Sometimes landowners, especially in small towns, tend to ignore city ordinances when building and/or placing structures either on their property or adjacent to it. Often, public officials in these small communities either tend to not enforce existing ordinances or enforce them inconsistently. But, if a city chooses to enforce a restriction against obstructing a public right-of-way, must the city show that the obstruction interferes with travel or causes some sort of damage? That was the issue in this case.
The defendants owned a residence in Cumming and built two brick lampposts adjacent to their driveway on the public right-of way. The city notified the defendants that the lampposts violated a city ordinance barring the use of the public right-of-way in any manner that would obstruct its use or maintenance. The city council ordered the landowners to remove the lampposts, but the landowners refused. The city then sued for a declaration that the lampposts were a public nuisance and for an order directing the landowners to remove the lampposts, but the trial court refused. On appeal, the court reversed. Under Iowa law, a city need not show that a structure might increase accidents or danger to the public in order to have a structure declared a nuisance. That’s been the longstanding rule. Even if a structure causes little or no damage and the cost of removal to the landowner would be great, Iowa towns are entitled to an unrestricted right of possession and control of their streets. So, the lesson for landowners is clear - pay attention to town ordinances, including set-back requirements from a public right-of-way. The cost of noncompliance could be high. City of Cumming v. Smith, No. 6-256/05-1533, 2006 Iowa App. LEXIS 486 (Iowa Ct. App. May 24, 2006).