Iowa cities may shift tort liability for unsafe sidewalks to abutting property owners

by Gary Taylor

Madden v. City of Iowa City and State of Iowa
(Iowa Supreme Court, June 13, 2014)

Beth Madden was riding her bike on a sidewalk abutting the University of Iowa when she lost control, crashed, and sustained injuries.  She sued the city claiming that the city owned or had control over the sidewalk, a defect in the sidewalk caused the accident, and the city was negligent in failing to prevent or remedy the defect or failed to exercise reasonable care in maintaining the sidewalk.  The city brought the university (the state of Iowa) in as a third party, citing a city ordinance that requires abutting property owners to maintain sidewalks in safe condition.  The university disputed its liability, which gave rise to this case.

In Iowa, the courts have long followed the common law rule that an abutting property owner is not liable in tort for injuries arising from defects in adjacent sidewalks, and that statutes requiring abutting landowners to engage in maintenance such as snow and ice removal do not give rise to such liability.  Iowa Code 364.12(2) provides:

A city shall keep all …sidewalks…in repair, and free from nuisance, with the following exceptions
b.  The abutting property owner is responsible for the removal of  the natural accumulations of snow and ice from the sidewalks within a reasonable amount of time and may be liable for damages caused by the failure of the abutting property owner to use reasonable care in the removal of the snow or ice….
c.  The abutting property owner may be required by ordinance to maintain all property outside the lot and property lines and inside the curb lines upon the public streets….
The Iowa Supreme Court found that Iowa Code 364.12(2)(c) does not give rise to a private cause of action against an abutting property owner for injuries resulting from a sidewalk defect.  The court pointed out that the statute expressly authorizes a damages action in subsection (b) for failure to remove snow and ice, but that such language is conspicuously absent in subsection (c).
Preemption. This, however, did not end the legal dispute.  The city’s ordinance provides that “the abutting property owner shall maintain the sidewalk in a safe condition, in a state of good repair, and free from defects,” and further that the abutting property owner “may be liable for damages caused by failure to maintain the sidewalk.”  The university asserted that the city did not have the authority under state law to impose liability on an abutting property owner, or enact an ordinance that would result in a waiver of the state’s sovereign immunity in tort claims such as this one.  The city argued that under home rule it has the authority to impose liability on abutting property owners, regardless of the state statute.
The Supreme Court viewed the issue as one of preemption; specifically, whether state law “impliedly preempts” local regulation on the subject.  In order to give rise to implied preemption, the local ordinance must be “irreconcilable” with state law.  Courts will work to “interpret the state law in such a manner as to render it harmonious with the ordinance.”  The court noted that section (c) is silent on the issue of liability, but that “legislative silence [should not be] interpreted as a prohibition of local action in light of our obligation to harmonize and reconcile a statute with an ordinance whenever possible….We therefore conclude that when an ordinance or statute validly imposes a maintenance obligation and also imposes liability on the abutting landowner, the city is entitled to indemnification from the abutting landowner for any damages arising out of its failure to maintain the sidewalk.”  An ordinance that creates such as scheme is not preempted by Iowa Code 364.12.
Illegal tax. For its second line of defense, the university asserted that the attempt to transfer liability to the state amounted to levying a tax not authorized by statute.  The court disagreed.  A “tax” is a general revenue measure without benefits conferred.  In this case, no funds go into the city’s coffers for general purposes, and taxpayers are not being charged for services that have no benefit to them.  the ordinance is a police powers regulation that cannot be “shoehorned into our taxation doctrine.”
Sovereign immunity.  Finally, the university argued that state immunity from liability under the Iowa Tort Claims Act (ITCA) was not waived in this case, either by operation of statute or under common law.  The court also rejected this argument, noting that the ITCA has been interpreted as establishing a “general waiver of sovereign immunity” subject to the exceptions delineated in the act, none of which apply in this case.  The purpose of the waiver of immunity is to allow the state to be sued “under circumstances where the state, if a private person, would be liable to the claimant for such damage, loss, injury, or death.”
For these reasons, the Iowa Supreme Court ruled that the university should remain a party to the lawsuit.
Justices Mansfield and Waterman dissented.  They read Iowa City’s ordinance as an effort to alter the statutory division of responsibility between city and property owner. “Simply stated, the city wants the property owner to do more to maintain city-owned sidewalks, so that the city may do less.”  They believe that the city ordinance clearly conflicts with Iowa Code 364.12, which they read as containing “an express legislative determination that the city should be responsible for sidewalk maintenance subject only to a particularized right to shift costs of repair to the adjoining property owner in certain circumstances.”

Clean Air Act, state emissions regulations do not preempt private nuisance or trespass claims

by Gary Taylor

Laurie Freeman, et al v. Grain Processing Corporation
(Iowa Supreme Court, June 13, 2014)

Grain Processing Corporation (GPC) conducts corn wet milling operations at its facility in Muscatine.  Laurie Freeman and seven other named plaintiffs – representing a class identified as “all Muscatine residents who have resided…within 1.5 miles of the perimeter of [GPC’s] facility” – allege that GPC’s operations create hazardous by-products and harmful chemicals which are released directly into the atmosphere.  The pollutants include sulfur dioxide, hydrochloric acid, particulate matter, and volatile organic compounds including acetaldehyde.  They assert that particulate matter is visible on nearby properties and that the emissions cause persistent irritations and discomforts and put them at risk for serious health effects.  They brought claims for nuisance, negligence and trespass against GPC.  GPC countered by filing for summary judgment, claiming that (1) the federal Clean Air Act (CAA) preempts the plaintiffs’ state law claims, (2) Iowa Code Chapter 455B – which regulates emissions – preempts the plaintiffs’ claims, and (3) a lawsuit impacting facility emissions lacks judicially discoverable standards for resolving the issues.  The district court sided with GPC and plaintiffs appealed.  The portions of the Iowa Supreme Court decision addressing (1) and (2) will be reviewed here.

