Update: Johnson County Re-Zoning Application Goes Viral

by Eric Christianson

The Johnson County Board of Supervisors voted 5-0 Thursday, September 14, 2017 to deny the rezoning of 63 acres from Agricultural to Agricultural Residential. The board’s primary reasoning was the potential impact of such a large rezoning in a rural part of the county and the impossibility of negotiating a conditional rezoning without approval of the current title-holder. The board encouraged another application after the applicant obtains full ownership of the property.

A video of the board meeting is available here, and read an updated Press Citizen article here.

The original post is below:

An Iowa City resident’s attempt to rezone 63 acres of rural Johnson County has attracted international attention. Grant Schultz manages a 143 acre farm he calls Versaland in northeastern Johnson County. He is seeking the zoning change to allow him to build rental cabins and worker housing in addition to other accessory uses. Staff recommended against the rezoning because of the potential impact of a large land use change in a rural part of the county and the infrastructural improvements that would be needed to support the potential new uses. On August 14 the planning and zoning commission voted 5-0 to recommend to the board of supervisors that the rezoning be denied.

In response on September 8, Schultz created a 25 minute video with the headline “Johnson County Assaults Local Foods“. The video has, as of today, been viewed over 80,000 times and received comments of support from all over the world.

Johnson County has since published a memo refuting many of the points made in the video.

Additionally, Paul Durrenberger and Suzan Erem, founders of the Sustainable Iowa Land Trust, and owners of the property in question have published a blog post of their own entitled, “Grant Schultz: Facts to Consider”. They are opposed to the proposed rezoning.

The Johnson County Board of Supervisors will vote on the rezoning request Thursday September 14, 2017.

For more information read the Press Citizen article about the fight.

Appellant in rezoning denial cannot turn appeal into inverse condemnation action

by Gary Taylor

Dahm v. Stark County Board of County Commissioners
(North Dakota Supreme Court, December 19, 2013)

Richard Dahm submitted an application to the County Board for a rezoning to change his property designation from agricultural to residential. Dahm also sought approval of a preliminary plat called Duck Creek Estates, a 99 lot residential subdivision to “provide a rural living environment in a quasi-urban setting . . . .” The land is two miles west of the Dickinson city limits, and located in between Interstate-94 to the north and Highway 10 to the south. The property is adjacent to a previously platted subdivision called Maryville Subdivision.  Two public hearings were held before the Planning and Zoning Commission. At the first hearing, the city/county planner recommended denial based on several alleged deficiencies, including: Dahm did not specify which residential district he wanted to rezone his property to; there was no contract with adjacent land owners ensuring access to Highway 10; the application did not indicate whether road and access widths would meet or exceed Stark County regulations; the application did not indicate what type of bridge would overpass Duck Creek; the application did not delineate the location of wetlands or flood plains or include a flood plain analysis and environmental study; development could result in “pinching” the water flow of Duck Creek; and no potable water was available at the site. The planner also found the application was inconsistent with the Stark County Comprehensive Plan.

Rather than making a formal recommendation to the County Board, the Zoning Commission continued the hearing to allow Dahm to revise his application. Dahm submitted additional information, including a letter responding to the deficiencies, a development narrative, an application package addendum, and proposed zoning maps. The Southwestern District Health Unit also submitted a letter stating that Dahm’s plans for a sewer system were satisfactory. Prior to the second public hearing, the city/county planner again recommended denying Dahm’s application based on several deficiencies, including: the lack of a traffic impact analysis; road access did not meet Stark County standards; the application did not include the location of wetlands and flood plains; the absence of a flood plain elevation study to ascertain whether the project met the requirements of the National Flood Insurance Program and state law; the absence of a field wetland delineation for use during U.S. Army Corps of Engineers 404 Permit Process; no potable water; and that the application was inconsistent with the Stark County Comprehensive Plan.

At the second public hearing, Dahm’s attorney stated that an adjacent landowner agreed to provide highway access, on the condition that the adjacent owner’s property could also be re-zoned. Dahm’s attorney also claimed traffic density would be about 925 vehicles per day. Members of the neighboring Maryville subdivision voiced their opposition to the application based on concern over traffic and dust control. The planner also spoke in opposition to the application. Members of the Planning and Zoning Commission reiterated their trepidation about traffic access points, increased traffic density, and the lack of a study concerning the wetlands and flood plains. Based on these concerns, the Zoning Commission voted 8-0 to recommend a denial of the zoning amendment request.  The County Board adopted the recommendation of the Zoning Commission and denied Dahm’s request by a vote of 5-0. In voting to deny the application the County Board also included a provision that Dahm could not appear before the County Board for six months.

