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.

Greyhounds are dogs “normally associated with domestic enjoyment” under Dubuque County zoning code

by Gary Taylor

Zenner v. Dubuque County Board of Adjustment
(Iowa Court of Appeals, October 3, 2012)

In July 2003 when the Zenners planned to purchase property in Dubuque County, they requested a variance from the 500-foot setback requirement for kennels. They wanted to build the kennels with a 200-foot setback from the surrounding residences.  After consulting with the county attorney, the Dubuque County Zoning Administrator advised the Zenners that the Kennel would not be allowed in the A-1, Agriculture district.  The district allows kennels, except that “no kennel shall be allowed to harbor, breed, train, buy, sell, exchange or offer for sale any animal to be used solely for attack purposes nor any animal not normally associated with domestic enjoyment.”  The ordinance also lists examples of the types of animals prohibited: “Such ban shall include but shall not be limited to jungle cats, venomous snakes or other reptiles larger than four feet in length, pit bulls, coyotes, wolves, foxes, skunks, deer or other similar wild animals.”  Undaunted, the Zenners went ahead with their plans, purchased the property, and built a kennel that violated the setback requirements for kennels.  Learning of this, the zoning administrator notified the Zenners that they were in violation of the ordinance.  The Zenners appealed the violation to the Dubuque County Zoning Board of Adjustment, which upheld the zoning administrator’s violation.  The district court upheld the decision. An appeal to the Iowa Court of Appeals resulted.

Starting its analysis by noting that a court “construes zoning restrictions strictly in order to favor the free use of property,” the Court of Appeals concluded that the county attorney misinterpreted the county’s zoning ordinance.  The county attorney based his conclusion that the kennel was raising greyhounds  “not normally associated with domestic enjoyment” on the fact that the dogs were for commercial sale. However, the Court pointed out that the zoning ordinance identifies another type of kennel – “kennel, hobby” – that does not include commercial activity or breeding or sale for a consideration.  The implication is that use of the word “kennel” by itself could not be meant to exclude commercial kennels.  “Following the county attorney’s analysis could lead to a determination that any kennel raising dogs for show instead of as pets would not be permitted because it would be ‘a non-exempt commercial use.'”

To further support this conclusion the Court pointed to the existence of Iowa Code 99D.27 – which requires dog tracks to maintain a racing dog adoption program – as “evidence public policy and law in Iowa considers greyhounds to be normally associated with domestic enjoyment.”  The Court also noted that the only dog listed in the banned animals is “pit bull.”  According to the Court greyhounds “possess [none] of the characteristics associated with the litany of prohibited animals.”

The Court of Appeals found in favor of the Zenners, reversing the district court.

Minn. shoreland zoning variance requirement of unnecessary hardship still applies to requests for area variances

by Victoria Heldt

Ed Mutsch, et al. v. The County of Hubbard, et al., Daniel J. Rehkamp, et al.
(Minnesota Court of Appeals, April 30, 2012)

The Rehkamps own property on Fifth Crow Wing Lake in Hubbard County (County) that is operated as a resort.  The property includes 11 boat slips.  In November 2009 the Rehkamps applied for a conditional use permit (CUP) to convert the resort into a residential planned unit development (PUD).  The request was heard by the County Planning Commission, the Zoning Board of Adjustment (ZBA), and the County Board of Commissioners.  The Board of Commissioners initially approved the CUP with three permanent boat slips and one access dock, per the County’s Shoreland Ordinance.  It recommended that the Rehkamps apply to the ZBA for a variance in order to retain all 11 boat slips.  The Rehkamps did so and were granted a variance.  The entire plan was approved by all necessary boards in April 2010.  Days after approval, Ed Mutsch (a resident on Fifth Crow Wing Lake) filed a complaint challenging the issuance of the variance.  The district court reversed the granting of the variance, concluding that the ZBA’s decision was arbitrary, capricious, and not according to law since it did not consider all the factors required by law.  This consolidated appeal followed.

On appeal, the Rehkamps first argued that Mutsch lacked standing to appeal the ZBA’s actions because he did not participate in the hearings and meetings regarding the variance.  The Court dismissed this argument, noting that Minnesota statute grants the right to appeal a ZBA decision to any aggrieved person without any requirements to participate in initial proceedings.  Since Mutsch is a property owner on Fifth Crow Wing Lake and evidence shows his property value will likely decline as a result of the additional boat slips, he qualifies as an “aggrieved person.”

