HomeMy WebLinkAboutA001 - Legal Opinion dated December 9, 1994 � 4
t Ll CZ
AMES
CITY OF AMES
77 CITY ATTORNEY'S OFFICE P.O. BOX811 AMES IOWA 50010
Community-University-Opportunity 515 CLARK AVE.
PHONE 515-239-5146 A FAX 515-239-5142
December 9, 1994
The Honorable Larry R. Curtis, Mayor,
and Members of the City Council
of the City of Ames, Iowa
Re: Legalities of Zoning and Building Moratoria
Dear Mayor Curtis and Council Members:
This is in response to a request from Council Member Wirth for information on the
legalities pertaining to interim zoning and building moratoria.
Interim zoning and building moratoria are temporary land use control techniques
adopted by ordinance or resolution, to prevent land use that may be inconsistent with
a proposed zoning change. See: 1 Rathkopf, The Law of Zoning and Planning,
§11.01(1). Such a measure is intended to "freeze" land development, or to allow permits
for only those land uses that would not be inconsistent with a contemplated zoning
change. Legal issues involving the validity of such a measure are still unresolved in
Iowa.
In the case of Petersen v. City of Decorah, 259 N.W.2d 553 (Iowa App. 1977), the city
zoned property as "agricultural" because it wished the property to remain undeveloped
until it could attract an appropriate industry to the site; and refused the owners request
to rezone for a shopping center. The Iowa Court of Appeals held that to be an invalid
regulation. The court declared that a city cannot "freeze" an individual's use of his
property pending some indefinite future determination by the city of its appropriate use.
On the other hand, in the Minnesota case of Almquist v. Town of Marshan, 308 Minn.
52, 245 N.W.2d 819 (1975), the court upheld a zoning moratorium enacted in good faith,
and with a limited duration, when the study which prompted it proceeded promptly so
that appropriate zoning ordinances could be enacted without further delay when the
study was completed.
r ,
There is no express statutory authority in Iowa for zoning moratoria. The concept was
held to be invalid, because not authorized by statute, in the early Iowa zoning case of
Downey v. Sioux City, 208 Iowa 1273, 227 N.W. 125 (1929). In contrast, the State of
Wisconsin Supreme Court has found zoning moratoria to be valid as an exercise of_the
general "police power" of cities, regardless of the absence of express authorization in the
zoning statute. See: Walworth County v. Elkhorn, 27 Wis. 2d 30, 133 N.W.2d 257 (1965).
Minnesota statutes expressly authorize county boards to adopt temporary interim
ordinances for one year, plus a one-year renewal, for the purpose of conducting studies
and hearings regarding a comprehensive plan. Minn. Stat. Ann., §394.34.
The 1929 Sioux City case cited above could be overruled because it predates the Iowa
Home Rule Constitutional amendment. In the Sioux City case, the court ruled that an
ordinance setting a moratorium while Sioux City considered its first zoning ordinance
was invalid because there was no statutory authority. The Court addressed the
argument that a California court decision allowed such a moratorium by pointing out
that California had constitutional home rule for cities. The Iowa Court said:
"delegations of power by the state to municipalities are strictly construed
and convey no powers except those expressed or necessarily implied to
carry out the object of the grant; hence the municipal police power is
derived wholly from the state. That is not true under the California law,
as under the Constitution of that state the right to exercise the police
power is granted in the constitution to the municipality, and where the
corporation derives its police power from the constitution, it is as broad as
that possessed by the Legislature itself, ...".
Therefore, since Iowa now has constitutional home rule for cities, it is arguable that an
interim zoning moratorium is valid in Iowa also, even though not expressly provided
for by the zoning statute.
All of the foregoing discussion relates to interim controls enacted by ordinance in
accordance with state law procedural requirements for enactment of such an ordinance.
Clearly, the legal uncertainty is greatly compounded when it is proposed that the
controls be put in a place by a resolution purporting to prohibit what is otherwise
expressly authorized by ordinance. Although there are some reported instances from
the states of New York and Wyoming in which moratoria declared by resolution have
been upheld, the more usual ruling is that the moratorium must be established by
ordinance enacted in accordance with the established procedure for enactment of a
zoning ordinance. 1 Rathkopf, The Law of Zoning and Planning, §11.04. In Iowa, it is
a principle of municipal law that what the City Council has done by ordinance cannot
be changed by resolution. Glaser v. City of Burlington, 231 Iowa 670, 1 N.W.2d 709. See
also, Downey v. Sioux City, supra at 127.
Therefore, my conclusions are:
1. That any measure to establish an interim "freeze" on certain kinds of building
and zoning permits would have to be enacted as a zoning ordinance in accordance with
the established procedures for enactment of a zoning ordinance.
2. An ordinance creating an interim restraint on certain kinds of development,
pending completion of a planning effort, is arguably valid.
Of course, the Iowa Court's decision cannot be predicted with complete certainty. Also,
since a moratorium can have the same effect as a "downzoning" on an individual
property owner, the same risk analysis as stated in my letter of last week on
"downzoning" legalities should be considered with respect to a moratorium also.
Yours truly,
John R. aus
City Attorney
JRK:gmw