Fence View Was Not a Closed Session of Township Trustees – Open Meetings Law Inapplicable

July 31, 2008 | Roger McEowen

Fence law is an important aspect of rural life.  Specific rules apply to building and maintaining partition (border) fences and, on that point, Iowa law generally provides that adjacent owners share responsibility equally.  In many instances, adjoining landowners agree between themselves on issues related to building and maintaining fences.  However, if an agreement cannot be reached the township trustees, acting as the fence viewers, can be called to make a determination.  But, if they are asked to make a view, specific rules apply to appealing their decision.  That’s what was involved in this case.  

The parties owned adjoining 80-acre tracts.  A half-mile, north-south fence separated the parcels.  In the mid-1990s the fence viewers made a view of the fence and assigned the north three-fourths of the fence to one landowner, and the south one-quarter to the other party – the plaintiffs in this case.  Normally, the allocation of responsibility would have resulted in an equal portion of the fence being assigned to each party, but there was a water gap and a ditch on the south one-quarter of the fence.  Unfortunately, the fence viewers’ decision did not establish any time-frame for repairing the fence over the water gap when it was washed out or otherwise in disrepair.  So, the party responsible for the northern portion of the fence requested the fence viewers to more clearly define the other landowner’s responsibility for maintaining the fence.  

The fence viewers examined the fence, particularly the water gap, and made a decision concerning its further maintenance.  The plaintiffs tried to appeal the fence viewers’ decision, but filed too late.  So, they tried to attack the fence viewers’ decision by claiming that the trustees had violated the Iowa open meetings law.  The trial court didn’t buy the argument and dismissed the case.  The plaintiffs appealed, claiming that the trustees decided fence responsibility at a time when they were not allowed to be present.  The Iowa open meetings law says that governmental bodies may hold closed sessions, but only for certain reasons, and only if two-thirds of the members vote for a closed session and public notice is given of the session.  In addition, a final decision must generally be made in open session.  There was no question that the trustees had not complied with the open meeting law.  The question was whether the law applied to the trustees’ action.

A significant question is whether a fence view constitutes a “meeting” to which the open meetings law applies.  Iowa law generally defines a “meeting” that is subject to the open meetings law as a meeting that involves deliberation or action taken upon any matter that is within the scope of the governmental body’s policy-making duties.  The trustees argued that their fence view did not involve policy-making duties, but rather only involved an adjudicative matter.  The court, noted that the trustees’ argument had merit, but didn’t have to decide the issue because the trustees’ had not raised the argument at trial.  As a result, the court decided the case based its review of the trial court’s analysis of the testimony offered at trial.  That evidence, the court was convinced, revealed that while the trustees moved to a shed to discuss the matter, no one was excluded from the conversation and that the conversation was moved to the nearby shed to get out of the wind.  That way, the clerk, who was hearing impaired, could more easily here the conversation, take minutes and write down the decision.  The court was also convinced that much of the decision-making concerning the maintenance of the fence occurred while the trustees and the parties were walking the fence and not exclusively in the shed after the view had been made.  Accordingly, the open meetings law was not violated and the trial court’s judgment was affirmed.  Long v. Grant Township Trustees, No. 8-480/07-1928 (Iowa Ct. App. Jul. 30, 2008).