The second issue questioned what type of zoning variance the ZBA granted since it was never specified during the trial.  Mutsch purported that it was a use variance, which requires a showing of “particular hardship” while the Rehkamps argued it was an area variance, which only requires a showing of “practical difficulties” according to the Minnesota Supreme Court’s opinion in In re Stadsvold (2010). The Rehkamps argued that Mutsch waived the argument that it was a use variance when the issue was not property raised in district court.  The Court agreed, and declined to address the question since it was not properly raised in initial proceedings.  Consequently the Court of Appeals analyzed the variance as an area variance.

Next, the Rehkamps and the County challenged the district court’s determination that the ZBA’s decision was arbitrary and capricious.  The district court concluded the decision was arbitrary because the ZBA failed to consider all of the required factors.  In regard to variances, there are two relevant guidelines for the Court to consider.  Section 1104 of the local Shoreland Ordinance provides a list of factors to consider and requires applicants to show an “unnecessary hardship” to receive a variance.  In addition, a list of factors provided in the Stadsvold opinion is applicable when determining whether an area variance is warranted.  The County first argued that, in light of the Stadsvold decision, section 1104 of the Shoreland Ordinance (unnecessary hardship) no longer applies to area variances in the shoreland zoning area, but rather the “practical difficulties” test solely should be applied.  The Court rejected this argument, ruling that the Stadsvold opinion did not render section 1104 of the Shoreland Ordinance inapplicable to area variances requested on land to which shoreland zoning applies.

The Rehkamps next argued that the BOA “melded” the factors in the Stadsvold opinion with the factors in section 1104.  The ZBA was required to “articulate the reasons for its ultimate decision, with specific reference to relevant provisions of its zoning ordinance.”  The ZBA used a worksheet addressing each of the six Stadsvold factors (practical difficulties) when making its decision.  The Court concluded that, since those six factors are not the same as the factors listed in section 1104, it did not “sufficiently articulate its reasons for ruling that the section 1104 factors (unnecessary hardship) were satisfied.”  It found the ZBA’s decision to be premature, not necessarily arbitrary and capricious.  It therefore remanded that portion of the decision to the ZBA for further consideration of the section 1104 standards.

The Rehkamps’ last argument was that the district court erred when it determined that not all of the ZBA’s findings in regards to the Stadsvold factors (practical difficulties) were supported by the record.  The Court reviewed the evidence that supported each of the ZBA’s findings and found each to be supported by the record.  It therefore reversed that part of the district court decision which found that the ZBA’s decision regarding the Stadsvold factors were not met.

“Substantially similar” new construction in floodplain is not the same as elevating existing structure authorized by permit

by Victoria Heldt

Delbert E. Johnson and Nancy L. Johnson v. Pierce County Zoning Board of Adjustment
(Wisconsin Court of Appeals, March 6, 2012)

The Johnsons own a piece of property that abuts the Mississippi River in Pierce County, Wisconsin.  It is undisputed that the area is a floodplain and, therefore, the Johnsons’ mobile home, screened-in porch, and deck are nonconforming uses under Pierce County’s zoning ordinances.  In April 2010 James Kleinhans (the county zoning administrator) issued the Johnsons a land use permit to floodproof the existing structures on the property.  The permit consisted of the application, a materials list, and a hand-drawn plan of the project.  The plan ordered for the elevation of all three structures onto a new concrete foundation.

In June 2010, Kleinhans observed that the Johnsons’ construction did not conform to the plan.  The screen porch was still sitting on the ground and a new structure had essentially been built where the mobile home previously sat.  It did not resemble the preexisting mobile home or deck so Kleinhans rescinded the permit and issued a stop work order.  The Johnsons appealed the decision to the Pierce County Zoning Board of Adjustment (Board) arguing that the construction did not violate the permit.  They testified that the preexisting mobile home had been destroyed by a flood before the permit was issued, so they could not elevate it in its ruined state.  They also claimed that Kleinhans was aware that the Johnsons did not plan to elevate the entire structure when he issued the permit.  They stated they tried to incorporate as much of the old structure as possible (windows, siding, paneling) in reconstruction.  Kleinhans responded by saying that if he had known the Johnsons were not elevating the existing structure in its previous state he would not have issued the permit.  The Board concluded that the Johnsons used the permit to construct a “substantially different building” and upheld the revocation of the permit.  The circuit court affirmed the Board’s decision.  The Johnsons appealed.

