Bill Text: IA HF2111 | 2017-2018 | 87th General Assembly | Introduced
Bill Title: A bill for an act relating to controversies involving fence viewers. (See HF 2340.)
Sponsorship: Partisan Bill (Republican 1)
Status: (Introduced - Dead) 2018-02-20 - Withdrawn. H.J. 326. [HF2111 Detail]
Download: Iowa-2017-HF2111-Introduced.html
House File 2111 - Introduced HOUSE FILE BY HEARTSILL A BILL FOR 1 An Act relating to controversies involving fence viewers. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 5534YH (6) 87 da/jh PAG LIN 1 1 Section 1. Section 359.17, subsection 1, Code 2018, is 1 2 amended to read as follows: 1 3 1. The board of township trustees in each township shall 1 4 consist of three registered voters of the township. However, 1 5 in townships with a taxable valuation for property tax purposes 1 6 of two hundred fifty million dollars or more, the board of 1 7 township trustees shall consist of five registered voters 1 8 of the township. The trustees shall act as fence viewers 1 9 as provided in chapter 359A and shall perform other duties 1 10 assigned them by law. The board of trustees shall meet not 1 11 less than two times a year. At least one of the meetings shall 1 12 be scheduled to meet the requirements of section 359.49. 1 13 Sec. 2. NEW SECTION. 359A.2A Fence viewers == township 1 14 trustees == authority == conflict of interest. 1 15 1. The trustees of the township where a controversy arises 1 16 under this chapter shall serve as fence viewers. The fence 1 17 viewers shall have authority to hear and decide all questions 1 18 related to the controversy as provided in this chapter. 1 19 2. a. A fence viewer who may have a conflict of interest in 1 20 deciding a question related to the controversy must disclose 1 21 the possible conflict of interest to the parties and the other 1 22 fence viewers prior to the fence viewers participating in the 1 23 matter by conducting a hearing or making a decision under 1 24 section 359A.4. 1 25 b. A fence viewer who has a conflict of interest in deciding 1 26 a question related to the controversy is disqualified from 1 27 participating in the matter. The disqualification shall be 1 28 made by the election of the fence viewer or unanimous vote 1 29 of the fence viewers who do not have a conflict of interest 1 30 in the controversy. However, if three or more fence viewers 1 31 do not have a conflict of interest in the controversy, the 1 32 disqualification shall be made by a majority vote of those 1 33 fence viewers. A declaration of the conflict of interest shall 1 34 be sent to the board of supervisors of each county where the 1 35 party's adjoining property boundary subject of the controversy 2 1 is located. 2 2 3. A conflict of interest exists when a fence viewer is 2 3 asked to make a determination that would directly affect the 2 4 personal or financial interests of the fence viewer or an 2 5 immediate family member of the fence viewer. The immediate 2 6 family member shall be limited to any of the following: 2 7 a. A spouse. 2 8 b. A child, stepchild, grandchild, parent, stepparent, 2 9 grandparent, sibling, stepsibling, half sibling, aunt, uncle, 2 10 niece, or nephew. 2 11 c. The spouse of any individual described in paragraph "b". 2 12 4. Upon the disqualification of a fence viewer, the board of 2 13 supervisors shall appoint a qualified substitute fence viewer 2 14 only for purposes of deciding the controversy. However, this 2 15 subsection does not apply if the township clerk selects a fence 2 16 viewer as provided in section 359A.14. 2 17 5. The board of supervisors may adopt an ordinance providing 2 18 for any of the following: 2 19 a. Other circumstances in which a trustee may have a 2 20 conflict of interest. 2 21 b. Procedures for providing notice of a conflict of 2 22 interest, the disqualification of a fence viewer who has 2 23 a conflict of interest, or the appointment of a qualified 2 24 substitute fence viewer due to the conflict of interest. 2 25 6. Notwithstanding other provisions in the section to 2 26 the contrary, a fence viewer who may or does have a conflict 2 27 of interest in a controversy may participate in the matter, 2 28 including by hearing and deciding all questions related to the 2 29 controversy, if each party to the controversy signs a waiver. 