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.

Failure to sue the proper party proves fatal to rezoning challenge

Rita Aust, et al. v. Platte County, PC Homes L.L.C., Kelly Jo Yulich Trust, Arlene Kagan and Wendy Winer
Missouri Court of Appeals, December 29, 2015

Real Estate developer PC Homes entered into a purchase agreement with three landowners to buy their property with the purpose of developing it into a single-family community in Platte County, MO. Platte County Planning and Zoning Commission twice denied the application to rezone the property from “agricultural” and “rural estates” to “single family high density” and “planned residential.” The Platte County Commission approved the rezoning to “planned residential.”

Aust and 41 other Platte County property owners (Appellants) filed a petition in the Circuit Court of Platte County for a writ of certiorari and declaratory judgment that the Commission’s decision was illegal, unreasonable and arbitrary. They wanted the rezoning to be denied or rescinded. Platte County was the only defendant on the petition. Platte County filed to dismiss the petition on multiple grounds.

The circuit court dismissed the petition, which was followed by an appeal.

The Appellants argued that the circuit court erred in dismissing their complaints because: (1) the provided proper notice to all parties; (2) their failure to file the record of the administrative proceedings within the statutorily-required time frame was not fatal to their claim; (3) declaratory relief was available to them; and (4) they sufficiently pled a claim for injunctive relief.

In addressing the first two points on appeal, the court referenced Section 64.660. Even though Platte County is a non-charter first class county, its planning and zoning program operates under statutes of second and third class counties. Section 64.660 provides in part, that any land owners disturbed by a county commission decision may present a petition in circuit court within 30 days after the decision. The statute also provides that after the petition is presented the court should allow a writ of certiorari. The court is allowed to reverse, affirm or modify the decision brought up for review (64.660.2).

The Appellants filed the petition against the County, not the County Board of Commission. This led to the Appellants being unable to file the record within 30 days of filing their petition. The Appellants sought to include the individual Commissioners within their official capacities, they did not ask to join the Commission as a body. Because the Appellants failed to seek a writ of certiorari against the proper party under Section 64.660 and did not turn in the record within 30 days the first two points were denied.

Regarding the third point, Section 64.660 provides for judicial review of the Commission’s zoning decisions through a petition for writ of certiorari. A declaratory judgment is not available to the Appellants because the option of the legal remedy precludes declaratory relief. Point three was denied.

Regarding point four, parties are not allowed to obtain equitable relief, such as an injunction, “unless the facts pleaded in the petition show they lack an adequate remedy at law”. The Appellants did not plead any facts showing that they lacked an adequate remedy at law. Point Four was denied and the circuit court’s judgment was affirmed.

Hearing before planning commission not a ‘contested case’ under Missouri Administrative Procedures Act

by Andrea Vaage

450 N. Lindbergh Legal Fund v. City of Creve Coeur, Missouri
Missouri Court of Appeals, Eastern District, June 16, 2015

Biermann Company owned a 1.98 acre tract in Creve Coeur, Missouri. The property was located in a General Commercial zoning district, which allows assisted-living facilities as a conditional use. Biermann Company applied for a conditional-use permit for an assisted-living facility for the elderly. The Planning and Zoning Commission recommended approval of the CUP after a public hearing, and the City council later approved the permit application.

Plaintiffs sought judicial review of City of Creve Coeur’s approval of the conditional-use permit as a contested case under the Missouri Administrative Procedures Act (MAPA). The trial court dismissed the petition on its merits.  The plaintiffs appealed the decision.

The threshold question before the Court was whether the case could be tried as a contested case (versus a noncontested case) under MAPA.  MAPA  defines a contested case as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” In order for a case to qualify as contested, parties must be given an opportunity for a formal hearing with the presentation of evidence, including sworn testimony and cross-examination of witnesses.  Contested cases also require written findings of fact and conclusions of law.  The hearing must be mandated by a statute or ordinance outside the MAPA.

As per rules set out in Creve Coeur City Code 405.170, the Planning and Zoning Commission held a public hearing about the conditional-use permit for the assisted-living facility. The City Code provides no procedural requirements for the hearing. The hearing for the assisted-living facility was held on the record and those who spoke were sworn in; however, no witnesses were examined or cross-examined, no objections to evidence were made, and no formal rules of evidence were followed.  Furthermore, the hearing was held for the Planning and Zoning Commission to make a recommendation to the City Council. The City Council made the final decision for the CUP application; therefore, the hearing held before the Commission did not determine the legal rights, duties, or privileges of specific parties.