The Johnsons argued several points.  First, the Johnsons contended that the Board proceeded on an incorrect theory of law.  They argued that the county’s zoning ordinance does not comply with Wis. Stat. §§ 59.69 and 59.692.  The Johnsons argued that specifically ch. 238 of the Pierce County zoning code conflicts with the previously mentioned Wis. Stat.  The Court pointed out, however, that the Johnsons relied on language within that section of the zoning code to support their argument later in the appeal.  The Johnsons may not argue that a part of the zoning code conflicts with statute while simultaneously relying on the code for their argument.  The Court noted further that the Johnsons did not make this claim before the Board and therefore forfeited the right to raise the argument on appeal.

The Johnsons argued that the structure they built was “substantially similar” to the original structure and, therefore, was not a violation of the permit.  The Court ruled that, since the Johnsons provided no legal authority for the notion that a “substantially similar” structure is allowable under a permit, it would not consider the argument.  The Court concluded that the Board did not act on an incorrect theory of law.

The Johnsons claimed that the evidence presented did not support the Board’s conclusion.  To begin its analysis, the Court acknowledged that deference is given to an agency’s decision on appeal and that “the Board is the sole judge of the weight and credibility of the evidence presented.”  The Court found that the evidence presented did indeed support the Board’s decision.  The permit issued allowed the Johnsons to elevate the existing structures and observation showed that the Johnsons instead constructed a new structure.  Johnson confirmed that he did not elevate the previously existing structure because it was ruined.  He also failed to dispute that the new structure did not include the previous porch and deck or that the Johnsons were attempting to sell the porch.  Photographs were submitted in support of all these facts.

The Johnsons further argued that the Board improperly disregarded Johnson’s testimony in which he claimed that Kleinhans already knew of his plan to modify the structure.  The Court noted that the Board is the proper judge of witnesses’ credibility and that it apparently found Kleinhans’ testimony more credible.  The Johnsons also claimed that the Board could not rely on Kleinhans’ testimony because he was never sworn in.  The Court responded by stating that the rules of evidence do not apply in administrative procedures.  Furthermore, the letter sent to the Johnsons and the record of the permit provided sufficient evidence that the Johnsons’ activities did not comply with the permit.  The Johnsons finally argued that the materials list attached to the permit served as evidence that Kleinhans authorized the new construction.  The Court pointed to Kleinhans’ testimony in which he admitted that some new construction was allowed under the permit only because “the new foundation’s footprint was slightly larger than that of the existing structures.”  Nevertheless, the primary purpose of the permit was to allow floodproofing to existing structures.  The Court rejected the argument that the Board’s decision was unsupported by the evidence.

Finally, the Johnsons purported that the Board’s decision was arbitrary, oppressive, and unreasonable.  The Johnsons first support the argument by stating that the decision was based on an incorrect theory of law and was unsupported by the evidence.  The Court already rejected those arguments in previous sections.  The Johnsons also claim that the decision prevents them from using their property and renders the property useless.  The Court noted that the Johnsons did not provide any support for these claims and that the Johnsons never asserted these claims before the Board.  They also failed to explain why the alleged uselessness of their property should allow them to violate their permit.  The Court found that the Board appropriately considered the evidence and came to a reasonable conclusion.  It affirmed the Board’s revocation of the Johnson’s permit.

Consideration of photos only on remand, without testimony or arguments, did not violate due process

by Victoria Heldt

Russell Leffel and Paula Leffel v. City of Mission Hills, City of Mission Hills Board of Zoning Appeals
(Kansas Court of Appeals, February 6, 2012)

This appeal was submitted subsequent to a remand by the same Court.   The Leffels applied for a permit in July 2006 to construct a home on an empty lot they own in the City of Mission Hills.  The city’s architectural review board (ARB) initially approved the construction plans, but the City of Mission Hills Board of Zoning Appeals (BZA) reversed the approval.  On appeal by the Leffels, the trial court found that the BZA’s reliance on public opinion amounted to an impermissible plebiscite (i.e., that it amounted to a decision reached through direct vote of the public, rather than a decision by the BZA).  It also found the BZA’s comparison of the proposed structure to surrounding structures was unreasonable, and also that the BZA conducted an improper de novo review of the ARB’s decision.  Then on the city’s appeal of the trial court’s decision, this Court of Appeals affirmed the trial court’s decision regarding the plebiscite, but rejected the court’s other grounds for reversing the BZA’s decision.  It reversed the ruling in part and remanded the case to the trial court for it to be remanded to the BZA.