Dahm appealed the County Board’s decision to the district court and also sought to introduce evidence of similar zoning requests that had been previously approved by the County Board. The court denied Dahm’s motion to submit additional evidence and affirmed the County Board’s decision to deny the application for zoning change.  Dahm appealed to the North Dakota Supreme Court.

The Court first noted that in framing its zoning decisions, the Zoning Committee and County Board looked to the Stark County Comprehensive Plan, a growth management policy amended in 2010 based on the county’s rapid growth in the agricultural and energy sectors. In its official recommendation, the Zoning Commission stated “there continues to be concerns with density, traffic, and sewer and water issues for residential development of the property.” Additionally, the Zoning Commission determined the application was inconsistent with at least four goals of the Comprehensive Plan related to compatibility of environmental characteristics of the site, adequacy of sewer and water services, the preservation of open spaces and natural resources, and the prohibition against locating development away from paved roads. The Court concluded that the procedure followed by the county “characterizes an exercise of discretion” that is “the product of a rational mental process by which the facts and the law relied upon are considered together . . . .”

Dahm also argued that when a subdivision plat addresses all issues listed in a county’s subdivision regulations it becomes the “mandatory duty” of the zoning authority to approve a subdivision plat.  The Court disagreed, stating that “The board shall consider all other relevant facts and determine whether the public interest will be served by the subdivision. . . . If it finds that the proposed plat does not make appropriate provisions, or that the public use and interest will not be served . . . then the board of county commissioners shall disapprove the proposed plat.”  The Zoning Commission and the County Board did take into account such factors as open spaces, drainage, streets, water supplies, and waste disposal, in addition to other considerations, in denying the application. Because it found Dahm’s application was at odds with the Comprehensive Plan, it was under no duty to approve the request.

Finally, Dahm argued the six-month restriction from appearing before the County Board was not only arbitrary, capricious, and unreasonable, it was also unconstitutional because a new ordinance (increasing minimum lot sizes from 7,000 square feet to 5 acres) was passed during the six-month prohibition period.  Because Dahm purchased the property in reliance on the original ordinance and subdivision regulations, the County Board’s denial deprived Dahm of all reasonable use of the property.  The Court stated that the moving party in a denial of a change in zoning request cannot turn his appeal into an inverse condemnation action, and declined to address Dahm’s claim of an unconstitutional taking of his property. It found that the decision to implement a six-month appearance restriction was also not arbitrary, capricious, or unreasonable.  The Board noted that Dahm had presented the Duck Creek Estates project three months in a row without adequately resolving the issues of roads, sewage, water, and population density. As the district court reasoned, “the time and effort expended by the Stark County Zoning Board, the City and County Planner, and by the Stark County Commission persuades the Court that there was no violation of Stark County’s authority and obligation to regulate land use . . . by their decision to impose the six month prohibition.” Given the repeated attempts to re-zone and the failure to make the requisite adjustments, it was not unreasonable for the County Board to implement a six-month wait period.

County’s actions did not constitute a taking: The continuing saga of Francis v. Bremer County

by Gary Taylor

J.D. Francis, Inc. v. Bremer County Board of Supervisors
(Iowa Court of Appeals, January 9, 2013)

Prior history of this case was discussed in this blog here.  The present case includes some interesting facts about the dispute not disclosed in the prior opinion from 2009, namely:

On June 20, 2006, Anhalt and Francis requested the land be rezoned to “R-1” single-family residential. The 34.5 acres had an average corn suitability rating (CSR) of 53.60, a rating that classified it as “prime” agricultural land that should be preserved for agricultural use under the Comprehensive Land Use Plan (CLUP). Following a public hearing, the Bremer County Planning and Zoning Commission unanimously recommended denial of the rezoning request….[and] the board of supervisors voted unanimously to deny the request, finding “that good agricultural farm land not be taken out of production and because of many other environmental concerns….The following day, Francis and Anhalt submitted a revised rezoning request, which excluded approximately four acres of productive farmland included in the original request. Excluding those acres dropped the CSR of the remaining 30.75 acres to 49.5. However, approximately half—or 15.46 acres—of that parcel had a CSR of fifty or higher….[On this request] the commission voted four to one to deny [and the] board of supervisors voted unanimously to deny.

More background.  In December 2009, after the Iowa Court of Appeals issued the decision linked above, the board of supervisors amended its CLUP to exclude planned residential developments on certain designated land. Francis’s property was included in this redesignation. Francis filed an action in the United States District Court for the Northern District of Iowa, alleging the board’s 2006 rezoning denials were an unconstitutional taking. He later amended his complaint to allege the December 2009 CLUP amendment was also an unconstitutional taking. The complaint was dismissed in March 2011 because the issue was not ripe for consideration; the court noted Francis had failed to seek compensation through state procedures by instituting an inverse condemnation action.

