Des Moines Board of Adjustment substantially complied with the law in granting setback exception

by Eric Christianson

Graziano v. Des Moines Board of Adjustment
(Iowa Court of Appeals, November 8, 2017)

Cecelia Kent purchased a previously undeveloped lot in Des Moines with the intent of building a single family home. However the winding road and a thirty-foot easement for a public storm sewer running diagonally across the back of the lot complicated Kent’s plans. On November 14, 2015, Kent appealed to the Des Moines Zoning Board of Adjustment for an exception to the district’s fifty-foot front yard setback, allowing her to build a house with a front yard setback of just thirty feet. She also asked the board for a variance to the setback required for a parking lot and an exception to the side yard setback.

The board denied the variance and the side yard set back, but voted to approve the exception to the front yard setback.

Kent’s neighbor Craig Graziano challenged the board’s action on two grounds:

(1) the board failed to make required written findings
(2) substantial evidence does not support the grant of an exception.

As quasi-judicial bodies, boards of adjustment are required to make written findings of all facts present. The intent of these is “to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.” In this case, the court of appeals determined that the staff report as well as the minutes of the discussion during the meeting was sufficient to allow the court to determine the factual basis and legal principles upon which the board acted.

 The criteria that the board is required to consider in granting an exception is detailed in Des Moines City Code:

1. (a) Such exception does not exceed [fifty] percent of the particular limitation or number in question . . .
2. The exception relates entirely to a use classified by applicable district regulations as either a principal permitted use, a permitted accessory use, or a permitted sign, or to off-street parking or loading areas accessory to such a permitted use;
3. The exception is reasonably necessary due to practical difficulties related to the land in question;
4. Such practical difficulties cannot be overcome by any feasible alternative means other than an exception; and
5. The exception is in harmony with the essential character of the neighborhood of the land in question.

Graziano challenged that the board had failed to show to show that there was no “feasible alternative” to granting the exemption  and that the reduced setback would be “in harmony with the essential character of the neighborhood.”

With regards to feasible alternatives, the meeting minutes show that the board of adjustment did discuss the possibility of moving the easement as well as to whether a smaller reduction to the setback might be adequate. Although this reasoning was not included in the final written findings, the court found this to be adequate to support the fact that the board “substantially complied” with the mandate to consider feasible alternatives.

Graziano also challenged that by not including expert testimony on the effect that this exemption may have on neighboring property values, the board failed to show that the setback would be “in harmony with the essential character of the neighborhood.” The court found that expert testimony is not required citing an earlier case which found:

[T]he board may rely upon “commonsense inferences from evidence relating to other issues, such as use and enjoyment, crime, safety welfare, and aesthetics, to make a judgment as to whether the proposed use would substantially diminish or impair property values in the area.”

The court affirmed the district court’s ruling upholding the exception granted to Kent.

No need to make specific finding that building qualified as accessory building when granting special exception

by Hannah Dankbar

Hasanoglu v Town of Mukwonago and Town of Mukwonago Plan Commission
Wisconsin Court of Appeals, October 14, 2015

The Hasanoglus appealed a circuit court decision upholding a decision of the Town of Mukwonago Plan Commission to grant a special exemption to the Hollerns to build an accessory building on their property. The Hasanoglus argue that the Plan Commission does not have jurisdiction to grant this exception and that the exception was arbitrary and unreasonable.

The Hollerns applied for a zoning permit to build a riding arena on their property in rural Mukwonago. Mukwonago determined that the arena would be in “substantial compliance” with the town ordinances, except for the height and square footage of the building. The Plan Commission met and approved the proposal by granting a exception to the zoning ordinance. Their neighbors, the Hasanoglus, filed a certiorari action which sustained the decision.

On appeal, the Hasanoglus argued that according to the Town of Mukwonago Municipal Code §82-25(a)(2)(b)(2) the Town Board could grant this exception, but the Plan Commission does not have jurisdiction to do so in this case. While it is true that this section of the code gives this power to the Town Board, a different part of the code gives the same power to the Plan Commission (Town of Mukwonago Municipal Code §82-25(b)(3)). The court determined that §82-25(b)(3) is the appropriate subsection because there was no finding of a rural accessory building on the Hollerns’ property as is required by §82-25(a)(2)(b)(2).

Next, the Hasanoglus argued that: (1) the Hollerns did not follow the correct procedure to apply for the special exception; (2) that the Plan Commission agenda was not specific enough to give notice of the Hollerns’ request; and (3) the Plan Commission did not conduct a sufficient inquiry into whether the proposed riding arena qualified as an accessory building.

