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Harms v. City of Sibley11/24/2004
Defendants, the City of Sibley, Joe's Ready Mix, Inc., and Arlon Sandbulte appeal from a money judgment entered against them and in favor of Kenneth Harms and Myrna Harms. AFFIRMED IN PART AND REVERSED IN PART.
Defendants, the City of Sibley (City), Joe's Ready Mix, Inc. (Joe's), and Arlon Sandbulte, appeal from a money judgment entered against them and in favor of plaintiffs, Kenneth Harms and Myrna Harms. The City rezoned property from "light industrial" to "heavy industrial" to allow construction of a cement ready-mix plant on property owned by Sandbulte within the city limits of Sibley. Sandbulte leased the property to Joe's. The district court found the ready-mix plant created a compensable nuisance and that plaintiffs were damaged as a result. The City was held liable under the theory of a taking without just compensation by inverse condemnation because the City rezoned to allow the use. The City contends the evidence was not sufficient to find its action in rezoning the property constituted a taking. The other defendants were held liable under the theory of nuisance. Defendant Sandbulte contends he cannot be found to have created and maintained a nuisance or a permanent physical invasion of plaintiffs' property, as he was simply the lessor of the property. Defendant Joe's contends there is not substantial evidence it created a nuisance or a permanent physical invasion of plaintiffs' property. Sandbulte and Joe's also contend the district court erred in its damage award in favor of plaintiffs and in rejecting certain evidence. We affirm in part and reverse in part.
These certain facts are basically undisputed. In September of 2000 representatives of Joe's sought a building permit to build a ready-mix plant on land near the west edge of the City of Sibley, then zoned "light industrial." The application was denied by the city zoning administrator who concluded that such a plant could only be built in an area zoned "heavy industrial." An appeal to the Board of Zoning Adjustment was unsuccessful.
In December of that year the Planning and Zoning Commission recommended rezoning in response to a request by defendant Arlon Sandbulte, who sought to purchase the land. Owners of twenty percent or more of the property located within two hundred feet of the exterior boundaries of the land objected. The City Council voted three to two in favor of rezoning, but because the city attorney concluded Iowa Code section 414.5 required three-fourths of its members in favor to accomplish the rezoning, it was defeated. A new request that changed the location to be more than two hundred feet from the property line of plaintiffs, who had filed the original protest, was submitted. The Planning and Zoning Commission recommended its approval. Again the council voted three to two in favor of rezoning and the ordinance was declared adopted, as a three-fourths majority was no longer required.
Defendant Sandbulte then applied for a building permit to build the ready-mix plant and put a cement storage silo on the property. The permits were issued and the structures were built. Sandbulte leased the property to Joe's, who maintains operation of the plant. Sandbulte is a major shareholder and president of Joe's.
Plaintiffs, who had initially objected to the change in zoning, have owned their house and certain out buildings on a six-acre tract outside the incorporated limits of Sibley that are across the road from where the plant was to be built for over thirty-five years. Plaintiffs did not appeal the issuance of the building permits. Rather, they filed the action leading to this appeal contending, among other things, that the City's rezoning had damaged them under an inverse condemn
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