2 30 The waiver shall state that the party has been notified of the 2 31 fence viewer's conflict of interest and agrees to the fence 2 32 viewer's participation in the matter. The waiver shall be 2 33 attached to the order issued pursuant to section 359A.4. 2 34 Sec. 3. Section 359A.3, Code 2018, is amended to read as 2 35 follows: 3 1 359A.3Powers of fence viewersNotice and hearing. 3 2 The fence viewers shallhave power to determine any 3 3 controversy arising under this chapter, upon givinggive five 3 4 days' notice in writing tothe opposite party orall parties, 3 5 prescribingto the controversy. The notice shall prescribe 3 6 the time and place ofmeeting to hear and determine the 3 7 matter namedthe hearing to decide any and all matters that 3 8 are part of the controversy as described insaidthe notice. 3 9 Upon request of any landowner, the fence viewers shall give 3 10suchthe notice to all adjoining landowners liable for the 3 11 erection, maintenance, rebuilding, trimming, or cutting back, 3 12 or repairing of a partition fence, or to pay for an existing 3 13 hedge or fence. The notice must include the names of the fence 3 14 viewers and state whether a fence viewer disclosed a possible 3 15 conflict of interest or whether a substitute fence viewer was 3 16 appointed due to a fence viewer's disqualification pursuant to 3 17 section 359A.2A. 3 18 Sec. 4. Section 359A.4, Code 2018, is amended to read as 3 19 follows: 3 20 359A.4DecisionHearing == decision == order == deposit. 3 21 1. Atsaidthe time and place described in section 359A.3, 3 22 the fence viewers shall meet to hear anddetermine bydecide 3 23 the controversy. The fence viewers shall issue a written order 3 24 that specifies the obligations, rights, and duties of the 3 25 respective partiesin such matter, and. 3 26 2. a. If the fence viewers determine the erection of a 3 27 fence may be unfeasible in any location which constitutes the 3 28 adjoining parties' property boundary, the fence viewers shall 3 29 conduct a site evaluation. The fence viewers may request 3 30 assistance by the county engineer in the county where the 3 31 adjoining properties' boundary is situated. The determination 3 32 may be based on any of the following: 3 33 (1) Topography. 3 34 (2) Terrain. 3 35 (3) Terraces. 4 1 (4) Land slope. 4 2 (5) Unstable ground. 4 3 (6) The presence of surface water, drainage systems, 4 4 sinkholes, or water wells. 4 5 (7) Easements. 4 6 (8) Utilities. 4 7 (9) Available area. 4 8 b. If the fence viewers determine the erection of a fence 4 9 is unfeasible as provided in the site evaluation, the fence 4 10 viewers shall assist the parties in reaching an agreement as 4 11 provided in sections 359A.12 and 359A.13. However, if the 4 12 parties cannot reach such agreement within sixty days after the 4 13 site evaluation is completed, the fence viewers shall order 4 14 the fence's erection. The fence shall be erected as otherwise 4 15 provided in this section, except for any location identified 4 16 as unfeasible in the site evaluation. For that location, the 4 17 fence viewers shall order the fence to be erected at the most 4 18 feasible location on the property of an adjoining owner that is 4 19 closest to that adjoining owner's property boundary. 4 20 3. a. The order shall assign to each owner the part which 4 21 the owner shall erect, maintain, rebuild, trim or cut back, 4 22 or pay for, and fix the value thereof, and prescribe the time 4 23 within which the same shall be completed or paid for, and, in 4 24 case of repair, may specify the kind of repairs to be made. 4 25 b. If the fence is not erected, rebuilt, or repaired within 4 26 the time prescribed in the order, the fence viewers shall 4 27 require the complaining landowner to deposit with the fence 4 28 viewersa suman amount of money sufficient to pay for the 4 29 erecting, rebuilding, trimming, cutting back or repairing such 4 30 fence together with the fees of the fence viewers and costs. 4 31 Such complaining landowner shall be reimbursed as soon as 4 32 the costs and fees assessed against the party in default are 4 33 collected as provided in section 359A.6. 4 34 4. The order shall include the names of the fence viewers. 4 35 The order shall state whether a fence viewer disclosed a 5 1 possible conflict of interest, and whether a substitute fence 5 2 viewer was appointed due to a disqualification pursuant to 5 3 section 359A.2A. Any waiver of a conflict of interest signed 5 4 by a party shall be attached to the order. 