Government : Board of Adjustment rules that only courts have jurisdiction in sand pit appeal

Sitting this morning, across the table from the attorney who had served them legal papers after their last decision, the Benton County Board of Adjustment heeded the advice of the two other lawyers in the room and decided that they do not have jurisdiction to review an appeal from a neighbor who disagreed with the Board of Supervisors' decision regarding a sand pit.

Two months and two days after the supervisors unanimously agreed to approve a land use change request to allow Coots Materials to create a sand pit on 24th Avenue Drive, the members of the Board of Adjustment – Joan Lindberg, Doug Stein, Steve Runyon and Karen Peterson (with member Dean Schminke absent) met to hear an appeal from Rodney and Jackie Fisher, who live closest to the site.

The Board, which has met rarely in the past several years, gathered again this year to act upon a kind of appeal it had never before received: An appeal from a neighbor who disagreed with a decision made by supervisors. All other Board of Adjustment appeals before had come from property owners whose request supervisors had denied.

After a 45-minute discussion with the attorneys involved in the case, the board members unanimously voted they do not have jurisdiction; if the Fishers and their attorney wish to appeal the case, they must do so in district court.

It was in district court on Feb. 24, that Jennifer Zahradnik, the attorney representing the Fishers, filed a law suit in Benton County District Court. That legal action, formally called a Certiorari Petition, involves the case of Red Shed Auto Repair. After supervisors Terry Hertle and Don Frese turned down a request from Red Shed owner Dean Brown, he appealed to the Board of Adjustment. That board reversed the supervisors' decision, allowing Brown to run his mechanic shop on 55th Street.

Zahradnik was representing property owners Gary and Jill Marlow in that case; a few weeks after negotiating with the Board of Adjustment on behalf of the Marlows, Zahradnik filed the lawsuit on her own behalf. That legal action is still in progress in the court system; attorney have filed briefs but no hearing date has yet been set. Brown's property is approximately one mile from the proposed sand pit site; many of the neighbors who supported his land use request were among those opposing the sand pit.

A Board of Adjustment member asked Zahradnik if she planned to pursue the matter in court; she replied Monday morning that she did not yet know.

Jurisdiction debate

The Board of Adjustment heard four opinions about jurisdiction during Monday's hearing. Zahradnik argued that they do have jurisdiction, citing a Cedar Rapids court case. John Hammond, representing Coots, disagreed, telling the board it lacks jurisdiction.

The board also heard from County Attorney David Thompson and Land Use Administrator Marc Greenlee. Thompson told the board the decision was theirs, but added that it is his opinion that the ordinance only gives them jurisdiction to hear from land owners. Greenlee told the board that he believed that the “administrative official” the ordinance refers to his him, not the supervisors.

The Board of Adjustment debated these questions before the unanimous vote.

In response to a board member's question on if the board could get in trouble for any decision it makes, Thompson said "No." While telling the board that anyone could appeal any decision they make to court, he added that nobody could hold them personally liable for doing what they believe isi right.

"You are trying to administer an ordinance that is not easy to administer," he said.