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Kasparek v. Johnson County Bd. of Health

Citation: 10 ELR 20539
No. No. 62420, 288 N.W.2d 511/(Iowa, 02/10/1980)

On review of a municipal ordinance restricting the availability of septic tank installation permits to residential lots of five acres or more, the Iowa Supreme Court declares unconstitutional that portion of the ordinance granting a "grandfather" exemption to all previously platted subdivisions except those in the area where appellees own property. In support of its conclusion that such an exemption from the grandfather clause constitutes a "taking" without just compensation, the court first observes that the regulation deprives appellees of any reasonable use of their land since the "patchwork" of sold and unsold lots within their subdivisions makes it nearly impossible for the them to reapportion them into five acre lots. Such interference with investment-backed expectations reasonably formed on the basis of approval previously given by county officials was not justified by the circumstances. Though the area in which appellees own land had been excluded from the grandfather clause on the ground that it was subject to "multiple risks" of pollution from septic drainage, the court finds the evidence of such risks to be nebulous. It also notes that a less drastic means of mitigating sewage disposal problems has already been adopted by the state and thus concludes that no substantial public purpose is served by appellees' exclusion from the relief provided by the grandfather clause. On issues unrelated to the constitutional question, the court upholds the authority of a county board of health to appeal lower court decisions independently of the county board of supervisors, ruling that its statutory power to enforce its regulations implies the power to defend them in court. Second, the fact that the board paid district court costs does not estop it from pursuing an appeal since it had not shown any intent of abandoning further litigation. Finally, the court finds without merit the board's claim that appellees are barred by laches from attacking the regulation.

In dissent, four judges argue that appellees did not meet their burden of negating every reasonable basis for the legislative decision, and, furthermore, find that appellees failed to show a reduction in property value sufficient to constitute a "taking" under federal constitutional standards.

Counsel for Appellant
J. Patrick White, First Ass't Johnson Cty. Attorney
328 S. Clinton St., Iowa City IA 52240
(319) 338-7968

Counsel for Appellees
Edward Rate
315 Iowa State Bank and Trust Bldg., Iowa City IA 52240
(319) 337-9659

William H. Bartley
Bartley, Bartley & Hinman
528 S. Clinton St., Iowa City IA 52240
(319) 338-9236

Considered en banc.

All Justices concur except McCORMICK, REES, UHLENHOPP, and HARRIS, JJ., who dissent.