On remand, the BZA discussed the possible procedures to be undertaken on reconsideration of the proposal.  The BZA’s counsel recommended only a review of the record with no new evidence submitted.  Doug McKenna, the Leffel’s counsel, objected to that and requested an opportunity to submit new evidence.  The BZA’s chairman, Tom Roszak, expressed a desire to receive input from the ARB regarding the proposal’s conformance in style and size to surrounding structures.  It defined “surrounding structures” to be an area extending 500 feet from the proposal site.  The rest of the Board agreed and the matter was sent to the ARB for further review.

The ARB received 75 photos by city staff members of the homes within a 500 foot radius and asked each board member to review them for a quasi-judicial deliberative session in June 2009.  No arguments, testimonies, or evidence would be accepted except for the 75 photographs and board members’ personal observation of the area.  In July 2009 the ARB voted that the proposal did not conform to surrounding structures and passed this recommendation to the BZA.  The BZA affirmed its previous denial of the Leffel’s building application.  The Leffels appealed, but the trial court affirmed the BZA.  Leffels then appealed once again to the Court of Appeals.

On second appeal, the Court of Appeals looked at whether the BZA’s decision to affirm the denial of the Leffel’s permit was lawful and reasonable.   The Leffel’s first major argument was that the Court should not give deference to the BZA’s decision because it was not reasonable.  The BZA applied a standard of “good faith and fair play” rather than reasonableness when making the decision.  The Court dismissed this claim because it found “no principled reason to believe that a presumption of reasonableness does not encompass a presumption that the government officials acted fairly with good faith.”  It noted that the error in language was harmless because the Court conducts an independent review of the BZA’s conduct.  The Leffels next argued against giving deference to the BZA because the BZA’s initial decision was ruled illegal by the trial court in the first appeal, so the BZA lost its presumption of reasonableness.  The Court dismissed this claim because to so hold would contradict the limited role court’s have in zoning decisions.  It cited previous Kansas caselaw which warned the Court against substituting its decisions for those of public officials in regards to zoning matters.  The Leffels further argued that because the case was presented to the BZA in documents only that the court was in as good a position as the BZA to rule on the matter.  The Court rejected that claim, pointing out that most zoning decisions are made strictly on documentary evidence.

The Leffel’s second major claim was that the BZA decision did not comply with the Court of Appeals’ orders on remand in two ways.  First, the Leffels believed that the BZA took a “new look” at the case rather than reconsider it.  The Court began its analysis by noting that, absent specific instructions, a trial court has discretion in how to implement a remand.  The same goes for the BZA in this case since it was given the duty of reconsideration.  The Leffels took issue with the fact that the ARB accepted new photographs of the surrounding area.  The Court found it to be in compliance with the remand because one of the factors the BZA used to reverse the ARB’s recommendation was that it had improperly considered the proposal’s conformity with the surrounding structures.  Consequently, it was consistent with the remand to reconsider the conformance to surrounding structures.  Additionally, the Leffel’s counsel explicitly requested the BZA to send the case back to the ARB for reconsideration during the hearing.

Next the Leffels argued that the BZA failed to comply with the Court’s mandate by not addressing the extent to which the impermissible plebiscite affected its decision.  The Court clarified that it did not ask the BZA to determine the effect of the plebiscite, but rather asked it to reconsider its opinion without it.  The BZA did this when it (and the ARB) disregarded  public opinion regarding the proposal and reconsidered the matter based on the proposed home’s conformance to surrounding structures, without listening to arguments, or taking testimony or other evidence.

