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

by Gary Taylor

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

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

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

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

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

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

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

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

Date of Board’s decision, not date of approval of meeting minutes, starts clock for filing appeal

by Gary Taylor and Hannah Dankbar

Hyde v. Sully County Board of Adjustment
South Dakota Supreme Court, September 28, 2016

Hyde appealed a decision from the Sully County Board of Adjustment (the Board) to grant a conditional use permit (CUP) to Ring-Neck Energy & Feed, LLC for an ethanol plant. The Board approved the CUP in a meeting held on July 20.  When the next met on August 4 it approved the minutes of the July 20 meeting.  Hyde challenged the approval in district court on August 20, which was 31 days after the Board’s approval but only 16 days after approval of the meeting minutes.  Hyde claimed that the approval was illegal due to violations of the open-meeting laws, and that an ethanol plant is not allowed under the Sully County zoning ordinance. The court determined that the petition was untimely, and Hyde appealed.

Regarding the timeliness of the petition in district court, state statute (SDCL 11-2-61) requires these petitions to be filed within 30 days of the day the decision is filed. Hyde argued that the relevant date for appeal purposes was the date of the Board’s approval of the meeting minutes, not the Board’s decision to grant the CUP.  The state statute requires that a petition set forth  “the grounds of the illegality” of the decision being challenged; thus the statute is referencing the date of the decision claimed to be illegal.  That decision would be made on July 20.  The Hydes do not claim any illegalities associated with the decision made on August 4 to approve the minutes.

Because the petition was not filed in a timely manner, the court did not hear the other arguments raised on appeal.

Supermajority requirement for county (MN) zoning ordinance amendment allowed to stand

by Gary Taylor

Motokazie! Inc., et al., v. Rice County, Minnesota
(Minnesota Court of Appeals, December 17, 2012)

Motokazie! Inc., sought to build a motorsports facility in Rice County, Minnesota that would include snowmobile and go-kart racing – land uses not allowed in the zoning district. Motokazie! and co-appellant Portinga Brothers LLC applied for a text amendment to Rice County Zoning Ordinance so that the uses they desired could be allowed with a conditional use permit. The Rice County Board of Commissioners (Board) considered the proposal and voted three-to-two in favor of the proposed change; however, under the Rice County zoning ordinance a supermajority (four-fifths) vote is required to adopt a zoning amendment.  Therefore, the amendment proposed by Motokazie! and Portinga was deemed defeated.

Motokazie! and Portinga brought an action against Rice County, arguing that: (1) the zoning amendment was actually approved by the three-to-two vote because Minn. Stat. § 375.51(1) dictates that a simple majority approves such amendment, and (2) the zoning amendment was automatically approved under Minn. Stat. § 15.99(2)(a) because it was not approved or denied within 60 days. The district court denied relief on both arguments.  The case was appealed to the Minnesota Court of Appeals.

Supermajority.  The Court of Appeals concluded that while there is no explicit or specific grant of authority to create the supermajority requirement , such authority is clearly contemplated within chapter 394.  Minn. Stat. § 394.21(1) authorizes counties “to carry on county planning and zoning activities.” Minn. Stat. § 394.25(7)(a) authorizes a county to adopt “procedures to be employed in land development.”  Minn. Stat. § 394.312 refers to “procedures for the administration of official controls.”  Moreover, it is well settled that counties have the authority to exercise not only the powers as are expressly granted to them by the state, but also have the authority to enact such procedural rules and requirements necessary to exercise such powers.  Because chapter 394 authorizes the county to enact procedural controls, the enactment of a supermajority rule for zoning amendments was within the authority of the county and is not inconsistent with the procedural requirements of section 375.51.

60-day deadline. Minn. Stat. § 15.99(2)(a) states in part that “an agency must approve or deny within 60 days a written request relating to zoning, septic systems, watershed district review, soil and water conservation district review, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action. Failure of an agency to deny a request within 60 days is approval of the request….”  Motokazie! and Portinga argued that the 60-day rule required approval of the requested amendment and that it was undisputed that respondents did not comply with the 60-day rule.  The county responded that the 60-day deadline was extended by Motokazie’s agreement to a timeline that went beyond 60 days, and by an e-mail from a county official indicating that the decision would come after the 60-day deadline had passed.  The county further argued that a text amendment request is not “a written request relating to zoning . . . for a permit, license, or other governmental approval of an action” within the meaning of the statute. The Court of Appeals sided with the county on the statutory interpretation argument, concluding that a text amendment is of a different character than a permit or license, and therefore not contemplated by section 15.99(2)(a).  The Court observed that amending the text of a zoning ordinance would apply to all properties of that type in the county, rather than the specific property to be permitted, licensed, subdivided, or rezoned; making it “a pure exercise of the legislative power of the county.”  Also, approval of text amendment request would not allow the applying party to undertake an action, rather the request is for the government to take an action. The Court viewed this conclusion as being consistent with the policy goals for section 15.99, believing that “it benefits the public interest to have [text amendments that affect a] large class of property be made with adequate time for a fully deliberated decision” rather than having an automatic approval penalty result in approval without any justifications.

