffalo to zone the property B-1. The district court affirmed the City of Buffalo’s refusal to re-zone. NT appealed. 

As a preliminary matter the court addressed the question of the validity of pre-annexation agreements, stating:

“In recent years, there has been considerable controversy over whether a municipality may enter into an agreement with a private party binding the municipality to specific zoning in the future. We will assume, without deciding, that Buffalo’s city council could enter into an agreement obligating it to take certain zoning actions.  After all, the city council is Buffalo’s final zoning authority.”

NT first contended that the reference in the pre-annexation agreement to “single family residence” zoning required the city to rezone to B-1 Residential.  The Court of Appeals disagreed, determining that the reference did not require rezoning to B-1 because single family residential development could be accomplished either with A- Country Home or B-1 Residential.

The court also found that both parties were acting in “good faith” and both were oblivious to the inability of NT to construct 80 homes on A- Country Home land until after the pre-annexation agreement was signed. 

NT also argued that it had the legal right to whatever zoning was needed to erect 80 homes on the property. In light of the previous two findings, the court found that this would put an unfair burden on the municipality, because it would require them to assess the developer’s plans in detail and see to it that the developer’s interests were adequately protected under the contract. The court recognizes that this burden should lie with the developer, and that it is the developer who should be obligated to contract expressly for the zoning it needs. Therefore the court did not grant NT damages, “the district court’s finding of good faith on the part of both parties would appear to foreclose liability on this basis.”

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Consistent with a plan, but not enough – not now

Gary Taylor

by Gary Taylor

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

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

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

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

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

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

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

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

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

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

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Council is proper party in claim of illegality of zoning amendment

Gary Taylor

by Gary Taylor

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

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

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

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

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

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

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

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Iowa C.A. says one-bedroom B and B “smallest of small” home occupations

Gary Taylor

by Allison Arends

Meduna v. City of Crescent
(Iowa Court of Appeals, December 17, 2008)

One-bedroom bed and breakfast fits within definition of “small home occupations” in Crescent, Iowa zoning ordinance.

In 2004 the Medunas purchased a home in the Loess Hills Scenic By-way in the city of Crescent, and established a single room bed and breakfast in 2005. The Medunas purchased the home with the intention of setting up the bed and breakfast.  Under the City’s R-1 Residential Single Family Dwelling District, “small home occupations” are a permitted use.  The ordinance does not define “small home occupations.”  The Medunas were under the impression that their one room bed and breakfast would fit within the definition of small home occupations under the R-1 zoning district. 

Thirty-four of the Meduna’s neighbors signed a petition against the bed and breakfast arguing that it would cause increased traffic, and reduce privacy and security of the neighborhood.  The city council found the bed and breakfast in the R-1 zone to be a municipal infraction.  The Medunas filed for declaratory judgement, asking the district court to enter a decree finding the ordinance does not prohibit them from operating their bed and breakfast or, to find the ordinance unconstitutional. 

The district court found that the small bed and breakfast did not meet the requirements of the “small home occupation” exception, based largely on the fact that the R-3 Residential District in the city’s zoning ordinance specifically allows ‘Rooming Houses’ and ‘Tourist Houses,’ which would allow the Medunas’ bed and breakfast.  The Medunas were ordered to cease and desist operation of their bed and breakfast. 

The Court of Appeals reversed.  Because the zoning ordinance fails to specify the meaning of “small home occupations,” the Court of Appeals sought to apply the “common and ordinary” meaning of the term.  The dictionary defines “small” as “limited in scope or degree”, “home” as “a dwelling place,” and “occupation” as “an activity or pursuit in which a person is engaged; especially a person’s usual or principal work or business.”  Under these definitions the Court of Appeals found that the Medunas’ use of one bedroom and its attached bathroom of their house for a bed and breakfast is the “smallest of small” home occupations, and should be permitted under the R-1 zoning ordinance.

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Iowa C.A. adjudicates easement rights of Mississippi River frontage owners

Gary Taylor

by Gary Taylor

Clancy v. Jessen
(Iowa Court of Appeals, October 7, 2009)

Landowner may grant easement rights beyond prior deed restrictions so long as they do not impair existing rights of other easement holders.