Clean Air Act preemption. In a 63-page opinion that included a history lesson on the origins of present day environmental law, the Iowa Supreme Court acknowledged that “the Environmental Protection Agency has created a vast regulatory structure to control the emission of air pollutants, including technological standards, health standards, risk levels, and enforcement provisions, completely transforming what was once the province of state law.” The court also recognized, however, that there are differences between common law remedies such as nuisance and trespass, and regulatory regimes such as the CAA and chapter 455B.  While regulatory regimes focus on the prevention of pollution through emissions standards designed to protect the general public, “the common law focuses on special harms to property owners caused by pollution at a specific location.”  The Iowa Supreme Court noted that the United States Supreme Court is reluctant to find that a federal law preempts state law in areas where states have traditionally exercised their police power.  Congress has the power to preempt local law and can expressly do so, but did not in the CAA.  To suggest that Congress indirectly removed state law claims such as nuisance and trespass “seems…rather unlikely,” and the Iowa Supreme Court declined to interpret the CAA in that way.  “The purpose of state nuisance and common law actions is to protect the use and enjoyment of specific property, not to achieve a general regulatory purpose….We decline to conclude that the increased complexity of the CAA has categorically elbowed out a role for the state nuisance and common law claims presented here.”

Iowa Code Chapter 455B. The court began by noting that “the legislature is presumed to know the existing state of the law when a new statute is enacted.  In the absence of any express repeal, the new provision is presumed to accord with the legislative policy embodied in prior statutes.”  While there are no definitive Iowa cases addressing the question of whether nuisance claims may go forward in light of Chapter 455B, the court did find instructive cases that have found that a lawful business, properly conducted, may still constitute a nuisance, even if in compliance with state regulations.  “We do not see enforcement of nuisance and other common law torts as inconsistent with the regulatory framework of chapter 455B.”  Nuisance claims are based on specific harms to the use and enjoyment of real property, while air pollution regulations are enacted to protect the public interest.

The Iowa Supreme Court reversed the district court’s summary judgment, allowing the case to proceed to trial.

“Unused right-of-way” includes property previously used for roadway purposes

by Gary Taylor

Tunis E. Den Hartog, et al. v. City of Waterloo
(Iowa Supreme Court, May 30, 2014)

The state of Iowa transferred control of a state highway – now known as San Marnan Drive – and its right-of-way to the city of Waterloo in 1983. The city has maintained it by grading and mowing since that time. The city recently reached agreement to transfer the property to Sunnyside South Addition, LLC, for one dollar. Sunnyside proposes to relocate San Marnan Drive in order to place residential development where the road is currently located. Some Waterloo taxpayers filed suit, claiming that the transaction failed to comply with the notice and sale provisions of Chapter 306 of the Iowa Code, which governs the establishment, alteration, and vacation of roads. The city responded that the procedures of Chapter 306 cited by the taxpayers (specifically, section 306.23) only apply to property acquired for roadway purposes that was never used as a roadway.

Iowa Code 306.23 provides in part:

1. The agency in control of a tract, parcel, or piece of land, or part thereof, which is unused right-of-way shall send by certified mail to the last known address of the present owner of adjacent land from which the tract, parcel, piece of land, or part thereof, was originally purchased or condemned for highway purposes, and to the person who owned the land at the time it was purchased or condemned for highway purposes, notice of the agency’s intent to sell the land, the name and address of any other person to whom a notice was sent, and the fair market value of the real property based upon an appraisal by an independent appraiser.
2.  The notice shall give an opportunity to the present owner of adjacent property and to the person who owned the land at the time it was purchased or condemned for highway purposes to be heard and make offers within sixty days of the date the notice is mailed for the tract, parcel, or piece of land to be sold.  An offer which equals or exceeds in amount any other offer received and which equals or exceeds the fair market value of the property shall be given preference by the agency in control of the land. If no offers are received within sixty days or if no offer equals or exceeds the fair market value of the land, the agency shall transfer the land for a public purpose or proceed with the sale of the property.

The parties dispute the meaning of “unused right-of-way.” The city argued that it refers only to land never in use for roadway or related purposes – the implication being that section 306.23 does not apply in this case. The taxpayers argue that the phrase should be read to include any land which the city has determined will no longer be needed or used for roadway purposes. This could include land currently in use for roadway purposes, so long as the city has determined that the land will not be used as such in the future. Under this reading section 306.23 applies and the property should have first been offered to adjacent landowners for purchase at or above fair market value.

In siding with the taxpayers, the Iowa Supreme Court cited several “linguistic and structural cues…the statutory purpose, and the legislative history [of chapter 306].” Noting that the owner of land abutting a highway may suffer special damage because of its vacation, the hearing procedures in chapter 306 protect their unique property interests. The Court looked to several provisions in the chapter that suggest a broad reading of the term “unused”; i.e., to apply to land that will not be used for roadway purposes going forward, regardless of whether it may have been used for such purposes previously.