Present case.  On December 9, 2011, Francis filed the present case for inverse condemnation in state district court, alleging that the board’s denials of the rezoning request was arbitrary, and further that the CLUP amendment resulted in a taking of at least half of the value of the property in question without adequate compensation.  The court found the board was entitled to judgment as a matter of law because the board’s actions did not constitute a taking that requires compensation. Francis appealed.

The Court of Appeals first ruled that the doctrine of res judicata prevents J.D. Francis, Inc. from relitigating the issue of whether the board acted arbitrarily in denying its rezoning requests. The question of whether the board’s denial was arbitrary was litigated and decided by the district court when it granted summary judgment in favor of the board on Francis and Anhalt’s 2006 action. That ruling was later affirmed by the Court of Appeals.

As for the takings claim, the Court of Appeals observed that, unlike cases cited by Francis as supporting his claim, there was no rezoning that led to a diminution of value; rather, the board simply refused to rezone the land to increase its economic viability. Furthermore, the plaintiff purchased the land after the board denied both rezoning requests. Even the CLUP amendment, which occurred after purchase and limits the likelihood that the land will be rezoned to residential, does not amount to a taking. The property remains economically viable as agricultural land, just as it did prior to the plaintiff’s purchase. Under these circumstances, the Court of Appeals agreed with the district court’s finding that the board’s actions did not constitute a taking.

Wisconsin Town’s denial of rezoning request did not meet standard required by statute

by Allison Arends

Keith Johnson v. Washburn County and Town of Spooner
(Wisconsin Court of Appeals, February 17, 2010)

In Wisconsin, state law provides towns (townships) with a role in the county zoning process.  Under WIS. STAT. § 59.69(5)(e)3.  if a town affected by a proposed rezoning disapproves of the proposed amendment, the town board of the town may file a certified copy of the resolution adopted by the board disapproving of the petition with the [county zoning] agency before, at or within 10 days after the public hearing.

The Johnsons owned property in the Town of Spooner in Washburn County. In an attempt to rezone their property from forestry classification to planned unit development, the Johnsons filed a rezoning petition with Washburn County. The County zoning administrator sent a formal two page document to the town board requesting the town’s recommendation whether to approve or deny the petition (as required by Wisconsin law).  If the recommendation was to deny the petition, such denial must be made via a “certified copy of a resolution adopted by the town board” as required by WIS. STAT. 59.69(5)(e)6. The document provided spaces for the board to submit (1) their decision to recommend approval or denial of the petition (2) an explanation of that decision and (3) the signatures of the town chairman, supervisors, and clerk. The completed document was returned with only the word “denial” in the space for the recommendation and the signatures of the town chairman and two town supervisors, and countersigned by the town clerk. Although there was no indication of when or where the hearing was held, the town clerk dated the document July 10, 2007.

On September 18, 2007 the County approved the Johnson’s petition by adopting an amendatory ordinance over the Town’s denial. The Town responded by passing a formal resolution vetoing the County’s amended ordinance. As a result the zoning administrator notified the Johnson’s that their property would remain zoned forestry because the Town’s action, “effectively invalidated the ordinance amendment.”

The district court found,” the written submission to the zoning committee proper documentation of a town resolution disapproving the requested zoning change…” The Johnson’s appealed arguing that the July 10th denial did not constitute a certified copy of a resolution adopted by the town board, and that the vetoing of the County’s amendatory ordinance was irrelevant under WIS STAT 50.69(5)(e)6.

The question presented to the Court of Appeals was whether the form upon which the Town submitted its July 10 recommendation to the County constituted a certified copy of a resolution adopted by the town board under WIS. STAT. § 59.69(5)(e)3.  The Court of Appeals concluded that it did not.  “If the Town wished to object to the Johnsons’ petition, it was required to do so by passing a formal resolution, as it later did when disapproving the County’s amendatory ordinance.”  Although the legislature intended the town board “to serve as a political check on the otherwise unfettered discretion of the county board in wielding its legislative zoning power,” the town board performs its function as a political check only by certifying to the county that its denial was considered at a properly-noticed public meeting at which a resolution was introduced and carried.  Nothing in the record assures this occurred.

The court went on to note, “An amendatory ordinance is effective on passage if it makes only the change sought in the petition and if the petition was not approved by the town board pursuant to WIS STAT 59.69.” Therefore because the court found the town’s denial to be an improper resolution, the court decided that on remand, the circuit court would have to determine whether the amendatory ordinance complied with the requirements pursuant to WIS. STAT.59.69(5)(e)6.

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