First, the question of whether the Hollerns followed the correct procedure was not raised in circuit court and the section of the municipal code that the Hasanoglus cite is only for property owners seeking exceptions for setbacks. This argument was not considered on appeal.

Second, the Plan Commission’s agenda states, “ACCESSORY BUILDING HEIGHT AND SIZE INCREASE FOR S64W27645 RIVER ROAD, MICHAEL AND LAURA HOLLERN PROPERTY OWNER.” The minutes show approval of the request. The Plan Commission is not obligated to be any more specific than that.

Lastly, The Plan Commission is not required to record a specific discussion and determination in its minutes that a building qualifies as an accessory structure.  The Plan Commission placed multiple conditions on the approval of the exception (an example being that there can be no commercial use) which demonstrated that it considered the issue and exercised its judgment.

These arguments failed, so the decision was upheld.

Issue preclusion can be applied to bar zoning board proceedings, but applicants for 1998 and 2011 special exceptions were different

by Gary Taylor

Prybil Family Investments, Ltd., v. Board of Adjustment of Iowa City
(Iowa Court of Appeals, September 5, 2013)

In July 2011 Streb Construction Company filed an application for a special exception to operate a wet batch concrete plant on land zoned “General Industrial”  in the Scott-Six Industrial Park in Iowa City.  After a public hearing the Iowa City Board of Adjustment (Board) approved the special exception in September 2011.

Prybil Family Investments owns agricultural property adjacent to the land in question.  The land has been used for farming, and will continue to be for the forseeable future. Prybil filed a writ of certiorari to contest the Board’s decision.  Prybil’s main argument was that the same property owner filed an application for a special use permit to operate a cement plant on the same property in 1998, and was denied.  Therefore the doctrine of issue preclusion prevented the Board from considering the 2011 application (issue preclusion prevents the same issue from being reconsidered again in a later proceeding).  Alternatively, Prybil argued that the Board’s decision was not supported by substantial evidence. The district court disagreed on both claims and allowed the permit to stand.  Prybil appealed to the Iowa Court of Appeals.

The Court of Appeals began by noting that Iowa case law has never addressed whether the concept of issue preclusion applies to zoning board determinations.  It did acknowledge that in Johnston v. Christenson, the Iowa Supreme Court stated that “an administrative adjudication by an entity such as the board of adjustment can have a preclusive effect in a judicial proceeding..”  It also referenced Am. Jur. 2d, Zoning and Planning, which states that “res judicata (a concept that encompasses issue preclusion) applies to administrative zoning decisions in order to promote finality of decisions unless it is shown that there has been a substantial change of circumstances since the earlier ruling.” The Court, therefore, determined that issue preclusion can be applied to bar a second application for a special exception if the following elements, cited in Johnston v. Christenson, are met: (1) the issue must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made in the prior action must have been essential and necessary to the resulting judgment.” “However,” the Court noted, “if there has been a substantial change of circumstances” the concept will not apply.

Before beginning its analysis of the four factors it cited, it determined that, in any event, Prybil’s issue preclusion claim failed because the applicant for the 2011 special exception was not the same as the applicant for the 1998 special exception. Even though “Streb Construction Company” applied for the 2011 permit, and “A.F. Streb” applied for the 1998 permit the Court concluded that “Prybil presented no evidence showing that the parties were identical or [in close legal relation].”  The Court went on, however, to note that Prybi’s claim would also fail on the Christenson factors.  The mobile wet batch plant desired in 2011 incorporates improved environmental protections.  The 2011 and 1998 applications were for different lots in the Industrial Park.

After a lengthy discussion about what issues related to the substantial evidence claim were properly preserved for appeal by Prybil, the Court addressed the substantial evidence claim itself.  Prybil contended that the dust pollution from the plant will interfere with Prybil’s use an enjoyment of its property by damaging crops, but the Court did not disagree with the Board’s conclusion that conditions attached to the special exception – requiring Streb to pave the surrounding roads and plant trees to act as a screen from adjacent properties – were sufficient to satisfy the concern.  Prybil also contended that its property values would be diminished by the plant, but the Court again found sufficient evidence to support the Board’s conclusion that there were no Heavy Industrial zones in Iowa City where the plant could locate by right and any opinions on effect on future property values were merely speculative.  Although Prybil offered contrary testimony from two realtors, the Court said that the information presented at the hearing was sufficient to support the Board’s decision.

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