The Supreme Court remanded for entry of an order prohibiting the city from the sale or transfer of the property to Sunnyside without first following the requirements of section 306.23.

70-day delay in satisfying records request deemed too long under Iowa Open Records Law

by Kristi Harshbarger
Legal Council, Iowa State Association of Counties

Horsfield Materials, Inc. v. City of Dyersville
(Iowa Supreme Court, July 5, 2013)

This article originally appeared in the August 2013 issue of The Iowa County.  Kristi provides good advice on responding to records requests at the end.

What is a timely response to a records request?  I don’t know if we have a definitive answer to that question, but what we do have is a case from the Iowa Supreme Court giving us an example of what the Court deemed to not be a sufficiently timely response under Chapter 22 of the Iowa Code (the open records laws).  The opinion handed down by the Court on July 5, 2013 in Horsfield Materials, Inc. v. City of Dyersville addressed a dispute between the city and a materials supplier related to the city’s public bidding of a project.  There were several claims made by the materials supplier related to the city’s process for public bidding.  An additional claim was made related to the timeliness of the response from the city on several open records requests made by the material supplier related to gathering information on the city’s process in this particular public bid.  The opinion sets forth the detailed timeline in the situation, which involved several rounds of communication between the city and the materials supplier related to the open records requests.  The original request was made on December 21st.  The parties communicated on various issues and clarifications, and the city provided a small portion of the documents requested on December 31st.  On January 26th, the city attorney claimed attorney-client privilege on five emails related to the request.  On March 25th, the city offered a remedy for providing a video that was a part of the open records request.  On April 6th, the city provided 617 pages of documents in response to the request.  On April 8th, the city attorney claimed attorney-client privilege on eight additional emails.  At a later date, the city agreed to release these emails.  Throughout this time, the city stated the reasons for delay were the large number of documents that had to be reviewed in order to comply with the request and the difficulty in getting the 48 hours of video reviewed that was requested.

The district court concluded that the city’s response was a good faith effort to comply with the open records laws and thus no violation occurred.  The Iowa Supreme Court reversed this decision and held that a violation had occurred.  The Court considered Iowa Code Section 22.8(4)(d) which provides that it is a good-faith reasonable delay in responding to a records request if the delay is no longer than 20 calendar days for the purpose of determining “whether a confidential record should be available for inspection and copying to the person requesting the right to do so.”  The Court found, however, that this 20 day parameter should not be applied as a blanket rule in other situations.  The Court instead relied on an administrative interpretation found in Iowa’s Uniform Rules on Agency Procedure which states access to records “shall be provide promptly upon request unless the size or nature of the request makes access infeasible.”  While this standard can be subjective, the Court did recognize that the size or nature of the request might play into the response time needed.

The Court held it was a close call whether or not the time it took the city to respond given the size and nature of the request was a violation of the open records laws, but the Court ultimately held the approximately 70 day delay was too long for substantial compliance.  The Court noted that for over a month during the time the request was outstanding the city did not communicate with the requestor.  The Court seemed most concerned with the fact that “it appears the video recordings of public proceedings became a stumbling block to the production of the hard copy documents.”  The Court felt adamantly that the city should have turned over the hardcopy documents as soon as available and then provided the video recordings later if more time for review was necessary.  The Court did recognize that the city employees and the city attorney had other significant responsibilities during the time they were trying to respond to the records request, but stated that because the testimony did not include specific dates or time frames “it is impossible to know how much time it really took city officials to work on Horsfield’s request, relative to other demands on city officials’ time.”

The requestor also claimed that it was a violation of the open records laws for the city to initially claim attorney-client privilege for some emails because it later waived that privilege and the requestor argued that was an admission that the city had “no defense to its failure to produce relevant and responsive documents.”  The Court disagreed.  It held “the City’s tactical decision to waive the attorney-client privilege . . . does not establish that the City violated the [open records] Act when it initially withheld them.”

Some things to learn or remember in light of this opinion are:  1) if you are trying to sort out a large or otherwise difficult records request, stay in regular communication with the requestor; 2) supply records as you go and do not wait until you have the request completed before providing the records; and 3) document the time you spend on compiling the records request.

Sierra Club must exhaust administrtative remedies before challenging Iowa DOT highway extension proposal

by Kaitlin Heinen

Sierra Club Iowa Chapter, Linda Biederman, and Elwood Garlock v. Iowa Department of Transportation
(Iowa Supreme Court, June 7, 2013)

The Iowa chapter of the Sierra Club has more than 5000 members residing in the state, some of which hike in Rock Island State Preserve and Rock Island County Preserve. The Iowa Department of Transportation (IDOT) is a state administrative agency that has proposed extending Highway 100 west of Cedar Rapids, which would run adjacent to Rock Island State Preserve and through Rock Island County Preserve, thus negatively impacting the ecosystems in the two preserves.

The Sierra Club Iowa Chapter and two of its members filed a petition for judicial review challenging IDOT’s Highway 100 project. The IDOT responded with a motion to dismiss, which was granted by the district court because the Sierra Club “had not exhausted administrative remedies by first seeking a declaratory order from IDOT under section 17A.9(1)(a).” The Sierra Club did not participate in any administrative proceedings with IDOT prior to filing the petition for judicial review.