The Leffel’s third and final claim contended that the reconsideration process violated due process.  The Court found that this argument was poorly constructed and that the Leffels failed to show how their due process rights were violated.  They tried to argue that the submission of the 75 photographs was new evidence that the Leffels were not given due opportunity to challenge or respond to.  The Court ruled that it was not new evidence, only reconsideration with a redefinition of scope.  Any effects of the photographs were neutralized by the fact that each ARB board member personally visited the site uninfluenced by either party.  The remainder of the Leffel’s arguments were poorly articulated and the Court dismissed them.  The Court affirmed the trial court’s decision.

Missouri Court of Appeals addresses neighbor’s standing in zoning board litigation

by Gary Taylor

Underwood v. St. Joseph (MO) Board of Zoning Adjustment; Sharon Kennedy (Appellant)
(Missouri Court of Appeals, January 17, 2012)

Underwood submitted construction plans to the city of St. Joseph to obtain a building permit for a detached garage measuring 1,328 square feet. The city approved the plan and issued a building permit. Approximately three months later, however, when the structure was 80% complete, the city received an anonymous complaint about the garage and issued a stop work order because the garage actually measured 1,427 square feet. In fact, the city zoning ordinance limits the size of a detached garage to “an area no greater than 30% of the rear yard area behind the principal structure” which, based on the size of Underwood’s yard, meant that the garage could be no larger than 1,035 square feet. The city advised Underwood to either obtain a demolition permit or seek an area variance from the city board of zoning adjustment (BZA). Underwood chose the variance route.

In response to Underwood’s variance request, the city mailed certified letters to adjacent landowners (including Kennedy) notifying them of the BZA hearing on the variance request. Prior to the hearing the city acknowledged that it erroneously issued the building permit for the 1,328-square-foot design and offered to pay 76% of Underwood’s cost to downsize the garage (the portion of excessive square footage attributable to the city’s error). Also prior to the hearing the BZA received written comments from three adjacent landowners regarding Underwood’s requested variance. One of the comments was from Kennedy, expressing her opposition to the variance based upon her concern that “the garage does not fit the character of the neighborhood due to its size and construction material.” and that it “may adversely affect property values in the neighborhood.” At the BZA hearing, however, no one appeared to testify in opposition to the variance request. Nonetheless, the BZA denied the variance. Underwood filed an appeal of the denial with the circuit court. Underwood was identified as “petitioner,” and the BZA and City were identified as “respondents.” On April 4, 2011, the circuit court entered a judgment reversing the BZA’s denial of the variance and remanding the case with orders that the variance request be granted. At a second BZA hearing held May 3, 2011, the city recommended that the BZA adopt the circuit court’s findings of fact and conclusions of law. Kennedy appeared at this second hearing and argued against granting the variance request based upon her previously stated reasons. At the second hearing, the BZA adopted the circuit court’s findings and granted the variance. One week later, Kennedy filed a notice of appeal in the Missouri Court of Appeals challenging the circuit court’s judgment.

The Court of Appeals determined that Kennedy lacked standing to bring the appeal before the Court of Appeals because Missouri statute limits the right to appeal to “any party” aggrieved by a decision of a circuit court, and Kennedy was not a party to the proceedings before the circuit court.  Kennedy cited two reasons why the statute should not be followed; first, that the Missouri Administrative Procedures Act allows any person “aggrieved by a decision in a contested case” to appeal and that, as a result, she was not required to be a party to the circuit court litigation.  The court rejected this argument because the zoning enabling statutes contemplate a different process that makes this provision of the Administrative Procedures Act inapplicable. Second, Kennedy argued that when the city chose not to appeal the circuit court’s decision, standing transferred to those for whom the city was acting in a representative capacity; i.e., those like Kennedy who would be aggrieved by the decision. The court rejected this argument as well, stating that state law allows aggrieved persons to formally intervene in litigation when their interests are at stake.   Kennedy countered by pointing to Missouri caselaw that suggests that neighboring landowners do not have a right to intervene in circuit court proceedings stemming from BZA matters (because, in her interpretation, the BZA is adequately representing the interests of the neighbors).  The court rejected her interpretation of those cases, and pointed to other Missouri cases, including the dissent of a case where intervention was denied, that imply that a landowner may indeed be able to intervene in a BZA case at the circuit court level if the motion to intervene is timely.

The Court of Appeals dismissed Kennedy’s appeal for lack of standing.

