Cy pres applicable although the beneficiary caused the impossibility

The donors created a perpetual trust to create and maintain a flower garden at a specific site in a city park as a memorial to a family member.

More than thirty years after donors’ deaths, the city removed the garden to make way for an economic development project and asked the court to modify the trust by allowing the city to recreate the garden at a nearby site.

In an opinion thoroughly examining the law of cy pres in Iowa as codified by statute, the court in Kolb v. City of Storm Lake, 736 N.W.2d 546 (Iowa 2007), held that the trust terms did not prevent the application of cy pres, that the trust was charitable, that the donors had a general charitable intent, that carrying out the original terms of the trust had become impossible, that the city’s actions created the impossibility but that the city’s actions were “natural and unavoidable” given the importance of economic development and that cy pres was therefore appropriate.