On appeal, the Iowa Supreme Court addressed the issue “if a party challenging agency action must seek a declaratory order from the agency under section 17A.9(1)(a) before petitioning for judicial review in order to satisfy the exhaustion doctrine.” Important to note, Iowa Code § 17A.19(1) provides: “A person or party who has exhausted all adequate administrative remedies and who is aggrieved or adversely affected by any final agency action is entitled to judicial review thereof . . . .”  There are situations when a party can bypass the exhaustion doctrine; however, “the Sierra Club has not preserved error on an argument for one of these exceptions to apply.”

The Sierra Club filed a complaint in federal court, captioned “Complaint for Declaratory and Injunctive Relief.” The complaint involved the United States Secretary of Transportation and the Administrator of the Federal Highway Administration as defendants. The Sierra Club alleged that “the secretary and administrator did not follow the applicable federal statutes and regulations when they issued and approved the Final Supplemental Impact Statement for the Highway 100 project.” Because of the complaint’s caption, the Iowa Supreme Court held that the Sierra Club requested declaratory and injunctive relief. Because the Sierra Club sought declaratory relief, “the court must [construe] section 17A.9 to determine whether declaratory orders are mandatory or permissive.” Section 17A.9 was adopted in 1974 as part of the Model State Administrative Procedure Act. When enacted, 17A.9 required “any agency with authority to issue declaratory rulings to do so within thirty days after a party files the petition…Failure of the agency to do so results in the administrative remedy being ‘deemed inadequate or exhausted.’”

To construe such a statute, the court must determine legislative intent. If the statute’s language is unambiguous, the court looks no further. One could argue that “the requirement to file a petition for declaratory relief with the agency is permissive because the word ‘may,’ as found in section 17.9(1)(a), is unambiguous.” The Iowa Code’s rules of statutory construction state: “The word ‘shall’ imposes a duty. . . . The word ‘must’ states a requirement. . . . The word ‘may’ confers a power.” Further, “the legislature’s use of the word ‘may’ usually indicates legislative intent for the statute to apply permissively…[so] a person can argue that a party need not exhaust administrative remedies before filing a declaratory judgment action with the court.” But to the contrary, “when a statute provides a person with an administrative remedy and uses the word ‘may,’ but does not explicitly state the administrative remedy is the exclusive remedy, the person is still required to exhaust the administrative remedy before seeking court intervention…[so] a person can also argue that a party must file a declaratory order with the agency before seeking court intervention, because the Code uses the word ‘may.’” As a result of these competing interpretations, the court found the statute ambiguous.

After assessing the statute in its entirety, the court concluded the legislature’s intent when enacting section 17A.9(1)(a) “requires the Sierra Club to first petition IDOT and therein ask the agency to determine whether IDOT complied with sections 314.23(3) and 314.24 in extending Highway 100 adjacent to the Rock Island State Preserve and through the Rock Island County Preserve.” First, by using the term “inadequate or exhausted,” the legislature indicated that a party must first exhaust his or her administrative remedies before seeking court intervention. Second, an article written by the 1973-1974 counsel to the Subcommittee, Arthur Bonfield, “revealed that the legislature created the administrative procedure for agency-issued declaratory orders to replace the court-provided remedy of declaratory judgments for matters within an agency’s jurisdiction,” which means that the legislature clearly “intended section 17A.9 to be the preferred method for obtaining a declaratory order when a person challenges the agency’s administration of a statute.” Third, “in a declaratory order proceeding, the agency must state in its order the facts it relied upon and the basis for its decision…[which] ensures the agency will make a complete record and the parties will know the rationale supporting the agency’s decision.” Fourth, though the Sierra Club argued it would be futile to ask the agency to reverse its own decision, the court did not agree. In the past, “agencies…have decided many issues within their purview…[with] no evidence to suggest agencies will conduct declaratory order proceedings in a biased, unprofessional manner and without regard for the rules promulgated by the legislature.” Finally, “any party to a declaratory order may seek judicial review of that order…[which] protects a party to a declaratory order proceeding if the agency makes the incorrect decision.”

Therefore, the Iowa Supreme Court “concluded [overall] that the Sierra Club must first seek a declaratory order under Iowa Code section 17A.9(1)(a) before asking the court for relief; and thus, the exhaustion doctrine bars its petition.” The Iowa Supreme Court affirmed the district court’s judgment.

Volunteer members of regional planning commission board not subject to penalties for open meetings violations

by Gary Taylor

City of Postville et al., v. Upper Explorerland Regional Planning Commission et al.
(Iowa Supreme Court, June 7, 2013)

The Upper Explorerland Regional Planning Commission is a regional planning commission serving five northeast Iowa counties that is organized under Iowa Code chapters 28E and 28H. There are twenty-four commission members.  None receive compensation for their service on the commission, except that three members have salaries for full-time government positions that require them to serve on the commission.  Others receive reimbursement for mileage.

The commission was examining the feasibility and cost of either expanding the Postville office of the commission, or locating alternative office space in any of the five counties.  Contract negotiations for properties in the five-county area took place, and on September 23, the commission held a meeting to approve a contract to purchase property in either Decorah or Postville. Sixteen members attended. After lengthy discussion, the motion was made to approve a proposed purchase contract for the Decorah property. The attending members unanimously agreed with a proposal to conduct the vote by secret ballot. The members cast their ballots and then publicly counted the votes. The motion to purchase the Decorah property was approved 10-6.