Board of Adjustment established record sufficient to support denial of conditional use permit

by Gary Taylor

A-Line Iron & Metals, Inc. v. City of Cedar Rapids Zoning Board of Adjustment
(Iowa Court of Appeals, November 10, 2010)

A-Line Iron & Metals, Inc. filed a petition for a conditional use permit with the city of Cedar Rapids, seeking to operate a business to recycle scrap metal and iron (meeting the definition of “salvage yard” under the city’s zoning code).  The location was zoned I-2, “General Industrial Zone.” Salvage yards seeking to locate in I-2 must receive a conditional use permit, and the request must go through the city planning commission for review and recommendation prior to being heard by the zoning board of adjustment (ZBA).
 
The city’s Community Development department prepared a staff report for the planning commission recommending that the petition could be approved if certain conditions were fulfilled. The report found the requested conditional use was in accord with the future land use designation for the site. The planning commission recommended approval, subject to certain conditions.

Prior to the ZBA hearing, twenty-seven written complaints from nearby property owners were filed with the ZBA.  These written complaints, and the complaints voiced at the hearing, generally revolved around concerns over noise and increased truck traffic.  The attorney for a nearby radio station pointed out that on the future land use map the property was designated “commercial/industrial,” and salvage yards were not permitted in this category.  When asked about this issue at the ZBA hearing the city planner acknowledged the proposed use was not in accord with the future land use map, but expressed the opinion that “when the future land use map was drafted it was an oversight by the technical committee as it should have been shown as general industrial because that’s exactly what the property is for.”

The ZBA denied the conditional use permit.  No written findings of fact were filed by the ZBA; however, extensive minutes were recorded and approved.  In the minutes was a nearly-verbatim comment by the vice chair of the ZBA:

I . . . welcome new employees and new businesses to Cedar Rapids. This is very complicated and a lot of objectors so I went to the book, there is no question that in this district you have the right to apply for a conditional use of a salvage yard . . . . However, I would go to what I would call the three Cs. As I go back into the book here and look at the three Cs it was pointed out that I would just call them consistency, or consistent character, and compatible and as I look at this and as much as I would like to see a new business and new employees, I would say in my opinion we don’t have consistency with the land use. We are out of character for the neighborhood and being out of character it lacks the compatibility that I would like see . . . .  

A-Line filed a petition with the district court.  The district court found the minutes, the transcript of the hearing, and the documents presented at the hearing provided sufficient record to review the ZBA decision.  The district court found the reference to the “three C’s of consistency, character, and compatibility” were clearly a reference to the section of the city’s municipal code that sets forth criteria for approving conditional use permits.  The court determined that the ZBA had considered each of the standards in the code, even though each standard was not specifically discussed.  The court concluded there was substantial evidence in the record to support the ZBA decision.  A-Line appealed the district court decision to the court of appeals.

The court of appeals began by reciting the following principles found in Iowa caselaw regarding the need for ZBAs to develop adequate records of their proceedings:

  • Boards of adjustment shall make written findings of fact on all issues presented in any adjudicatory proceeding.
  • It is sufficient if a board substantially complies with this requirement.
  • There is substantial compliance if the rule has been followed “sufficiently so as to carry out the intent for which it was adopted,” which is “to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.”
  • The reviewing court may determine substantial compliance by considering the board’s decision in the context of the meeting where the vote was taken as well as the views expressed by board members during the meeting.

The court of appeals concluded that the ZBA’s findings were sufficiently recorded so as to permit a court to review those findings. The minutes of the meeting and the transcript from the meeting clearly showed the ZBA denied the petition because the intended use of the property was not consistent with the use of nearby property, did not match the character of the neighborhood, and was not compatible with surrounding property. After the city planner advised the ZBA that the conditional use was not consistent with the future land use map, albeit due to an oversight, the vice chair of the ZBA commented that “in my opinion we don’t have consistency with the land use . . . are out of character for the neighborhood, and . . . it lacks compatibility.” The ZBA then proceeded to vote to deny A-Line’s conditional use application.

A-Line asserted the record did not support the denial because it showed that the ZBA addressed only three of the seven standards required for granting a conditional use permit.  The court of appeals pointed out that under the city’s code a conditional use permit can only be granted if all seven of the standards are met, and concluded that the ZBA considered the standards sufficiently to determine that three (those addressing consistency, character, and compatibility) were not met. Thus, addressing the other four standards would be unnecessary.