The Court found that the recommendation of the Planning and Zoning Commission could not be reviewed as a contested case, and since plaintiffs sought judicial review under the sections governing contested cases it was improper for the trial court to consider the case.  As a result, the Missouri Court of Appeals reversed the case and remanded it to the trial court with instructions to dismiss the petition for review on grounds that plaintiffs failed to state claim upon which relief can be granted.

Council’s rescission of conditional use permit based on misrepresentation was not based on substantial evidence

by Gary Taylor

Oneida Seven Generations Corp. & Green Bay Renewable Energy v. City of Green Bay
Wisconsin Supreme Court, May 29, 2015

Oneida Seven Generations Corporation sought a conditional use permit (CUP) to install a renewable energy facility in the City of Green Bay.  The facility would take municipal solid waste and turn it into energy via a pyrolytic gasification system. The application was supported by a 149-page report on the facility. The report included proposed blueprints for the facility and artist’s renderings of its exterior. It also contained photographs of a pyrolytic gasification unit with various parts labeled, including its “exhaust stack.” In addition to these illustrations, the report described the various permits that would be required from the Wisconsin Department of Natural Resources (DNR) and the requisite reporting to and oversight by the DNR of the facility’s emissions. The report also contained a 50-page section entitled “Emissions,” which consisted of two papers analyzing the impact on air quality of similar facilities. The papers identify possible emissions from conversion technologies, explain that they are significantly lower in amount than emissions from other types of facilities, and observe that the emissions from facilities using conversion technologies fall within local, state, federal, and international emission limits. The papers were followed by an appendix listing over 100 facilities throughout the world that are disposing and converting biomass (principally municipal solid waste) in the process of producing energy and/or fuels.

During the question and answer session at the February 2011 Planning Commission meeting, commissioners asked numerous questions about the gasification process, the technology and its use in other communities, emissions, building appearance (including exhaust stacks), and several other topics. At the conclusion, the Plan Commission voted unanimously to recommend approval of the conditional use permit. Their recommendation suggested that a number of conditions be placed on the permit. These included the requirement that the facility comply with all municipal regulations and the requirement that the facility comply with federal and state regulations governing air and water quality.

The Green Bay Common Council took up Oneida Seven’s request on March 1, 2011.   Council members asked many more questions regarding emissions and waste material. At the conclusion, the Council voted 10-1 to approve the conditional use permit with the conditions recommended by the Plan Commission.

Although the City initially voted to grant the permit, it subsequently voted to rescind the CUP on the basis that it was obtained through misrepresentation. This came after Oneida Seven applied for the various city, state, and federal permits it would need for the project and submitted plans to accompany those applications.  Members of the public complained to the Green Bay City Council about many matters related to the proceeding, including that the stacks and emissions referenced in the building permit were not on the plan submitted for the CUP.  The  Council voted to direct the Plan Commission to hold a hearing to determine whether the conditional use permit had been obtained by misrepresentation. After taking more testimony and receiving more documents from Oneida Seven, the Commissioners unanimously agreed that they had had adequate information to reach a decision on the CUP, that they had not been misled, and that Oneida Seven had not made misrepresentations. The Commission relayed these findings to the Council in a report. The Council considered the Commission’s findings at a meeting on October 16, 2012. A motion to approve the decision of the Commission did not pass, but a motion to rescind the conditional use permit passed by a vote of seven to five.  Oneida appealed, lost at trial court, but won at the Court of Appeals.  The City appealed to the Wisconsin Supreme Court.

The Supreme Court was asked to consider whether the City’s decision to rescind Oneida Seven’s conditional use permit was supported by substantial evidence. Substantial evidence is evidence “of such convincing power that reasonable persons could reach the same decision as the board.” In determining whether the substantial evidence test is met, a court should “take into account all the evidence in the record.”  After carefully dissecting the entire record of statements made by Oneida Seven representatives at the Commission and Council meetings, and examining them in the context of the questions being asked of them at the time, the Supreme Court could not find evidence in the record on which a reasonable person could rely to find that Oneida’s statements about emissions and hazardous materials were misrepresentations. Therefore the Supreme Court concluded that the City’s decision to rescind the conditional use permit was not based on substantial evidence.