Immediately after the vote concerns were raised about the propriety of the secret ballot vote under the Iowa Open Meetings Act (OMA). After the meeting one of the commission members told another member before leaving that there was a problem with the ballot vote. The same night, this concern was relayed to the commission’s executive director. The following Monday after the vote, all commission members received an email indicating concern about the legality of the secret ballot vote. Several members proposed that if the voting members revealed their vote and recorded their decision in the minutes, then the commission’s action would be legal. The commission also contacted the State Ombudsman’s Office, which recommended sending new written ballots to each voting member. The commission heeded this recommendation and instructed each voting member to reaffirm their vote and include their name on the ballot. Of the sixteen original voting members, one abstained, another returned the ballot unmarked, and a third did not return the ballot at all. Six members changed their votes in the subsequent reaffirmation. Despite this, the outcome remained the same with ten “yes” votes in favor of purchasing the property in Decorah. The commission distributed revised minutes of the meeting, which listed the name and vote of each member who was present for the September 23 meeting.

The City of Postville and a resident taxpayer of Allamakee County filed suit claiming fifty-one violations of the OMA for actions taken associated with the office relocation decision and several others.  Among the remedies requested by the City was an order that commission members be held personally liable for the OMA violations.  The district court found for the Commission on all counts.  The City appealed to the Court of Appeals.

The Court of Appeals boiled the claims down to three primary issues:   (1) whether a volunteer of a governmental body is immune under Iowa Code section 28H.4 for damages due to OMA violations; (2) whether the governmental body’s meeting notices met OMA requirements; and (3) whether a certain publication is a newspaper of general circulation, as required by section 28E.6(3)(a).

Volunteer immunity under OMA.  The commission and its members admitted to violating OMA with respect to the secret ballot and subsequently when the commission reaffirmed the vote by mail; however, they argued they are immune from liability under the state immunity provision in Iowa Code section 28H.4(2), which provides that “a director, officer, employee, member, trustee, or volunteer is not personally liable for a claim based upon an act or omission of the person performed in the discharge of the person’s duties, except for acts or omissions which involve intentional misconduct or knowing violation of the law, or for a transaction for which the person derives an improper personal benefit.”

The Court of Appeals noted that “intentional misconduct” requires more than a reckless disregard for the law, and a “knowing violation” requires a deliberate or conscious act. The court found no evidence that the actions of the members amounted to intentional misconduct or a knowing violation. Instead, the record shows the members did not identify an issue with the secret ballot vote until after its completion. Upon identifying the problem, the members self-policed their actions and took corrective measures.

On appeal the city argued for the first time that the immunity provided in 28H.4 does not apply to violations of OMA; however, because the court does not decide issues not presented in district court the issue was “left for another day.”

Posting of meeting notices.  The City alleged the commission conducted improper closed sessions lacking reasonable meeting notice from October 28, 1999, through August 19, 2010, basing its claim on the fact the commission posted its meeting notice on a bulletin board located in the hallway of the commission’s Postville office. The bulletin board is approximately thirty to forty feet from the main public access door, and is not visible from the entrance door to the office. The office is open to the public Monday through Friday from 8:00 a.m. until 4:30 p.m.

OMA requires notices of meetings to be provided “in a manner reasonably calculated to apprise the public” of the date, time, location and subject of the meetings.  One manner of notice specified in OMA is to “post the notice on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose ….”  The court remanded the case to the district court for further inquiry into whether the meeting notices met this standard.  It noted that the commission secretary posted the notice on the board at least five days in advance of each meeting, but the public generally does not utilize the hallway where the bulletin board is located unless the individual has an appointment or uses the restroom. The question remained how often the public uses the hallway or if the board and its contents are visible from the reception area.

Newspaper of general circulation. Iowa Code 28E.6 requires councils of governments to annually publish the “names and gross salaries of persons regularly employed by the entity” in “one newspaper of general circulation within the geographic area served by the joint board of the entity.” The City contended the Olewein Daily Register was not a newspaper of general circulation because there are no individual subscribers to the paper in three of the five counties, and no business subscribers in four of the five counties.

The court noted that the statute only requires publication in one newspaper – the legislature expressly stated it is not necessary to publish in multiple newspapers within a single geographic area. Moreover, it is not necessary to publish using a newspaper outside the geographic region. The undisputed record established there is no single newspaper available that has subscriptions in all five counties within the commission’s service region. The commission specifically selected the Register because it is the only daily newspaper serving the five-county area. A “newspaper of general circulation” is a publication that “contains news and information of interest to the general public, rather than to a particular segment, and that is available to the public within a certain geographic area….[It is] not determined by the number of its subscribers, but by its diversity….More compelling is the fact the Register serves the same area as the commission.”  The court sided with the commission on this claim.