Finally, A-Line contended that the objectors raised only “generalized, unsubstantiated and speculative concerns that could not rise to the level of substantial evidence.” Noting that expert testimony is generally not required, and a ZBA may rely on anecdotal reports and “commonsense inferences drawn from evidence relating to other issues such as use and enjoyment, crime safety, welfare, and aesthetics to make a judgment,” the court of appeals concluded that substantial evidence existed to support the conclusion that the proposed use would not be consistent with the intent and purpose of the future land use policy plan.

Board of adjustment given substantial latitude in interpreting county ordinance

by Allison Arends

James C. Rule v. Iowa County Board of Adjustment
(Wisconsin Court of Appeals, March 18, 2010)

James Rule owned two parcels of land in the Town (township) of Dodgeville Iowa County, both of which were zoned A-1, Exclusive Agricultural. Quarrying operations are allowed in A-1 with a conditional use permit.  Rule operated a quarry operation on one of the parcels of land and planned to extend his operation to his adjacent property, but was required to first apply for a conditional use permit in order to begin mining. Before applying, Rule sought to determine whether the Board would waive one of the Iowa County Zoning ordinance provisions which stated, “active mining shall not take place within five hundred feet of any residential district or any structure used for dwelling purposes.”

Rule filed an application with the Board requesting a variance that allowed mining at least 200 feet from the residential district boundary or 500 feet from a residential dwelling. Rule’s interpretation of the ordinance was that the active mining had to be at least 500 feet from either the residential district boundary or a dwelling. Neighboring property owners objected to Rules application for two reasons, (1) the variance requested was a use variance, not an area variance, which the Board does not have authority to grant and (2) the ordinance dictates that active mining must be at least 500 feet from the boundary line of a residential district and not from the dwellings within the district.

At the hearing, the Board heard position statements from both parties as well as a legal opinion from the Iowa County attorney. The attorney concluded Rule’s petition to be for a use variance and therefore, in his opinion, the Board did not have authority to grant the permit. The attorney also noted that active mining, under the ordinance, must be a minimum of 500 feet from a residential district boundary line, not the dwellings within that district. Based on the attorney’s opinion the Board voted, “to deny the application for non-metallic mining within 500 feet of the residential district.” The circuit court affirmed the Board’s decision.

On appeal, Rule contested the Board and circuit court’s decisions that he sought a use variance instead of an area variance, and their construction of the 500-foot requirement. Rule argued that he was seeking an area variance because he was looking to only modify the “area restriction” created by the condition (4)(b) of the AB-1 subsection. The court first evaluated how much deference a county board of adjustment’s has in the interpretation of a county ordinance, and concluded that the board’s construction of the ordinance is lawful if it is reasonable and there is not a more reasonable interpretation.

In order to determine whether the Board erred in identifying Rule’s petition as a use variance, the court looked to the distinction between the two types of variances:

“A use variance is one that permits a use other than that prescribed by the zoning ordinance in a particular district. An area variance … has no relationship to a change of use. It is primarily a grant to erect, alter, or use a structure for a permitted use in a manner other than that prescribed by the restrictions of a zoning ordinance. Area variances usually modify such features as setbacks, frontage requirements, height, or lot size”

Because a use variance has more of an impact on a community than an area variance, the standards for obtaining a use variance are higher, and the property owner must show that, “in absence of a variance, no reasonable or feasible use can be made of the property.” the court found the Board’s decision, which identified Rule’s requested variance as a use variance, to be reasonable because, “the 500-foot requirement was intended to protect the neighboring residential properties from the significant impact of a mining operation and that this purpose distinguishes it from restricting on building heights and set backs, which are typically the subject of area variances.”

In response to Rule’s second claim, the court found that the Board was reasonable in its construction of the ordinance, which recognized that active mining must be at least 500 feet away from a residential district boundary line or any dwelling which is not located within a residential boundary line. The court found Rule’s construction of the ordinance unreasonable because the obvious purpose of the ordinance is to protect neighboring residences from the disturbances of quarry operation. The court found that it is reasonable to ensure that all dwellings in a residential district, even those that are not yet built, are protected by a 500-foot buffer zone.

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