Dissenting opinion

Justice Roggensack dissented, arguing that the majority opinion did not accord the Council’s decision the presumption of correctness and validity that the law requires, and that instead, the majority opinion substituted its view of the evidence for that of the Council, contrary to law.  Material misrepresentations were made to the Council in regard to emissions during operation of the gasification facility and such a facility was not experimental because solid municipal waste was being used as the feedstock in other gasification facilities. A reasonable view of the presentations made March 1, 2011, when Oneida Seven obtained the CUP, supported the Council’s finding that it was misled.

Legally sufficient hearing must allow public comment on the underlying reason for the requested zoning amendment

by Hannah Dankbar

Campbell, et al., v. Franklin County and Union Electric Company d/b/a Ameren Missouri
Missouri Supreme Court, February 3, 2015

Multiple individuals joined the Labadie Environmental Organization (LEO) to file a writ of certiorari claiming that Franklin County Commission made errors in their adoption of zoning amendments that would allow Union Electric Company to build an ash-coal landfill next to its power plant in Labadie.

The organization made two claims on appeal: (1) the commission did not conduct a legally sufficient hearing before adopting the zoning amendments that would allow the coal-ash landfill, and (2) the court erred in finding that the zoning amendments were promoting public health, safety and welfare and are therefore valid.

Ameren (the owner of the Labadie Power Plant) publicly announced the proposal to build the coal-ash landfill on the land next to the power plant. The plant is the only public utility power plant in Franklin County and the only possible location for the coal-ash landfill. LEO alleges that the chairman of the Planning and Zoning Commission told speakers at the public hearing that they could not discuss Ameren or the proposed site for the landfill, and that county officials “interrupted speakers when they attempted to discuss Ameren’s proposed Labadie landfill site…”  LEO alleges that placing limitations on what the public was allowed to speak about meant that the county had not conduced a legally sufficient hearing.

After LEO filed their petition, the court asked the county to produce records from the meeting. The county did, and the commission and Ameren filed motions to dismiss for failure to state a claim. The court dismissed the first count of LEO’s petition and determined that the zoning amendments were valid.  LEO appealed.

The Missouri Supreme Court noted that the statute does not expressly provide whether a public hearing is required, nor does it explicitly define what constitutes a “hearing.”   The Court concluded first that it would be “nonsensical” to require public notice of a non-public hearing.  The hearing, therefore, was a public hearing.

Following that is the question whether the public hearing was insufficient because the commission precluded the public from addressing Ameren’s proposed coal-ash landfill.  A dictionary definition of “hearing” is “a session…in which testimony is taken from witnesses,” “an opportunity to be heard to present one’s side of a case, or to be generally known or appreciated,” and “a listening to arguments.”  Given the plain language meaning of the word “hearing,” the Court concluded that the legislature intended for members of the public to be able to present their side of the case.  The hearing, therefore, should be conducted so that the public can address the subject matter of the proposed zoning amendments.  Assuming LEO’s allegations are true, the manner in which the hearing was conducted arguably denied the citizens of Franklin County a fair opportunity to be heard and to present their side of the case.  It prevented them from discussing the actual, underlying subject of the amendments.

The Missouri Supreme Court remanded the case to the circuit court to direct the county to hold a legally sufficient hearing.

 

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.

Breach of contract claim on development agreement could not be amended by trial court

by Melanie Thwing

Honeyager v. City of New Berlin
(Wisconsin Court of Appeals, March 9, 2011)

In 2005 William and Elaine Honeyager and WED Development, LLC entered into a development agreement with the City of New Berlin, WI. This contract included the Honeyagers constructing a sewage system for their eight lots. This system would also benefit seven other lots that were already developed. The City agreed to specially assess the owners of the seven developed lots and these proceeds would go to the Honeyagers.

The Honeyagers state that it was their belief the City would collect the 7/15 of the total cost which was approximately $38,000. In a signed affidavit by the Honeyager this number was understood after a neighborhood meeting that occurred prior to the contract being signed.

In the signed contract the city engineer says that the additional lots would be, “collectively assessed half of the cost of the sewer main and individually assessed for the full cost of the sewer laterals connecting their respective properties to the sewer main.” Ultimately the City chose a different method of assessment and the other property owners were only charged $19,000.

The Honeyagers then filed a civil lawsuit against the City claiming a breach of the duty of good faith and fair dealing in contract. In trial court the City moved for summary judgment which was denied. The Honeyagers choose to file a trial brief with proposed jury instructions. In the brief it was pointed out that rarely did the City choose this method of assessment and that the Honeyagers were charged close to three times as much per lot as the existing homes.  It was the Honeyagers’ argument that the City had a duty to assess each property in a way that would cause uniformity in assessments for the area.