The never-ending saga of Okoboji Barz (non-conforming use)

by Gary Taylor

City of Okoboji v. Leo Parks and Okoboji Barz, Inc.
(Iowa Supreme Court, April 26, 2013)

If you have attended one of my workshops you know that this ongoing dispute is one of my favorite discussion topics.  This is another case in the the efforts of the City of Okoboji to enforce zoning restrictions on properties owned by Okoboji Barz (Okoboji Boat Works, The Fish House Lounge, and Clucker’s Broasted Chicken), all located on the shore of West Lake Okoboji. The lakefront property is zoned residential, but has been historically operated as a marina pursuant to special-use permits allowing the preexisting nonconforming uses. In a series of previous cases (City of Okoboji v. Okoboji Barz, Inc., 717 N.W.2d 310, 315–16 (Iowa 2006);  City of Okoboji v. Iowa District Court, 744 N.W.2d 327, 332 (Iowa 2008)) the Iowa Supreme Court has held that while the use of the property as a marina is lawful under the special-use permits, the permits do not allow an expansion of the use to include on-premises consumption of alcohol with live entertainment, karaoke, hog roasts, and full-moon parties.

“Undeterred” (in the words of the Supreme Court), “the owner of the property sought to operate a bar on a structure called the Fish House Lounge, which, while generally moored to the marina’s ‘seawall,’ is capable of getting underway on the lake.” The Fish House Lounge has a class “D” liquor license obtained from the state, and not the City, based upon the state’s control of the lake bed. The City objected to the operation of the Fish House Lounge as contrary to the holdings of the Supreme in the previously-cited cases and sought declaratory and injunctive relief. The district court found that the Fish House Lounge cannot cruise the lake during winter months, has no regular cruise schedule, and is rarely seen cruising the lake. Patrons are asked to use the restroom facilities on the marina property. It offers live and recorded entertainment, hosts theme parties, karaoke, and other activities as late as midnight.  The district court concluded that the activities at the Fish House Lounge were the very activities prohibited by the Supreme Court in the previous cases, and entered an injunction prohibiting use of the marina property to “provide parking, access to or from, and supporting services, including bathroom facilities, to patrons of a boat, vessel, or structure on which alcohol is served or upon which entertainment, music, karaoke, abandon-ship parties, or howl-at-the-moon parties are provided.’ The injunction further prohibited the selling or serving of alcohol, wine, and beer on any boat or structure moored to or attached to the marina and on or from any boat or structure attached to a dock extending from the premises.  The property owner appealed.

The broad question before the Supreme Court was “whether our prior rulings can be avoided by moving the locus of prohibited activity onto a floating pontoon structure that is located above the state-owned lake bed and outside the geographic boundaries of the City, but which utilizes the upland marina property for ingress, egress, parking, and restroom facilities.” The property owner argued several points.  First, that the City cannot exercise its zoning authority over the Fish House Lounge because the Lounge is floating over the lake bed when it is moored to the marina’s seawall, and that this could only lead to one of two results: (1) The state owns the lake bed in its sovereign capacity, and under various statutes other state agencies – and not the City – are responsible for lake bed activities, or (2) the boundary line of the City is the mean high water mark of the lake, which the Fish House Lounge sits below when moored to the marina. Second, that the Fish House Lounge activities were merely accessory to the permitted use of operating a marina.

The Supreme Court dispensed with all of these arguments.  Contrary to the owner’s arguments, the City did not claim the authority to zone over the lake bed; rather, it was asserting jurisdiction only over the upland real property, and the use of the real property for ingress and egress to the Fish House Lounge, to provide parking for patrons of the Fish House Lounge, and to provide restroom facilities for patrons of the Fish House Lounge is inconsistent with the preexisting nonconforming use of the property for marina operations.  In the 2006 case the Court held that activities similar to those conducted at the Fish House Lounge could not be considered “merely an accessory use to the operation of the marina.”

Prior to 1972 [when zoning was enacted], the property was used for operating marinas. The marinas were open between 8:00 a.m. and 5:00 p.m., with the gas dock occasionally staffed until 8:00 p.m. As the district court noted, there was no evidence that, prior to 1972 when the City enacted its zoning ordinance, the property was used to provide nearly permanent mooring for a liquor establishment, to provide restroom facilities for patrons of such an establishment, or to provide parking for such use. Since 2008, however, the marina property has been providing access to a floating bar that stays open at night…. While it is true that the main platform upon which liquor is sold and loud activities occur is above the lake bed, it is obvious the activities of the Fish House Lounge are inextricably intertwined with the use of the real property subject to the City’s zoning restrictions. The use of the property for ingress and egress, for restroom facilities, and for parking to a floating bar moored at the marina are not accessory uses to the valid, nonconforming use of the marina. These uses of the upland real estate are also in violation of section 2(B)(2) of article VII of the City’s zoning ordinance, which prohibits such lakeshore lots from being used for access to commercial activities.

The Supreme Court agreed that an injunction was appropriate to prevent the use of the marina to support the activities of the Fish House Lounge.  Providing access, parking, and restroom facilities has had an adverse impact on the residential character of the waterfront.  The Supreme Court refused to enjoin the the provision of or sale of liquor on boats when moored at the docks (versus those moored directly to the shoreline); noting, however, that “this distinction makes little difference as the City has shown entitlement to an injunction that prohibits using the upland to provide ingress, egress, parking, or restroom facilities to patrons of boats or similar vessels selling alcohol or engaging in bar-type activities while docked at the marina.”