In 1964 the Kelloggs acquired 2.07 acres of property north of the city of McGregor that included 198 feet of riverfront along the Mississippi River.  The property was bisected by railroad tracks.  Three years later they subdivided the property into 17 lots.  Lot 17 had the entire 198 feet of riverfront, but the Kelloggs platted drives so that the other 16 lots were given vehicular access to the riverfront via Lot 17.  The 10 lots west of the railroad tracks were sold over the years – purchasers coming to be known as West Enders – with the following language granting the easement:

“Grantors convey easement to use platted drives, and to travel access and use over and across Lot 17 of Kellogg’s Subdivision, to Mississippi River, and use of riverfront adjacent thereto.”

The 6 lots east of the tracks were sold – purchasers coming to be known as East Enders – with the same language, and also included the following notation:

“Grantors further agree that no buildings of any type shall be allowed on said Lot 17.  Permission granted to grantees to install 3 docks for 3 boats on said Lot 17.” 

Eventually 3 docks were built with room for multiple boats.  Historically, both East Enders and West Enders docked boats at those docks. 

The Kelloggs sold Lot 17 in 1986.  In 2007 several lot owners proposed several new dock plans to the Army Corps of Engineers, who must review and approve such plans on the Mississippi River for navigability.  The Corps approved a plan that provided for one large community dock in the middle of Lot 17 that would accomodate the boats of all West Enders, and two smaller new docks.  The plan left two of the existing docks in place. 

Two East Enders brought suit to stop development of the new dock plan, arguing that only the  deeds of the East Enders granted permission for boat docks, and that the West Enders’ deeds granted no such rights.  The Court of Appeals disagreed.  The East Enders’ claims must fail, reasoned the court, if the docking priviledges granted to the West Enders do not impair the East Enders’ easements rights.  The owner of Lot 17 may elect to confer on the West Enders more benefits than they are entitled to, but that is not concern of the East Enders unless their rights are adversely affected.  The granting of rights to East Enders to install “3 docks for three boats” did not give them rights to have their docks in a particular location on Lot 17.

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Pursuing permits establishes use under CUP

Gary Taylor

by Allison Arends

Buser, et. al., v. Johnson County Board of Adjustment
(Iowa Court of Appeals, December 31, 2008)

Pursuing necessary permits and contracts sufficient to establish use within time period required by ordinance.

Stone Hills, L.L.C. was granted a conditional use permit to establish a facility for the production of compost manufactured soil.  When the Johnson County Zoning Administrator later issued Stone Hills a permit to begin production Raymond Buser and other property owners objected on the grounds that Stone Hills did not establish the permitted use within a year after the conditional use permit was granted as required by the Johnson County zoning ordinance.[1]  In the time period between granting the conditional use permit and the commencement of production Johnson County had amended the zoning ordinance to add an “Agricultural, Solid Waste Disposal and Environmental Resource Reclamation District” to “provide areas within Johnson County where it is appropriate to site and operate sanitary landfills and composting facilities.”   The property owners argued that because Stone Hills had not established its production within the required timeframe, the use was a violation of the zoning code because it was now taking place on property that was not zoned for composting facilities.  The Johnson County Board of Adjustment denied the property owners’ appeal of the zoning administrators action, and the district court affirmed the Board of Adjustment’s decision.

On appeal, the Court of Appeals affirmed the district court, quoting from the lower court’s opinion that found “steps were being taken [by Stone Hills] to comply with the conditions of the conditional use permit….[It] had secured necessary permits; was in the process of securing other necessary permits; was in the process of finalizing agreements necessary to engage in the composting process; and had been delayed by outside forces in its attempts to get the composting facility up and running.”  This, the court determined, was sufficient to establish of the use within one year as required by the ordinance. 

[1] Article 8:1.20(II)(5)(c) of the Johnson County code reads:

1.  A use for which a Conditional Use Permit is granted must be established within one (1) year after such permit is issued.  If such use is not so established, the Conditional Use Permit shall be deemed to have expired and shall be null and void.

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