Subdivision is a local, often subjective, decision

by: Sarah L.C. Runkel

Bussanmas v. Des Moines
(Iowa Court of Appeals, July 18, 2018)

In 2015, Nicholas Bussanmas purchased a 2.34 acre lot zoned in a residential district in Des Moines, IA with the intention of subdividing the land for development. In April 2016, the City Plan and Zoning Commission recommended denying the proposal of the three-lot plat based largely on objections from neighbors that the lot served as a natural watershed. The Des Moines City Council denied the subdivision request in June finding principally that subdivision of the land may have negative effects on stormwater flow in the neighborhood.

Bussanmas appealed the decision to district court and then to the Iowa Court of Appeals. The Iowa Court of Appeals confirmed the decision of the district court, agreeing that the Des Moines City Council presented reasonable evidence that the property should not be subdivided according to Iowa Code Section 354.8 and Des Moines Municipal Code’s subdivision regulations.

The Court of Appeals concluded that:

“The Council clearly considered all of the relevant evidence and balanced that evidence as required by section 354.8(1), including the interests of Bussanmas, the neighbors, and the City, and it determined Bussanmas’s preliminary plat must be rejected. We agree with the district court that there is sufficient evidence to support the Council’s decision to reject the preliminary plat.”

According to Iowa Code Section 354.8, governing bodies shall review proposed subdivisions based on reasonable standards and applicable ordinances. Approval of a proposed subdivision is contingent upon the proposal’s conformity to the comprehensive plan, a balance between the proprietor, future use, and the public interest.

Subdivision is a process delegated to local governments. The decision for approval or denial should be based on reasonable evidence and evaluated by the standards in the comprehensive plan and local ordinances. This leaves the scope of influencing factors open to the reasonable interpretation of the local elected body.

Provision in subdivision ordinance requiring neighbor approval held to be valid

by Andrea Vaage

Counceller v City of Columbus Plan Commission
Indiana Court of Appeals, August 19, 2015

John Counceller owned a 3.26 acre lot in Indian Hills Estates in Columbus, Indiana. He had previously submitted three applications between 1999 and 2013 to subdivide his lot into two lots, which he either withdrew or let expire upon approval. In 2014, Counceller submitted a fourth application to subdivide his lot into a total of three lots. After the Plat Committee granted primary approval to the request, Counceller’s neighbors submitted an appeal.

Section 16.24.225 of Columbus’s subdivision control ordinance requires approval of 75% of neighboring property owners for the further subdivision of a lot. Almost all of Counceller’s neighbors objected to the application. Due to this objection, the Commission decided to deny the application. Counceller claimed the City should be estopped from applying the 75% approval rule. The trial court denied this petition.

One of the elements that must be met in an estopppel case is that the petitioner had a lack of knowledge and of the means of knowledge as to the facts in question. Counceller argued that he was not informed of the 75% requirement by the City in any of his previous applications; however, Indiana caselaw is clear that “property owners are charged with knowledge of ordinances that affect their property.”  As a general rule, equitable estoppel will not be applied against governmental authorities in those cases where the party claiming to have been ignorant of the facts had access to the correct information.  The City did not withhold the means for Counceller to become aware of the ordinance.

Counceller admitted that no City officials implied that this regulation would not be applied to his application. Counceller instead argued that because this regulation was not enforced in the other three applications it should not be enforced in the fourth. However, none of his other applications made it to the point where this requirement might arise. Furthermore, the fourth application is different from the previous three in that the application proposes the property be subdivided into three lots instead of two.

Counceller also asserted the City, by adopting the 75% rule, improperly abdicated its responsibility to exercise exclusive control of the subdivision of land to Counceller’s neighbors. While it is true that similar provisions have been held to be a violation of due process, the Court of Appeals found that the 75% rule in the Columbus ordinance did not give unrestricted power to the neighbors. Section 16.24.225 allows for a waiver to be obtained if the Commission “finds that the proposed change will not have a significant impact on the existing subdivision.” Counceller never requested this waiver in his application, nor did he ever choose to request the waiver when given additional opportunities.

The Court found Counceller had the means to learn of the 75% requirement, and the opportunity to request a waiver. The judgment of the trial court is affirmed.

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.

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