Linn County’s denial of ag exemption upheld by Iowa Supreme Court. Subtitle: “A residential tail wagging a farmland dog”

by Gary Taylor

Lang v. Linn County Board of Adjustment
(Iowa Supreme Court, March 29, 2013)

The Court of Appeals case from which this appeal originated is here.  The Supreme Court provided an extensive set of facts that gives readers a more complete picture of the situation.  Space does not permit a complete review here, other than to say that the facts illustrate Lang’s creative attempts to gain an ag exemption for several parcels with houses he developed subsequent to his subdivision of his original 49-acre tract.  The reader is strongly urged to review the Supreme Court opinion for a detailed factual background.

Supreme Court’s legal analysis.  The Supreme Court began by pointing out the differences between the statutory language of the ag exemption as it was originally adopted, and as it appears today.

Iowa Code 335.2 Prior to 1963:

No regulation or ordinance adopted under the provisions of this act shall be construed to apply to land, farm houses, farm barns, farm outbuildings or other buildings, structures, or erections which are adapted, by reason of nature and area, for use for agricultural purposes as a primary means of livelihood, while so used.

Today (after 1963):

Except to the extent required to implement section 335.27, no ordinance adopted under this chapter applies to land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.

The amendment put the focus of the exemption on whether the “land, farm houses, farm barns, farm outbuildings or other buildings or structures” are “primarily adapted” for the asserted agricultural purpose, when considering the “nature and area.”  It turned the focus away from the use of the property as a “primary means of livelihood” for the landowner.  Thus the amount of income generated for the landowner by agricultural activities, as a percentage of the landowner’s total income, is no longer the focus.

However, the legislature at the same time added the requirement that the property be “primarily” adapted to agricultural use. In our view, this authorizes the county to deny the farmhouse exemption when the record, as here, indicates that the agricultural activities are basically a sideline designed to obtain an agricultural zoning exemption for the owners’ residence. The Board was entitled to look at the relative size, value, and construction date of the house compared to the scope, value, and duration of the claimed agricultural activities. For example, we do not believe the legislature intended to allow a homeowner to avoid county zoning requirements simply by having a tomato patch in his or her backyard….[We believe]  that the “primarily adapted” test allows county zoning authorities to consider the overall importance and underlying purpose of the agricultural activities in question.

“In our view, the Zoning Board of Adjustment (ZBA) could reasonably conclude that the Langs’ large, manorial residence on the 6.52 acres was a residential tail wagging a farmland dog and that the property as a whole was not primarily dedicated to agriculture. Although the Langs had recently planted small trees, they could not be expected to mature for many years and could be viewed as having an aesthetic purpose. Photographs indicated that the other claimed farming activities were not substantial in scope, even relative to the size of the parcel. The Langs presented no evidence of actual production, beyond the bare claims they made in their application for an agricultural exemption.”  The Lang’s claimed that the county improperly applied a minimum acreage test and flunked the Langs’ primary residence on a 6.52-acre parcel simply because it was not big enough; however the Supreme Court disagreed, noting that the “zoning administrator’s report, the recording of the 2004 ZBA hearing, and the ZBA’s 2-2 decision all indicate that the county did not summarily reject the application based on parcel size.  This is not to say that the size of the parcel should not be a consideration.  “If size were not relevant, then nothing could prevent a developer from obtaining a zoning exemption for an entire development subdivided into half-acre lots so long as some agricultural product were planted in the development and tended by the homeowners.”

Because the Linn County Zoning Ordinance prohibits more than one dwelling on a single undivided parcel of land, the Langs sought an agricultural exemption for a second house built on a 43.3-acre tract of land.  The second house was occupied by Langs’ son.  The Court observed that “regardless of the status of the land, Iowa Code 335.2 anticipates that a county may consider whether a specific building or structure [on the land] is primarily adapted for use for agricultural purposes.”   The Court found that substantial evidence existed to support the ZBA’s finding that the second house under the son’s tenancy would not be “primarily adapted” for agricultural purposes.  Referencing an Ohio Court of Appeals case, the Court stated that “When landowners build an additional house on their land, rent it out, and then want to claim it as another exempt farmhouse, it is appropriate for the county to ask how much time the tenants of the house spend on farming activities. Otherwise, a farmer could erect multiple homes and avoid county zoning simply by assigning nominal farm tasks to an occupant of each home.”

The Court concluded by observing that “the Langs’ construction of various homes on what began as one property had the potential to cause problems for third parties down the road. When a house has been erected by taking advantage of an agricultural exemption, but then is later sold to a person who is not engaged in agriculture, as occurred in this case with respect to [one of the houses on a subdivided parcel], the house becomes a nonconforming use, which limits the new owner’s ability to modify or, if necessary, to rebuild the house.

US Supreme Court declines to hear Des Moines franchise fee case

Yesterday the US Supreme Court declined to hear the appeal of the city of Des Moines in its franchise fee case, blogged here.  The Iowa Supreme Court ruled in March that the city’s 5-percent fee on utility bills was beyond that allowable as reasonably related to the administration of electric and gas franchises, and that the excess must be returned to the people who paid it.

You can read the Des Moines Register article concerning yesterday’s action here.

