DeWulf plans on court action after appeal denied, 3-2
By BROOKS TAYLOR
Mt. Pleasant News
Emilie DeWulf of Mt. Pleasant may have lost another battle Thursday night in her efforts to have her property classified as a farm, but she pledged to continue her fight.
“Go ahead and vote it down,” a frustrated DeWulf said. “I’ll take it to (district) court.”
That would be DeWulf’s next step as the Mt. Pleasant Board of Adjustment rejected, by a 3-2 vote, DeWulf’s appeal of the determination of non-conforming use concerning her property on West Clay Street.
DeWulf also hinted district court may not be her final step. “I am pretty sure if I took this to the Iowa Supreme Court I would win because they want to protect the rights of property owner.”
Nearly lost in the recent maneuvering is DeWulf’s original request. Several months ago, DeWulf made a rezoning request for part of the property to be rezoned as an agricultural residential reserve district so she could expand her livestock. Currently a portion of the property is zoned R-1 (single family dwelling district) and B-4 (highway service commercial district).
Initially, the city’s planning and zoning commission approved the request. The Mt. Pleasant City Council, however, unanimously denied the request based on the “non-conforming” use of property language in city code.
DeWulf appealed, alleging that the city and Building and Zoning Administrator Barb Welander’s interpretation of the non-conforming language was too narrow, claiming that she should be able to use the property in such a manner as would be defined as a farm.
Iowa law, according to City Attorney Patrick Brau, defines a non-conforming use of property as “one that lawfully existed prior to the time of a zoning ordinance that was enacted or changed, and continues after the enactment of the ordinance even though the use fails to comply with the restrictions of the ordinance.
A non-conforming use, Iowa code says, is allowed to continue until such time as it is abandoned. However, a non-conforming use is not permitted to be enlarged or expanded. An original non-conforming use may change if the change is not substantial and does not adversely impact the neighborhood.
DeWulf’s plans for the property, as stated to the board of adjustment and city council, was to add up to 10 total horses, some goats and chickens on the property. It is unclear how many horses have been on the property when the rezoning request was made. DeWulf has indicated two but a neighbor said four were on the property in November of 2012. DeWulf also had one goat when making the original request but no chickens.
The Mt. Pleasant City Code section on non-conforming states, “It is the intent of this ordinance to permit these non-conformities to continue until they are removed, but not to encourage their survival.”
Further, the city code’s definition of non-conforming use of land says, “If any such non-conforming use of land ceases for any reason for a period of more than six months, any subsequent use of such land shall conform to the district regulations for the district in which such land is located.
A similar definition exists for non-conforming use of structures: “In the event that a non-conforming use of a structure, or structure and land in combination, is discontinued or abandoned for a period of one year, the use of the same shall thereafter conform to the uses permitted in the district in which it is located.
The district in which DeWulf’s property is located is primarily residential.
DeWulf maintained that the property, owned by the Dickson family, has always been a farm. “I live on a farm and can’t use it as a farm,” she began. “I think we should be talking about what is a farm and what should be allowed on a farm. I am not asking to enlarge the horse pasture, but to use the facilities that are there for animals.”
Board of adjustment member Patricia File admitted the matter was truly a dilemma. “This is difficult, we understand (that)…My understanding is that the intent (of the non-forming usage language) is a bridging element to help property owners configure their property into a new zoning configuration. What was once farming is now residential. Expanding it (the horse population) would be appropriate. (The language) is for a gradual transition from one use to another.”
DeWulf countered that the property was a farm and always will be one. “My great-grandmother wrote in her will that the farm could not be sold as long as a family member wanted to live there…You have to take into consideration that my family was under the impression that this was a farm…I think it is inappropriate to limit what you can do on a farm…The property has not changed in 100 years.”
Judy Miller, a supporter of DeWulf, agreed, “She wants to use the farm the way it was intended.”
Laura Miller, another DeWulf supporter, claimed DeWulf was being targeted. “The number one reason for the (city’s) comprehensive plan is to promote agriculture and I don’t understand why Emilie is being targeted.”
Brau answered that no one was disputing that the property was not a farm.
She also said that her family was never made aware of the impact the zoning change would have on the property.
The Dickson property was voluntarily annexed into the city in 1971, DeWulf noted, with the understanding that the property would remain a farm. Welander, however, said that when the property was annexed into the city, that procedure would have forbidden the farming operation to expand because it was now in a residential district.
“The farming aspect can continue,” Welander said, “but you have slowly diminished the livestock. You reduced livestock and that is my interpretation (of the non-conforming statute).”
DeWulf said the non-conforming usage language infringes upon individual rights. “I don’t think that it (non-conforming language) it encourages transition but infringes upon rights.”
Board member Bob Griffth, who made the motion to deny the appeal, said the property’s location has to be considered. “It is zones residential, you have to consider that aspect.”
“The intent of non-conforming language is to transition people from the former use to what the use is now,” File, who seconded the motion to deny the request, claimed. “We are guided by an ordinance that we have to enforce.”
“We have to go by the code, that is the bottom line,” agreed Griffth.
Board member Mark Kimzey, who cast one of the two nay votes (Margi Moiuntz also voted no) said, “Residential really hasn’t happened there. I tend to lean toward a farm being a farm.”
“My grandfather and great-grandfather never knew there was a limit on the number of animals in a pasture,” DeWulf contended. “I think it is unreasonable to limit the number of animals. We need to really think about it.”
Discussion during the 70-minute hearing took more twists and turns than a dusty rural country road. Finally, Jack Edwards, chairman of the board who also voted in favor of denying the appeal, said, “Where are we besides confused?”
Following the vote, DeWulf reiterated that her efforts will continue despite the setback. “I will take it to (district) court, I am pretty sure I will win. I am not expanding the animal pasture, I expanding the number of animals where there is a horse pasture. There can be a farm.”