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Madison County v. Patterson

Court of Appeal of Iowa

May 30, 2013

MADISON COUNTY, an Iowa County, Plaintiff-Appellant/Cross-Appellee,

         Appeal from the Iowa District Court for Madison County, Brad McCall, Judge.

         Appeal and cross appeal from the district court order dismissing Madison County's claims and counterclaims of Patterson and Phoenix.

          James E. Brick, Billy J. Mallory, and Patrick T. Burk of Brick Gentry, P.C., West Des Moines, and Patrick D. Smith of Bradshaw, Fowler, Proctor & Fairgrave, P.C. for Madison County, Iowa.

          Thomas D. Hanson and Michael D. Ensley of Hanson, Bjork & Russell, L.L.P., Des Moines, for Dan Patterson and Phoenix C & D Recycling.

          Thomas J. Miller, Attorney General, and David L. Dorff and David R. Sheridan, Assistant Attorneys General, for State of Iowa and Iowa Department of Natural Resources (DNR).

          Heard by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

          EISENHAUER, C.J.

         Madison County appeals from the trial court ruling dismissing its claims against a construction and demolition recycling company (Phoenix), a landowner (Patterson), and the department of natural resources (DNR). It claims the court erred in ruling (1) the court had jurisdiction to reverse the decision of the county zoning administrator, (2) Phoenix and Patterson were not required to obtain a conditional use permit, (3) the DNR had authority to make a "beneficial use determination" concerning the solid product from Phoenix, (4) the beneficial use determination met administrative code requirements, and (5) the material deposited on Patterson's land met the requirements of the beneficial use determination. On cross-appeal, Phoenix contends the court erred in denying its abuse of process claim. Patterson contends the court erred in dismissing its slander of title claim for failure to prove malice. We affirm on appeal and on cross appeal.

         I. Background Facts and Proceedings

         Phoenix recycles construction and demolition waste. One of its products, land abatement material (LAM), is composed of ground up, non-hazardous waste remaining after sorting and screening the construction and demolition debris it receives. In 2006 Phoenix applied for and received a beneficial use designation (BUD) from the DNR to use its product to fill a ravine on Patterson's agricultural land in Madison County and improve the condition of the site for grazing cattle. When Madison County learned of the plan, its zoning administrator notified Phoenix the project met the zoning definition of a dump and Phoenix needed to obtain a conditional use permit to proceed. Phoenix disagreed, contending agricultural land was exempt from county zoning ordinances.

         The county obtained an ex parte temporary injunction to prevent Phoenix from proceeding. Following a hearing, the court dissolved the injunction, finding the county was unlikely to prevail in its claim Madison County's zoning ordinance applied to the project.

         Between the July 2006 ruling on the injunction and March 2008, both the fill operation and the county's lawsuit continued. The county's petition was amended numerous times, adding defendants including the DNR. By the time of trial in October 2011, the county's petition included claims the DNR violated administrative code provisions both in issuing and in enforcing the BUD, Phoenix and Patterson violated the county's zoning ordinances and the Iowa Code provisions concerning dumping solid waste, Phoenix and Patterson violated the terms of the BUD, and Phoenix and Patterson maintained a nuisance. Phoenix and Patterson's counterclaims included abuse of process and slander of title.

         As the fill operation proceeded, the DNR inspected the site several times and responded to complaints the LAM contained materials not permitted by the BUD and the LAM was not being mixed with clean fill dirt as required. In May 2007 the DNR notified Phoenix it did not intend to renew the BUD when it expired in July. The notice stated, "based on the frequency of site visits that have resulted in further action on your part, it has become apparent that this project requires constant oversight from the Department. Beneficial use projects of this type should not warrant this level of attention."

         Phoenix promptly filed a formal request for renewal of the BUD, which the DNR denied. Phoenix filed an administrative appeal, which started a contested case proceeding. By operation of law, Phoenix could continue its fill operation while the contested case was pending. In February 2008 Phoenix and the DNR stipulated to entry of an administrative consent order to terminate the BUD. The fill operation ended in March 2008, but Phoenix had ongoing responsibility to stabilize the fill site in compliance with the original BUD requirements.

         In the period between March 2008, when the fill operation ended, and the trial in October 2011, the DNR inspected the site several times and sent notices to Phoenix and Patterson concerning failure to stabilize the site. Deficiencies included exposed LAM, lack of vegetative cover, ...

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