The district court decision was affirmed.

E-mail from planning department staff member after building permit issued was not an “appealable decision” regarding the permit

by Gary Taylor

BT Residential, LLC v. Board of Zoning Adjustment of the City of Kansas City
(Missouri Court of Appeals, December 4, 2012)

On July 16, 2010, the City of Kansas City issued a permit for the construction of a cellular tower to the American Tower Corporation (ATC). In early August 2010, BT Residential (BT), the owner of a neighboring property, became aware of the construction of the cellular tower after a 150-foot, steel pole was erected and contacted the City to review the plans for the tower. On August 10 representatives for BT met with members of the City Planning Department to discuss perceived violations of the Development Code. On August 17 the attorney for BT met with the Director of the Department and explained why BT believed that the building permit had been improperly issued because the cellular tower and equipment building on the property did not meet the requirements of the Development Code. On August 18 BT’s attorney sent a follow-up email reiterating his points and asking the Department to issue a stop-work order and to revoke the permit. On August 29 the attorney sent an email to another member of the Department indicating that he had not yet received a written response from the Department. On August 30 The Department member sent the attorney an email stating: “My apologies if there was any miscommunication, I intended the written response to follow once information to allow a complete response was available. We have been unable to locate the documentation related to the demonstration of need provisions, but have been in contact with the applicant and now expect receipt by midweek. We will continue to follow-up with the applicant as needed, and will provide you an update once we have confirmed compliance to those provisions.” The e-mail went on to cite the relevant provisions of the Development Code as they related to the project.  On September 3 BT filed an appeal with the Board of Zoning Adjustment (BZA) claiming to challenge “the determination of the City’s Building Official… that the permit issued to American Tower Corporation for construction of a new cell tower complies with the City’s Zoning and Development Code, Chapter 88.” ATC filed a response opposing BT’s appeal and moving for dismissal of that appeal based upon the fact that BT had not filed its appeal within fifteen days of the issuance of the building permit or within fifteen days of discovering that such a permit had been issued as required under the Development Code.  The BZA dismissed BT’s appeal, concluding that the August 30 email from the staff member of the Planning Department was not an appealable decision under the Development Code.  When BT appealed the BZA decision the trial court affirmed.

In response to BT’s claims that the August 30 email constituted an appealable administrative determination, the Court of Appeals reviewed the City’s Development Code and concluded that in order for the e-mail to constitute an appealable decision two elements must be present: (1) that the Director of the Planning Department had the authority to revoke the building permit and (b) that he delegated that authority to the staff member who sent the e-mail.  The Court determined that neither were the case.  No provision of the City Development Code grants the Director the authority to revoke a previously granted building permit based on considerations which existed at the time of the permit’s original issuance. Furthermore, even if the authority did exist somewhere in the Development Code there was no evidence in the record that such authority was delegated to to the staff member or for that matter, whether the staff member even purported to exercise such authority. While BT argued that it could be inferred from the fact that the staff member handled communication with BT following BT’s request that the permit be revoked that the Director had authorized the staff member to decide whether to revoke the permit, the BZA was not required to make such an inference. In addition, the language contained in Franzen’s e-mail could just as reasonably be interpreted as an explanation of the Director’s decision to issue the permit, as opposed to a decision whether to revoke that permit. Thus, the BZA could reasonably have concluded that Franzen’s e-mail was not an appealable decision.

FCC creates “shot clock” for cell tower/antenna applications

by Gary Taylor

On November 18 the Federal Communications Commission (FCC) issued a declaratory ruling that could have a significant impact on the way some communities process applications for cell towers and antennas. The ruling establishes a “shot clock” for local zoning authorities acting on wireless facilities siting applications. The Federal Telecommunications Act (FTA) requires local governments to act on applications within a “reasonable period of time.” The order sets presumptive time limits based on what the FCC considers to be reasonable. Under the ruling, local governments have 90 days to act on requests for collocations (placing antennas on existing towers) and 150 for all other applications. Failure of the local government to issue a decision within the appropriate time frame will constitute “failure to act,” which will allow the applicant to bring a lawsuit. The “shot clock” is rebuttable in court, meaning that the local government may produce evidence that the delay was reasonable under the circumstances. Of course the local government will bear the costs of litigation (at least initially) to defend the reasonableness of the delay. The rebuttable presumption is a less-drastic alternative than what was requested by the wireless service industry, which had pressed for an automatic grant of a requested permit if the applicable deadline was not met.

The ruling also determined that where a local government denies a personal wireless service facility siting application solely because that service is available from another provider, such a denial violates the section of the FTA that “prohibits, or has the effect of prohibiting the provision of personal wireless services.” The FCC was convinced of the need for such a determination by evidence produced by the wireless industry that cities and counties were using a “one is enough” rationale for denying applications for towers and antennas.

The FCC declaratory ruling issued on November 18 can be accessed here.  The FCC’s news release about the ruling is here.

Archives

Categories