5 5 EXPLANATION 5 6 The inclusion of this explanation does not constitute agreement with 5 7 the explanation's substance by the members of the general assembly. 5 8 GENERAL. This bill amends provisions in Iowa's fence law 5 9 (Code chapter 359A) that in part governs the construction 5 10 (erection) or maintenance of fences existing on the property 5 11 boundary between land of adjoining owners (sometimes referred 5 12 to as partition fences), in either circumstances. The first 5 13 circumstance involves a controversy between the owners that 5 14 results in an order being issued by the board of trustees 5 15 of the township where the property boundary is located, who 5 16 assume the title of fence viewers (Code sections 359A.3 through 5 17 359A.11 and Code section 359A.22). The second circumstance 5 18 involves a private agreement entered into by the owners which 5 19 is recorded in the county where the township is located (Code 5 20 sections 359A.12 and 359A.13). 5 21 BILL'S PROVISIONS == CONFLICTS OF INTEREST. The bill 5 22 provides for a fence viewer who has a conflict of interest 5 23 involving any question related to the controversy: If the 5 24 fence viewer may have a conflict of interest, the fence viewer 5 25 must make disclosure of the possible conflict of interest to 5 26 the parties and other fence viewers. If the fence viewer 5 27 has an actual conflict of interest, the fence viewer must 5 28 be disqualified either at the fence viewer's election or by 5 29 vote of the other trustees. Either action must be described 5 30 in the fence viewers' notice to the parties and order. A 5 31 conflict of interest occurs when a fence viewer is asked to 5 32 make a determination that would directly affect the personal 5 33 or financial interests of the fence viewer or immediate family 5 34 member. If the trustee is disqualified, the county's board 5 35 of supervisors must appoint a substitute (unless the township 6 1 clerk selects a fence viewer in cases in which the adjoining 6 2 property is located in more than one township). The board 6 3 of supervisors may also adopt an ordinance providing for 6 4 additional circumstances which create a conflict of interest 6 5 and procedures for the disqualification or replacement of a 6 6 fence viewer. The bill provides that the fence viewer may 6 7 participate in the matter if the parties to the controversy are 6 8 notified of the conflict and sign a waiver. 6 9 BILL'S PROVISIONS == ERECTION OF FENCES BASED ON A 6 10 DETERMINATION OF UNFEASIBILITY. The bill provides that the 6 11 fence viewers may determine that the erection of a fence on 6 12 the property boundary between the adjoining properties is 6 13 unfeasible pursuant to a site evaluation conducted by the fence 6 14 viewers. The determination may be based on a characteristic 6 15 of the land (e.g., land slope), the presence of water (e.g., 6 16 located in a floodplain), some prior right (e.g., an easement), 6 17 or a suitable area is unavailable. In that case, the trustees 6 18 must assist the parties in reaching an agreement or if that 6 19 fails take account of the land's characteristics in the order. 6 20 The order shall require the fence be erected at a feasible 6 21 location that is closest to the adjoining party's property 6 22 boundary. 6 23 BACKGROUND. The owner of property has a right to erect a 6 24 fence on the property boundary between the owner's property 6 25 and an adjacent owner (Code section 359A.16). A controversy 6 26 requiring participation by a township's fence viewers 6 27 may be triggered by an owner demanding that the adjoining 6 28 owner or adjoining owners share in the costs of erecting, 6 29 maintaining, or repairing the fence. The fence viewers must 6 30 provide notice to each adjacent owner that they are parties 6 31 to the controversy. The fence viewers act as adjudicators, 6 32 by determining the obligations, rights, and duties of the 6 33 respective parties, including contributions (payments) which 6 34 must be set forth in an order and be assessed and collected as 6 35 ordinary taxes (Code section 359A.6). The order is subject 7 1 to appeal in district court (Code sections 359A.23 through 7 2 359A.25). LSB 5534YH (6) 87 da/jh
