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LAND USE DISPUTES
U. S. District Court, Iowa (2008) Housebroken pig deserves consideration as pet in neighborhood that accepts horse and other animals.
Dahlsten v. Lee
Housebroken pig deserves consideration as pet in neighborhood that accepts horse. ADDED XXXXX 2008
Dahlsten v. Lee
United States District Court, N. D. Iowa Central Division
531 F.Supp.2d 1029
January 23, 2008
Summary of Opinion
This case began as a suit by a Native American against the Mayor of Dakota City and the city for a denial of a permit to allow Dahlsten and his family to keep their housebroken, pet, pot bellied pig at their home. The pig was kept as a pet for an autistic child who was afraid of animals that might bite. Horses were permitted in the neighborhood. This court allows the pig saying, “The decision to deny a special-needs child his pet under such circumstances strikes the court as one utterly devoid of humanitarian compassion and imbued instead by a mean-spirited devotion to conformity. Only fidelity to autocratic rule can explain the logic behind such a decision where there is no record of any complaint regarding Sid. Other than his species, one is hard pressed to distinguish, in any meaningful way, Sid from those animals who are readily and fully accepted as pets. Indeed, Sid is smaller than many breeds of dog and is house trained to use a litter box. The soundness of Dakota City's decision to exclude Sid from its borders is one which calls out for compassionate reconsideration.”
Text of Opinion
On December 15, 2006, plaintiff Frank Dahlsten filed a complaint in this court against David Lee, individually and in his official capacity as the mayor of the City of Dakota City and the City of Dakota City. This lawsuit arises from the denial of the Dakota City Council to permit plaintiff Dahlsten and his family to keep the family's pet Vietnamese pot-bellied pig, Sid, at their home. In his complaint, plaintiff Dahlsten alleges that defendants violated plaintiff's rights under the Equal Protection Clause and the Constitution of the State of Iowa by denying him and his family the same rights enjoyed by non-minority citizens to have agricultural animals as pets. Plaintiff Dahlsten also alleges that defendants violated the Iowa Civil Rights Act, Iowa Code Ch. 216, by not allowing his family to keep an agricultural animal as a family pet. Finally, plaintiff Dahlsten alleges that defendants violated the Iowa Civil Rights Act by retaliating against him for asserting his rights.
Defendants have filed a Motion for Summary Judgment on plaintiff Dahlsten's claims against them. First, in their motion, defendants assert that plaintiff Dahlsten's § 1983 claims fail as a matter of law. Second, regarding plaintiff Dahlsten's § 1983 claims against David Lee, defendants contend that defendant Lee is entitled to qualified immunity. Third, concerning plaintiff Dahlsten's § 1983 claims against defendant Dakota City, defendants contend that these claims fail because there is no valid underlying constitutional claim or, in the alternative, plaintiff Dahlsten's claims fail because he cannot show that there was a pattern or practice underlying the alleged violation. Finally, defendants contend that plaintiff Dahlsten's state law claims under the Iowa Civil Rights Act fail as a matter of law. Plaintiff has filed a timely response to defendants' Motion For Summary Judgment.
Before turning to a legal analysis of defendants' Motion for Summary Judgment, the court must first identify the standards for disposition of a motion for summary judgment, as well as the undisputed factual background of this case.
B. Factual Background
The summary judgment record reveals that the following facts are undisputed.
Plaintiff Frank Dahlsten (“Dahlsten”) is a resident of Dakota City, Iowa. The address of plaintiff Dahlsten's home is zoned residential. Defendant Lee is a resident of Dakota City, Iowa, and, at all times relevant, was the Mayor of Dakota City. Defendant the City of Dakota City is a government subdivision of the State of Iowa organized under Iowa State law.
In September of 1973, Dakota City passed its first zoning ordinance, the City of Dakota City Zoning Ordinance (“the Zoning Ordinance”). The Zoning Ordinance sets out the following six possible zoning classifications for land in Dakota City: (1) Class “A” residential districts; (2) Class “B” multiple family residential districts; (3) Class “R” retail business districts; (4) Class “C” commercial districts; (5) Class “D” commercial and light industrial districts; and, (6) Class “E” heavy industrial districts. A map attached to the Zoning Ordinance sets out the zoning areas within Dakota City.
The following uses of land are permitted in all Class “A” residential districts:
A. One-or two-family dwelling units.
B. Single family detached dwellings, provided that all new single-family detached dwellings for which building permits have been issued on or after December, 1994, the minimum dimension of the main body of the dwelling unit shall not be less than twenty (20) feet.
C. Churches and places of worship and parochial schools.
D. Public schools, public libraries, parks and playgrounds.
E. Greenhouses and customary agricultural operations, but no livestock or fowl are to be raised in the district.
F. Small home operations, provided there are no signs or other evidence of such use other than a small announcement or professional sign not over two (2) square feet in size.
