News Auto shop owner\'s land use appeal may raise variety of legal issues

The future of a fledgling Vinton business with just one opponent  – the county auditor – depends on the votes of a Benton County board that hasn’t met for more than 10 years; the case may raise a variety of historic legal issues for county leaders throughout 2016.

The Benton County Board of Adjustment will meet Jan. 27, in the courthouse, to hear an appeal from Dean Brown.

Brown is an automotive mechanic who has been working at shops in Vinton for the past several years. In 2005, he and his wife, Taraca, built a cedar log house at 2374 55^th Street just a few hundred yards north of the Vinton airport. In 2014, Brown built a red 36’ by 36’ steel machine shed, with the intent of using it as an automotive repair shop.

Like all others who build new houses, Brown was required to seek a land use change approval from the Benton County supervisors. He received that approval a decade ago, and he and his wife built the house in 2006. County ordinances do not require any special permission for Brown to build the machine shed.

However, declaring that he wanted to use his property for a business, as well as a residential property, meant that Brown must again return to the supervisors to ask for another land use change. His original land use application only asked for permission to use part of the property for residential purposes.

Brown has built a lift in his shed, stocked it with tools, and has even come up with a name for his business: Red Shed Auto Repair.

He and his wife paid the $500 fee for a land use change application, and began contacting neighbors to share his plans and seek their input.

The response was almost unanimous in support of allowing the business.

Brown gathered a few dozen signatures on a petition, and also received letters of support from some neighbors.

“We are neighbors closest to his residence,” wrote Terry and Sue Hart, who live at 2362 55^th Street. “He has kept his grounds clean and well-kept. He has also been a valuable asset that we did not count on when we moved into this area. He has helped clear the drive when it snowed heavily. He has kept our vehicles running and maintained, helped get the tractor running and he even went to Cedar Rapids and got our vehicle started when it broke down. He provides a valuable service that the rest of the community could definitely use.”

Another letter of support came from Joe Pflughaupt, who lives west of Brown’s house at 2427 55^th Street, said “It will be nice to have a repair shop that is economical and trustable so close. Repair shops keep farmers running.”

However, one neighbor objected.

Gary and Jill Marlow live across the street and to the east of Brown, at 2397 55^th Street.

Jill Marlow – the Benton County Auditor – works closely on a daily basis with the county supervisors on budget and policy issues.

The Marlows wrote a three-page letter expressing a variety of concerns about living so close to a business. They cited noise concerns, increased traffic and its impact on their dust control, and the possible devaluation of their property.

The Benton County Board of Supervisors voted on Nov. 17, to deny Brown’s request. Supervisors Terry Hertle and Don Frese voted no. Todd Wiley was absent.
Minutes of the meeting indicate that Hertle and Frese determined that “the proposed use is not compatible with the overall land use pattern of the surrounding area as discussed within the Benton County Comprehensive Land Preservation and Use Plan.”

Also attending the meeting were Marc Greenlee, the Environmental Health/Land Use administrator; and Benton County Attorney Dave Thompson.

Greenlee told the board that Brown had been working nights and weekend at his property, bringing him into violation of the ordinance. Thompson, however, expressed concerns about enforcing the ordinance. He also suggested during that Nov. 17 meeting that the vote be delayed until all three supervisors are present. Todd Wiley was absent.

Brown has hired a lawyer to represent him throughout the appeal process and for any litigation that may ensue.  He also had to pay a $500 fee when he filed the appeal. Both $500 fees are non-refundable.

Brown has compiled a list of other businesses operating within the rural areas of Benton County; some, he said, are doing so without receiving the official permission required by the land use ordinance.

One of the concerns raised was that if the supervisors approve this land use change, a future owner could create a junk yard or other unsightly mess.

But Brown points out that the board addressed that very same question at the same meeting, involving another land use change for a business, which was approved.

According to the minutes of that meeting, Greenlee answered that question about future owners by saying, “This land use change is specific; no other business could be moved into this area without a new land use change.”

“I am just trying to be a good neighbor,” he said, adding that his lawyer advised him to say nothing more.

The supervisors and county auditor also said they had no further comment on the issue.

Land use change history and fines for violations

The “No” vote on Brown’s request ended a streak of nearly 100 consecutive “Yes” votes on land use changes going back to 2009. Since 2000, the supervisors have voted on more than 280 land use change requests; less than 10 have been denied or were withdrawn.

Greenlee said that nobody has ever successfully appealed a land use change refusal, either via the Board of Adjustment or the court system. In some of those cases, the CSR – Crop Suitability Rating – of the property in question was an issue. Brown said the soil in his area of the county is known for its poor soil ratings, and that neighbors have said he is making the best use of the land.

The last time that someone has been cited for violating the ordinance was 2009, said Greenlee.

Under the ordinance, if Brown were to run a business without obtaining approval, he would be subject to a fine for each day he operates a business. While the ordinance mentions a $100 fine for the first day and a $200 fine for subsequent days, the Iowa law governing such issues has a much more severe maximum fine.

“State Code prescribes that a civil penalty of $750 may be assessed for a county infraction,” said Greenlee. “A repeat or second offense is $1000.  These are not to exceed amounts.  Due to the fact that the county recodifies all ordinances as required by Law these amounts automatically “update”.  The actual penalty, though, is determined and ordered by the Magistrate.  Amounts have varied, depending on the case.”

Greenlee said the last time he issued a citation for a land use violation was in 2009; that owner was fined, he said.

The Board of Adjustment will hear Brown’s appeal at 1:30 p.m. Wednesday, Jan. 27, in the supervisors’ board room. The meeting is open to the public.

Some of Brown’s friends and neighbors are hopeful that the Board of Adjustment will reverse the supervisors’ decision.

“Dean is a terrific neighbor,” says Terry Hart. “He is helping keep that property clean. His word is his bond – there is not a more honesty and trustworthy person. He should be allowed to have the land use change.”

The Brown appeal is one of two stories from that Nov. 17 meeting that raised issues that will continue to be topics of discussion for the county supervisors in 2016. That day, the supervisors also heard an appeal to change the county’s employee nepotism policy from Kari and Joshua Burkhart. After discussing the issue at multiple meetings, the supervisors granted Josh a three-month delay of his termination notice as they consider changing the county’s strict policy. Marrying Kari triggered the nepotism policy termination procedure because it means that Josh now works in the same department (Secondary Roads) as Kari’s father, although they work in different buildings and Josh’s father-in-law is not in a supervisory role over him. 

After discussing the issue at multiple meetings, the supervisors granted Josh a three-month delay of his termination notice as they consider changing the county’s strict policy. Marrying Kari triggered the nepotism policy termination procedure because it means that Josh now works in the same department (Secondary Roads) as Kari’s father.  

See that story HERE.