Hamburg (IA) adult business licensing scheme preempted by state law

by Gary Taylor

Mall Real Estate, LLC v. City of Hamburg
(Iowa Supreme Court, July 27, 2012)

In 2008, the Hamburg city council passed its “Sexually Oriented Business Ordinance.” It contains provisions relating to licensing and zoning and imposes a range of regulations upon sexually oriented businesses.  Businesses subject to the terms of the ordinance include adult cabarets, which the ordinance defines, among other things, as any “business or entity that is with the emphasis on observation or viewing of nude or semi-nude performances whether the performers receive compensation or not, that regularly features persons who appear nude or semi-nude.” The ordinance requires a sexually oriented business to have a valid sexually oriented business license and an employee of a sexually oriented business to have a valid sexually oriented business employee license. Further, the ordinance regulates many aspects and activities of sexually oriented businesses, including the consumption of alcohol on the premises, exterior design aspects of the businesses including signage, hours of operation, the exhibition of sexually explicit films, live nudity, and siting. For example, the ordinance prohibits any person from intentionally or knowingly appearing in a state of nudity or from intentionally or knowingly violating Iowa Code section 728.5. The ordinance contains requirements that seminude employees remain more than six feet away from customers and on a stage at least two-feet high. It also prohibits the exchange of gratuities between customers and seminude employees and prohibits intentional contact between customers and seminude employees.  If a sexually oriented business licensee violates the ordinance or knowingly allows an employee to violate the ordinance, then the City may suspend or revoke the license of the business and the employee.

Mall Real Estate (MRE) leases space in Hamburg to the Hamburg Theatre for the Performing Arts, aka Shotgun Geniez.  Performers at the Hamburg Theatre perform nude, seminude, and fully clothed. At times during performances, performers physically contact customers, often by sitting in their laps. The performers also spend time talking to customers. The Hamburg Theatre does not have a liquor license or sell alcohol, but it does allow customers to supply their own alcohol.  Shortly after the City adopted the ordinance MRE filed a lawsuit seeking to declare the ordinance unconstitutional, and also that the ordinance is in conflict with, and is therefore preempted by state law. The district court upheld the validity of the Hamburg ordinance, and MRE appealed.  The Iowa Supreme Court decided the case on the preemption issue and did not address MRE’s constitutional claims.

MRE argued that because Iowa Code 728.5(3) creates a “theater exception” to the regulation of obscenity and the Hamburg ordinance did not, the ordinance is therefore in conflict with and preempted by state law.  The City argued that the final sentence of 728.11 – also in the state code chapter pertaining to obscenity – allows local governments to pass ordinances related to zoning and licensing of businesses dealing in obscene materials.

Iowa Code 728.5 provides in part:

1.  An owner, manager, or person who exercises direct control over a place of business required to obtain a sales tax permit shall be guilty of a serious misdemeanor under any of the following circumstances:
a.  If such person allows or permits the actual or simulated public performance of any sex act upon or in such place of business.
b.  If such person allows or permits the exposure of the genitals or buttocks or female breast of any person who acts as a waiter or waitress.
[c.  through f. contain more such circumstances]
2.  However, if such person allows or permits a minor to participate in any act included in subsection 1, paragraphs “a” through “d”, the person shall be guilty of an aggravated misdemeanor.
3.  Except for subsection 1, paragraph “f”, the provisions of this section shall not apply to a theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances and in which any of the circumstances contained in this section were permitted or allowed as part of such art exhibits or performances.
Iowa Code 728.11 is a “uniform application” (preemption) provision. It states:
In order to provide for the uniform application of the provisions of this chapter relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this chapter, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials.  All such laws, ordinances or regulations shall be or become void, unenforceable and of no effect on January 1, 1978.  Nothing in this section shall restrict the zoning authority of cities and counties.
The Iowa Supreme Court looked to its previous cases construing these provisions and concluded that Hamburg’s ordinance is preempted by the Iowa Code.  In Chelsea Theater Corp v. Burlington the Court determined that chapter 728 was not limited to the dissemination of obscene materials to minors, but rather restricted local governments from enacting any local ordinances regulating obscene materials.  This led the Court to examine whether live nude dancing constituted “obscene materials” as the term is used in 728.11.  “Materials” is defined in 728.(3) as “any book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.”  “Obscene materials” is defined in 728.(5) as “any material depicting or describing the genitals, sex acts, masturbation, excretory functions or sadomasochistic abuse which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political or artistic value.” The Court looked to legislative history to conclude that the legislature intended to include live nude dancing within the meaning of obscene materials in the code.  As a result, Hamburg’s attempt to regulate live nude dancing through its licensing ordinance was preempted by chapter 728 of the Iowa Code.

The Court noted that, contrary to the City’s assertion, the last sentence of 728.11 only creates an exception to the preemption for local zoning authority, not for licensing or permitting authority.  “Accordingly, unless a local ordinance is a zoning ordinance it is preempted to the extent it regulates material regulated by chapter 728.”

Chief Justice Cady and Justice Waterman each filed separate dissenting opinions.  Chief Justice Cady took issue with the reasoning the majority followed to find that “obscene materials” included live nude dancing.  “In the judgement of the majority, ‘materials’ means a dancer to our legislature.  This conclusion not only defies common sense, it defies our accepted rules of [statutory] construction….Thus, for the majority to conclude it would be absurd for our legislature to have left nude dancing out of its preemption scheme is itself absurd.”

Justice Waterman joined in the preemption analysis of Justice Cady, and wrote further to express his opinion that not only is the Hamburg ordinance not preempted, it passes constitutional muster under well-settled precedent.