G. Other customary accessory uses and buildings, provided such uses are incidental to the principal use and do not include any activity conducted as a business.
H. Fraternity, sorority and lodge houses.
Dakota City Zoning Ordinance § 165.07, Plaintiff's App. at 019.
Under the Zoning Ordinance, the following uses of land are permitted in all Class “B” multiple family residential districts:
A. All uses permitted in Class A Residential Districts, subject to all the restrictions specified in Class A Districts.
B. Multiple-family dwelling units.
C. Boarding and lodging houses.
D. Hospitals, day nurseries, nursing and convalescent homes and clinics.
Dakota City Zoning Ordinance § 165.08, Plaintiff's App. at 020. In the next higher use classification, Class “R” retail business districts, the following uses of land are permitted:1. Any use permitted in a Class A or Class B Residential District.
2. Bakeries.
3. Banks.
4. Barber shops or beauty parlors.
5. Bus stations.
6. Electrical and shoe repair shops.
7. Heating, plumbing and tinsmithing, provided the display, service and storage of all products and items are conducted within a building.
8. Hotels.
9. Interior decorating shops.
10. Messenger or telegraph service station.
11. Printing shop.
12. Professional and business offices.
13. Photographic gallery.
14. Public garage, provided the display, repair, storage and equipping of both new and used cars and vehicles are conducted within a building.
15. Restaurants.
16. Sales and service of farm implements, provided the display, service and storage of same are conducted within a building.
17. Service establishments only when totally enclosed within a building and which are not objectionable due to emission of odor, smoke, dust, gas or noise.
18. Taverns.
19. Theaters.
20. Laundry cleaning establishments.
21. Conduct of retail business entirely within a building.
Dakota City Zoning Ordinance § 165.09, Plaintiff's App. at 021.
The following uses of land are permitted in all Class “C” commercial districts:
1. Any use permitted in the “R” District, except taverns and hotels.
2. Filling stations.
3. Hospitals and clinics for animals, but not open kennels or yards where animals are confined or exercised.
4. Milk collecting depots.
5. Motels and tourist courts.
6. Public garage, provided the repair, storage and equipping of both new and used cars and vehicles are conducted within a building. However, the display for sale purposes of new and used cars and vehicles need not be conducted within a building.
7. Sales and service of farm implements, provided the repair, storage and equipping of same are conducted within a building, however, the display for sale purposes of new and used farm implements need not be conducted within a building.
8. Advertising signs.
Dakota City Zoning Ordinance § 165.10, Plaintiff's App. at 021-022. The next higher use classification is Class “D” commercial and light industrial districts, in which the following uses of land are permitted:1. Any use permitted in the “C” District.
2. Amusement enterprises such as dance halls and skating rinks.
3. Taverns.
4. Freight and passenger stations and grounds.
5. Hotels.
6. Manufacture or assembly of tools, dies, machinery, hardware products or sheet metal products.
7. Bottling plants.
8. Fuel and building materials, but not including junk yards.
9. Ice cream and cheese factories and creameries.
10. Truck terminals.
11. Used car sales or storage lot and implement sales and storage lots.
12. Warehouses.
13. Wholesale establishments.
14. Mobile homes.
15. Mobile home parks.
16. Any other commercial enterprise which is not noxious or offensive due to emission of odor, gas, dust, smoke or noise, and which will not substantially or permanently injure the appropriate use of neighboring property, provided that all raw materials and equipment utilized in such enterprise are maintained within an enclosed structure, except that the finished products of such enterprise may be stored or displayed outside of any structure.
Dakota City Zoning Ordinance § 165.11, Plaintiff's App. at 022-023.
The final and highest use classification is Class “E” heavy industrial districts, in which the following uses of land are permitted:
1. Any use permitted in the “D” District.
2. Storage of junk or non-operable motor vehicles, but only within a painted tight fence or masonry wall not less than eight (8) feet in height.
3. Any heavy industrial or manufacturing use, provided that any use that would be objectionable by reason of dust, gas, smoke, noise, fumes, odor, vibrations, soot or explosion requires a special use permit. Included among these uses are the following: cement, lime, gypsum or plaster of paris manufacture; manufacture or storage of explosives; fertilizer or glue manufacture; garbage, offal or dead animal reduction or dumping; fat rendering or distillation of bones; petroleum refining, smelting of tin, copper, zinc or iron ores; stockyards or slaughter of animals. All such objectionable uses are subject to review by the Board of Adjustment and may be permitted if approved by the Board and subject to the securing of a special use permit therefor and to such conditions, restrictions and safeguards as may be deemed necessary for the purpose of protecting the health, safety, morals or general welfare of the community.
Dakota City Zoning Ordinance § 165.12, Plaintiff's App. at 023.
