Opinion
No. 03-1665.
March 31, 2005.
Appeal from the Iowa District Court for Webster County, William C. Ostland, Judge.
Corpus Christ Minerals Company appeals a refusal to declare Webster County's zoning ordinance void. AFFIRMED.
Jerry L. Schnurr III and Ernest Kersten of Schnurr, Fitzgerald Kersten, Fort Dodge, for appellant.
Timothy N. Schott, County Attorney, and Jonathan Beaty, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Miller and Eisenhauer, JJ.
Corpus Christi Minerals Company (the Company) would like to mine gypsum in Webster County (the County); however, the County's zoning ordinance stands in the way. Rather than seeking a special exception use permit, the Company sought a declaratory judgment, asking the district court to declare the County's zoning ordinance "null and void." The district court declined to do so, and the Company appeals. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.
I. Factual Background.
In 1971, the County adopted a comprehensive zoning ordinance. Prior to its adoption, the County published notice of its intent to adopt a zoning ordinance "dividing the unincorporated area of Webster County, Iowa, into districts."
In 1987, the County adopted a new zoning ordinance. Prior to its adoption, the County published notice of a public meeting on the ordinance, but the notice disclosed by the county in this litigation did not contain any description of the land subject to the ordinance.
On April 24, 1997, the County published notice of its intent to repeal the 1987 ordinance and replace it with a new comprehensive zoning ordinance. The published notice (1) described the land subject to the proposed ordinance as "the unincorporated area of Webster County", and (2) gave notice of a public hearing on April 29, 1997, to discuss the proposed ordinance. The county published notice of subsequent public hearings on May 12, 1997, and May 14, 1997; however, these notices did not describe the land subject to the ordinance. The ordinance was adopted on May 29, 1997.
The Company's articles of incorporation were signed and filed in December 2001. The Company seeks to mine gypsum on land zoned as A-2 (Agricultural), and it estimates it would earn a profit of $200,000 from that mining. The 1997 zoning ordinance would require the Company to obtain a special exception use permit to mine gypsum. Under the 1997 ordinance, no such permit shall be granted where such use includes vibration "discernible without instruments on any adjoining lot or property." As the Company's mining operation would require the use of "high explosives," the Company did not seek a permit. Rather, the Company challenged the validity of the zoning ordinances.
II. Scope of Review.
As this matter involves the application of the law to undisputed facts, we review for the correction of errors at law. See, e.g., Goodell v. Humboldt County, 575 N.W.2d 486, 491 (Iowa 1998).
III. Discussion.
Iowa Code section 335.6 (1997) and its predecessor (Iowa Code § 358A.6 (1971)) provide:
The board of supervisors shall provide for the manner in which the regulations and restrictions and the boundaries of the districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, the regulation, restriction, or boundary shall not become effective until after a public hearing, at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of the hearing shall be published as provided in section 331.305. The notice shall state the location of the district affected by naming the township and section, and the boundaries of the district shall be expressed in terms of streets or roads if possible. The regulation, restriction, or boundary shall be adopted in compliance with section 331.302.
(Emphasis added). Admittedly, none of the notices named the townships and sections to be covered. The Company argues this is fatal.
Compliance with section 335.6 is necessary for a county board of supervisors to acquire jurisdiction to adopt a zoning ordinance. Osage Conservation Club v. Board of Supervisors, 611 N.W.2d 294, 297-98 (Iowa 2000). Such a failure renders any ordinance adopted "void." Id. at 297 (citing B. H. Inv., Inc. v. City of Coralville, 209 N.W.2d 115 (Iowa 1973)). We must decide whether (1) substantial compliance with section 335.6, rather than perfect compliance, which is lacking here, is sufficient, and (2) whether the County's notices were in substantial compliance with that section.
The first question has not been squarely before any Iowa appellate court. In Osage Conservation Club, our supreme court was faced with an utter lack of compliance with chapter 335. Id. at 295 (noting the Mitchell County Board of Supervisors "held no special hearing concerning" the proposed zoning action). However, in its survey of the law, the court referred to secondary authorities stating "substantial compliance" with statutory notice provisions would be sufficient. Id. at 298 (citing 1 Kenneth H. Young, Anderson's American Law of Zoning § 4.03, at 247-49 (4th ed. 1996)). This view is the majority rule, see 83 Am. Jur. 2d Zoning and Planning § 502, at 434 (2003), and it is sound. We adopt it. A notice given in substantial compliance with section 335.6 is adequate.
We turn now to the second question. We must decide whether the notices published by the County substantially complied with section 335.6. The purpose of the notice requirement "is primarily to aid the Board in gathering information to discharge the legislative function." Osage Conservation Club, 611 N.W.2d at 298 (citation omitted). It does so by giving notice to property owners and others who have a stake in the passage or defeat of the proposed ordinance. 83 Am. Jur. 2d Zoning and Planning § 516, at 445-46. "A notice of hearing may be reviewed to ascertain whether it was sufficient reasonably to inform the public of the essence and scope of the zoning regulation under consideration." Id. § 516, at 445 (emphasis added). A notice's sufficiency is purely a matter of law. Id. § 512, at 443.
Applying these principles to the present case, we conclude the County's 1997 notice substantially complied with section 335.6. While these notices did not give townships and sections, they indicated all of the unincorporated area of Webster County would be subject to the proposed zoning ordinances. After reviewing the record, we conclude the district court did not err when it found substantial compliance, as the challenged notices reasonably informed the public of the County's proposed action. As noted by the district court in denying the Company's motion for summary judgment, the County's residents and landowners would reasonably be expected to know whether or not their property was in unincorporated areas. This is unlike a situation where only a portion of the unincorporated area of a county would be subject to a proposed zoning ordinance. Under the facts of this case, the notice was adequate and the County acquired jurisdiction to pass the challenged ordinances.
In its brief, the Company makes a passing reference to the timing of the 1997 notices. It argues the only notice to even attempt to describe the subject land (a notice we have found in substantial compliance with section 335.6) was published more than twenty days before the ordinance was adopted. The Company argues this is a violation of Iowa Code section 331.305 (notice of hearing must be "not less than four nor more than twenty days" before the hearing), which section 335.6 incorporates by reference. We find no defects in timing. Section 331.305 does not place a time limit on notice by publication relative to the ordinance's final passage; rather, its limits are linked to the hearing required by section 335.6. Here, the County published the notice in substantial compliance with section 335.6 on April 24, 1997, which was at least four days and less than twenty days prior to the April 29 public hearing on the challenged ordinance. That is all sections 331.305 and 335.6 require. Osage Conservation Club, 611 N.W.2d at 297 (stating "the board must publish notice of such action at least once" within the timeline provided by section 331.305 (emphasis added)).
Other arguments raised by the Company lack merit. Due to our disposition, we need not consider the County's other arguments in support of its zoning ordinance or the affirmative defenses urged by the County below.
IV. Conclusion.
We have considered all issues presented. We affirm the judgment of the district court.