Fred Vogt v. City of Carter Lake and Carter Lake City Council ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0108
Filed November 6, 2019
FRED VOGT,
Plaintiff-Appellant,
vs.
CITY OF CARTER LAKE and CARTER LAKE CITY COUNCIL,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Greg W.
Steensland, Judge.
Fred Vogt appeals the dismissal of his petition for declaratory judgment
concerning a zoning regulation amendment. REVERSED AND REMANDED.
James L. Pray and Thomas D. Story of Brown, Winick, Graves, Gross,
Baskerville & Schoenebaum, P.L.C., Des Moines, for appellant.
Robert M. Livingston and Kristopher K. Madsen of Stuart Tinley Law Firm
LLP, Council Bluffs, for appellees.
Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.
2
BOWER, Chief Judge.
Fred Vogt appeals from a district court order granting the City of Carter Lake
(City) and Carter Lake City Council’s (City Council) motion to dismiss. Vogt sought
a declaratory judgment to enjoin amending the zoning regulations to allow gaming
facilities in C-2 General Commercial Districts. To the extent the zoning district
applied to property outside of tribal trust property, we find the court had jurisdiction
over the action, and we reverse and remand for further proceedings.
I. Background Facts & Proceedings
On or before April 2000, the Ponca Tribe of Nebraska (“Tribe”), a federally-
recognized Indian Nation, acquired a parcel of their aboriginal land in Carter Lake,
Iowa. In 2007, the land was transferred to the United States to hold in trust for the
benefit of the Tribe. The Tribe and the City approved a cooperative relationship
agreement to address governmental issues and services. In 2009, the parties
amended the agreement; the Tribe agreed to seek changes in zoning regulations
for commercial retail establishments and the City agreed it would not unreasonably
withhold approval.1 The Tribe announced plans to build and operate a gaming
facility on its land.
On June 4, 2018, following a public hearing, the City Council approved a
zoning amendment adding “gaming facilities” to the list of permitted uses in C-2
General Commercial Districts.2 This amendment would allow the Tribe to
1
Vogt did not include as an exhibit to his petition the agreement’s second amendment
entered into on July 30, 2018, approving an interim casino facility on trust property. Vogt
also omitted relevant sections of the City’s Unified Land Development Ordinance in his
petition’s exhibits.
2
The zoning amendment had been considered at City Council meetings on May 14 and
May 21, 2018.
3
construct and operate a casino on trust land in Carter Lake.3 It is unclear from the
record, but the petition implies the C-2 General Commercial District includes land
outside the borders of the Tribe’s trust property. Vogt asserts the City’s
Comprehensive Plan at the time of the amendment prohibited massive
redevelopment, did not contemplate or authorize gaming facilities, and contained
goals “antithetical to a large casino.”
On September 24, Vogt filed suit against the City and City Council seeking
a declaratory judgment claiming the zoning amendment violated the City’s
Comprehensive Plan, as well as a writ of mandamus compelling the City to enforce
its Cooperative Agreement with the Tribe and limit use of the trust property to a
tobacco shop. Vogt also filed a motion for temporary injunction seeking to prevent
the City and City Council from authorizing or permitting construction or operation
of a gaming facility within Carter Lake, regardless of the zoning status.
On October 23, the City filed a motion to dismiss and opposition to the
temporary injunction. The City stated Vogt’s claims were preempted by federal
law and, consequently, the court lacked jurisdiction. It also asserted a writ of
certiorari was the exclusive means to challenge the zoning decision, which was
time-barred. On November 19, Vogt voluntarily dismissed his request for a writ of
mandamus in light of an amendment to the Cooperative Agreement predating his
petition, which approved a casino facility.
3
The casino was approved by the National Indian Gaming Commission in December 2007
and has been the subject of a lawsuit in federal court. See Nebraska ex rel. Bruning v.
U.S. Dep’t of Interior, 625 F.3d 501 (8th Cir. 2010).
4
The district court found Vogt’s claims sought to interfere with the Tribe’s
ability to conduct gaming on sovereign land and, therefore, were preempted by
federal law and regulation. The court granted the City and City Council’s motion
to dismiss. Vogt appeals.
II. Standard of Review
“[W]e review a district court’s ruling on a motion to dismiss for correction of
errors at law.” Geisler v. City Council of Cedar Falls, 769 N.W.2d 162, 165 (Iowa
2009). The court cannot consider factual allegations contained in the motion or
related documents, but must decide based on the well-pled facts of the petition
viewed “in the light most favorable to the plaintiff with doubts resolved in that party’s
favor.” Id. (citation omitted). “The purpose of the motion is to test the legal
sufficiency of the petition.” Id.III. Analysis
Vogt’s petition for declaratory judgment asked the court to consider if the
City Council’s addition of “gaming facilities” to the City’s C-2 zoning areas was in
violation of the Comprehensive Plan. The district court considered this challenge
solely in the context of the Tribe’s trust property.
Vogt claims the court should not have considered the application of federal
law because the status of the land was still in litigation and the court could not
make an assumption the gaming facility is on tribal lands. Paragraph 2 of the
petition specified the Tribe’s “intent to construct a massive gaming facility on trust
property.” The petition and its exhibits do not include any facts relating to the
ongoing litigation of the land’s status. Based on the facts alleged in the petition
and its exhibits, we first consider the regulation change’s control over the proposed
5
gaming facility on the Tribe’s property held in trust by the United States, and then
if the regulation change violates the City’s Comprehensive Plan as to C-2 Zoning
Districts within Carter Lake not on the Tribe’s land.
Unless the Secretary of the Interior or authorized representative has
specifically provided otherwise,
none of the laws, ordinances, codes, resolutions, or other regulations
of any state or political subdivision thereof limiting, zoning, or
otherwise governing, regulating, or controlling the use or
development of any real or personal property . . . shall be applicable
to any such property leased from or held or used under agreement
with and belonging to any Indian or Indian tribe, band, or community
that is held in trust by the United States.
25 C.F.R. § 1.4(o); see Connecticut ex rel. Blumenthal v. U.S. Dep’t of Interior, 228
F.3d 82, 85 (2d Cir. 2000 (“Land held in trust is generally not subject to . . . local
zoning and regulatory requirements . . . .”).
Vogt offers no legal authority allowing a city to impose its zoning regulations
on property belonging to the Tribe and held in trust by the United States. To the
extent Vogt seeks to impose the City’s zoning regulations and Comprehensive
Plan on the Tribe’s trust property, the district court is correct that federal law
preempts the application.
Notwithstanding, nothing in the petition and its exhibits indicate the C-2
designation includes property outside the boundaries of the Tribe’s trust property.
The petition contests “whether the zoning amendment authorizing ‘gaming
facilities’ in all C-2 Zoning Districts complies with the City’s Comprehensive Plan.”
(Emphasis added.) To the extent the zoning amendment would apply to land not
part of the Tribe’s trust property, it is not preempted by federal law.
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We reverse and remand for the district court to determine whether the
zoning amendment complied with the City’s Comprehensive Plan as applied to C-2
Zoning Districts not part of the Tribe’s trust property.
REVERSED AND REMANDED.