Then the morning of the trial at the City’s request the court changed the Honeyagers’s claim from one of breach of contract to one forproperty overassessment. Following this the trial court dismissed the action claiming that they had not followed the proper procedures for filing an overassessment claim, which should have been brought under Wis. Stat. § 66.0703(12).

The Honeyagers then appealed. In Autumn Grove Joint Venture v. Rachlin the court found that trial courts could amend pleadings under Wis. Stat. § 802.09(1) and (2) so that they conformed to the evidence. This can only happen, however, if the issues are tried, and evidence presented by both parties. This cannot apply here because no issue was tried.

The Wisconsin Court of Appeals also looked at the Honeyagers’s trial brief to determine whether it effectively amended their action to an overassessment claim. The court also rejected this claim because after reading the brief it concluded that the Honeyagers merely aimed at illustrating the harm inflicted by the City’s bad faith by stating how the assessment was divided and how they were put at a disadvantage.  It did not constitute a change in the nature of the claim.  If the trial court had found the pretrial brief inappropriate it had the right to reject it, but not the authority to change the action.

The case was reversed and remanded for further proceedings.

City not proper party to certiorari action against zoning board of appeals

by Gary Taylor

Acevedo v. The City of Kenosha and the Kenosha City Zoning Board of Appeals
(Wisconsin Court of Appeals, December 22, 2010)

In March 2007, Acevedo began operating a child day care center in the lower unit of a two-family residential dwelling zoned RG-1 General Residential District in the City of Kenosha. The property is owned by Acevedo’s mother; however, neither Acevedo nor her mother reside at the property.   In April 2009, Acevedo sought to obtain a license from the state to operate a second child day care center in the upper unit of the property.  A licensing supervisor from the Wisconsin Department of Children and Families (WDCF), contacted the City of Kenosha Zoning Coordinator, with concerns about licensing another child care center at the same residential property.  This inquiry for the first time alerted the City of Kenosha Department of Neighborhood Services and Inspections that Acevedo was seeking a license from WDCF to operate a child day care center in the upper unit of the property.  The zoning administrator informed Acevedo that the child day care center in the lower unit and the proposed child day care center in the upper unit violated the City of Kenosha zoning ordinance.  After informing Acevedo, the city also notified the property owner (Acevedo’s mother) of the zoning ordinance violation and included a directive to cease and desist all day care activities at the property by May 30, 2009.

In July 2009 Acevedo filed a request for an administrative appeal with the City of Kenosha Zoning Board of Appeals.  The matter came before the Board for an evidentiary hearing on August 13, 2009.  After testimony and evidence was received, the Board affirmed the interpretation of the City’s zoning ordinance by the zoning, and ordered that Acevedo cease and desist all day care operations at the property and remove a ground sign on the property.  On September 23, 2009, Acevedo filed a certiorari action in Kenosha county circuit court which initially named only the City as defendant.  The City moved to dismiss Acevedo’s lawsuit on the basis that the action failed to state a claim for which relief could be granted; specifically, that Acevedo’s claim should have been against the Zoning Board of Appeals, which, the City contended, is a separate body politic.  The City further asserted that the City was not a proper party to the action.  After the City filed its motion to dismiss, Acevedo amended her complaint to add the Board as a defendant.  The circuit court granted the City’s motion to dismiss.  Acevedo appealed the circuit court’s order to the Wisconsin Court of Appeals. 

The issue on appeal was whether the City is the proper party for a writ of certiorari challenging a decision of the Board.  The City contended that Acevedo’s request for a writ of certiorari, which by law is a request to compel action from a public body, cannot in fact compel any action from the City; i.e., that the City has no authority over the actions of the Zoning Board of Appeals.  After reviewing several prior cases raised by Acevedo, and the language of Wis. Stat. §§ 62.23(7)(e)10 and 68.13(1) the Court of Appeals sided with the city.  The language of § 62.23 “clearly and unambiguously conveys that the mechanism for an appeal of a board of appeals decision is an action in certiorari for review of the board’s decision.”  Likewise, § 68.13(1) conveys that the decision maker, i.e., the board, is the properly named party on certification, noting “why else would the court be instructed to ‘remand to the decision maker’?”

The Court of Appeals found that its interpretation of these statutes “is in harmony with the rule that the writ of certiorari must go to the board or body whose acts are to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject matter or the persons composing the board.”

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