The Zoning Ordinance also contains provisions regarding nonconforming uses at the time of enactment and the abandonment of such nonconforming uses. With respect to nonconforming uses in existence at the time of enactment, the Zoning Ordinance provides:
The lawful use of any building or land existing at the time of the enactment of the Zoning Ordinance may be continued although such use does not conform with the provisions of this chapter.
Dakota City Zoning Ordinance § 165.18, Plaintiff's App. at 029. With regard to the abandonment of such nonconforming uses, the Zoning Ordinance states:Whenever a nonconforming use has been discontinued for a period of one year, such use shall not thereafter be reestablished, and any future use shall be in conformity with the provisions of this chapter.
Dakota City Zoning Ordinance § 165.19, Plaintiff's App. at 029.
In 2000, Dakota City had a total reported population of 911 people. The United States Census Bureau report for 2000 reports that only one Native American lives in Dakota City. Dahlsten is a Native American.
The court notes that because Dahlsten states in his deposition that he did not move to Dakota City until either 2001 or 2002, see Defendant's App. at 17, Dahlsten Dep. at 38, he cannot be the Native American resident of Dakota city referred to in the 2000 United States Census report.
Plaintiff Dahlsten owns a Vietnamese pot-bellied pig named Sid. Dahlsten got Sid as a pet for his son, Zachary. Zachary is autistic and, as the result of being attacked by a dog, is afraid of animals that might jump up on him, such as a cat or dog. Dahlsten acquired Sid around April 11, 2004. Sid is approximately 18 inches high, 30 inches long and weighs 80 pounds. Pursuant to Dakota City Ordinance § 55.06 and Iowa Code § 717.1, Sid is classified as “livestock” because he is a porcine species. Sid spends approximately ninety-percent of his time inside. Sid is potty trained and uses a kitty litter box inside. When outside, he defecates and urinates in a specific spot. Dahlsten cleans up these spots and properly disposes of the manure.
On April 14, 2004, Agnes Fouarge, a resident of Dakota City, appeared before the Dakota City City Council concerning the housing of horses at her residence. Her residence is zoned residential. The minutes for that meeting read in pertinent part as follows:
Citizen Agnes Fouarge presented a letter from some of the property owners stating they do not have a problem with her horses being kept on her property, located a [sic] 706 2nd Avenue South. She received a building permit in 2002 to place a fence on her property where her horses would be kept for short periods of time. After a complaint of the horses being there for over a week she approached the council asking for an extension because her pastureland has been recently reseeded.
Motion by Fort second by Faltinson to allow horses to be there temporarily and through the summer months only while her pasture is growing and only on a temporary basic [sic]. Ayes: Faltinson, Greene, Fort. Nays: Nelson, Richard. Motion carried.
Dakota City City Council Minutes, April 14, 2004, Defendants' App. at 48.
On April 28, 2004, the Dakota City City Council held a special session to revisit its decision to permit Fouarge to house horses at her residence. The minutes of that meeting read in pertinent part that:
This meeting was called to rescind a motion that was made at the April 14, 2004 council meeting, where under citizens, Agnes Fouarge requested having horses on her property located at 706 2nd Avenue South. Since she was not listed on the agenda no action should have been take [sic].
Motion by Fort second by Faltinson to rescind the motion made at the April 14, 2004 meeting, allowing horses to be kept on her property temporarily, for short periods of time, during the summer months while the regular pastureland is growing, after being reseeded. All ayes. Motion carried.
The Council felt that [sic] on the April 14, 2004 meeting they were not given all the facts and caught off guard. She did apply for a building permit in 2002 to have a fence built with no mention of it being an electric fence or that she had intentions of horses being there for more than a few hours at a time, so she could work with them. Safety and health issues and being in a residential zone were discusses [sic].
After a lengthy discussion several motions were made and died because of no second.
Motion by Richard second by Nelson to deny Agnes Fouarge from keeping horses on her property. Ayes: Nelson, Richard, Faltinson. Nay: Fort. Motion carried.
Counsel also approved to allow her two (2) weeks, from this date, to have her horses removed from her property, located at 706 2nd Avenue South.
Dakota City City Council Minutes, April 28, 2004, Defendants' App. at 51.
On May 12, 2004, the issue of the Dahlstens having a pot-bellied pig at their residence was discussed at the Dakota City City Council meeting.
How the Dakota City Council learned of Sid's presence is unclear from the summary judgment record. Defendants assert that during the course of the April 12, 2004 Dakota City Counsel meeting, Fouarge mentioned that her neighbor, Frank Dahlsten, had a pot-bellied pig at his residence. The council minutes for that meeting, however, do not reflect that Sid's presence in Dakota City was brought up. In any event, it is clear that Sid's presence at the Dahlsten residence was addressed for the first time at the May 12, 2004, Dakota City City Council meeting.
As a result, on May 13, 2004, a letter was sent from David Lee, as Mayor of Dakota City, to Frank and Kim Dahlsten which reads in pertinent part:
I
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