Decorah attorney weighs in on open meetings law violation claim

From Decorah attorney Karl Knudson:

"As an attorney representing several concerned citizens, I would like to address some process issues which arose in connection with the proposed issuance of a conditional use permit to allow operation of a sandstone quarry on Canoe Valley Road. 

Section 404.11 of the Winneshiek Zoning Ordinance defines a conditional use to be a "land use … that would not be appropriate generally but may be allowed with appropriate restrictions as provided by official controls upon a finding that:
(1) Certain conditions as detailed in the zoning ordinance exist;
(2) The use or development conforms to the Comprehensive Plan of the County; and
(3) Is compatible with adjacent land use."

Section 505.1 of the Zoning Ordinance requires the Board to consider the "affect of the proposed use upon the health, safety, and general welfare of occupants of surrounding lands" following seven criteria.  Those criteria include whether the proposed use will excessively burden roads, will depreciate the value of nearby properties, will be consistent with the Zoning Ordinance and in conformance with the Comprehensive Plan, and will cause traffic hazard or congestion. 

Determination of these issues is to be preceded by a Planning and Zoning hearing and recommendation, with the final decision to be made by the Board of Supervisors.  The P & Z is merely a recommending body, but its fact investigation and recommendation can be important in a close case.

At the July 13th meeting of the P & Z, the chairman explained that four of nine members of the Planning & Zoning Commission had traveled together to the quarry site two days before the hearing, that a fifth member then arrived at the quarry site unexpectedly, that when that happened at least one of the members moved away from the others to avoid a gathering by a majority.  As I understand it, the members did not discuss the quarry permit with each other while touring the quarry with its operator.  Upon hearing of this incident, a private individual exercised her right to lodge an informal open meeting complaint with the County Attorney, expressing her own concerns about the process she perceived.  This individual did not file her complaint with the Court, and under Iowa law the County Attorney has no obligation to follow up on an informal complaint.   

Under Iowa's Open Meetings law, a "meeting" occurs only if there is a "gathering … of a majority of the members of a governmental body," and only if those members engage in "deliberation or action" in regard to their "policy-making duties."  If the gathering of five members of the P & Z was unintentional and involved no discussions between commission members concerning policy-making duties, no "meeting" occurred under Iowa law, and there was no violation.  Therefore, I have no reason to believe that the open meetings law was violated.  In fact, neither I nor the "Canoe Valley Residents Association" have joined in lodging the informal open meetings complaint.   It is my opinion, however, that even if no open meeting violation occurred, it would have been better if the P & Z had avoided the appearance of impropriety by trying to arrange the quarry tour through a more open process.

Also, even if the open meeting law was not violated, I have more general concerns with the fairness of the process which will lead to the P & Z's important recommendation.  After the meeting, the P & Z was instructed that members should not try to obtain any further factual information pertinent to its recommendation.  Either the same rule should have been applied to prevent members from acquiring evidence on their own prior to the hearing (such as information conveyed during the quarry visit), or else the rule should be relaxed to allow members to acquire evidence any way they wish after the hearing to answer their lingering questions. 

On a related note, a member of the July 13th hearing audience verbally complained to the P & Z that, although its Tentative Agenda gave proper notice of the quarry permit hearing, it did not state that action might be taken on the application when the hearing closed.  Because I am familiar with Open Meetings law, I did not join with that protest either.  Under Iowa's Open Meetings Law, a governmental body is required to post a 24-hour notice and tentative agenda "reasonably calculated" to give the public "notice of the time, date, and place of each meeting and its tentative agenda."  The Supreme Court has ruled that such a notice is adequate if it "sufficiently apprised the public and gave full opportunity for public knowledge and participation" and that a local government need only "substantially comply" with those requirements.  In my opinion, the notice for the July 13 P & Z meeting met those requirements, as evidenced by the packed hearing room. 

For these reasons, I prefer to focus discussion on the many substantive issues at hand .  Without detailing those issues in this already lengthy letter, I believe the evidence and law clearly show that the proposed Quandahl site is the wrong location to permit a new quarry.  The proposed quarry would be incompatible with the neighborhood , and inconsistent with our Comprehensive Plan.  The P & Z, and the Board of Supervisors, should vote NO on this permit application."