The Midwest Planning BLUZ

by Gary Taylor

City of Des Moines v. Amerson
(Iowa Court of Appeals, April 13, 2011)

On February 5, 2009, the Des Moines city attorney’s office filed a petition alleging Amerson’s garage was structurally unsound and constituted a public nuisance. The petition asserted that the garage should be immediately emptied and the nuisance should be abated at the owner’s expense. The petition further urged that if Amerson did not abate the nuisance in the time ordered by the court that the city be authorized to enter Amerson’s property and demolish the structure.

A process server unsuccessfully tried to serve Amerson five times between February 24, 2009, and May 12, 2009. On May 26, 2009, the city asked for permission to serve Amerson by the alternative means of publication, which the court granted.

On June 9, 2009, Amerson filed a pro se pre-answer motion, asking to dismiss the action and to disqualify the judge. She alleged that the city had been harassing her for years through the use of its nuisance ordinances. On July 10, 2009, the district court denied the motion to dismiss and the motion for recusal.

On March 1, 2010, Amerson filed a second pre-answer motion to dismiss, alleging—among other things—that her garage was demolished in late June 2009. Amerson also attached to the motion an invoice sent to her by the city on February 18, 2010, demanding that she reimburse the city for $480 in charges incurred as a result of its administrative or legal action taken against her property. The charges included $200 for legal inspections; $30 for photographs; $125 for a title search; $25 for a service fee; and $100 in court costs. The invoice explained that her failure to pay the costs by March 20, 2010, would result in an assessment to Amerson’s property.

On March 3, 2010, the city voluntarily dismissed its cause of action, noting that Amerson’s property was “brought into compliance” with the municipal code.  The city, however, still pursued collection of costs and fees associated with the cause of action.  Amerson challenged the district court’s assessment of those costs against her.

Iowa Code 625.1 provides that costs “shall be recovered by the successful against the losing party.” Iowa Code 625.11 states that “[w]hen a plaintiff dismisses the action . . . judgment for costs may be rendered against such plaintiff . . . .” The Court of Appeals observed that the general rule in Iowa has long been that when a plaintiff voluntarily dismisses the suit, it is error to require the defendant to pay costs, but that does not apply when the plaintiff dismisses the lawsuit solely because the purpose of the suit has been achieved. In this public nuisance action, the city was the successful party because Amerson abated the nuisance by demolishing her garage “while the suit was pending and most likely because the suit was pending.”  The Court of Appeals concluded that it was proper for the district court to tax Amerson with the costs associated with the court action.

Iowa Court of Appeals, Nuisance court costs, Iowa Court of Appeals, Nuisance abatement

by Gary Taylor

City of Bettendorf v. Scott County Auditor
(Iowa Court of Appeals, April 13, 2011)

The members of the Bettendorf Park Board are elected by the voters in the City of Bettendorf.  In January 2010, a vacancy on the Board occurred due to the resignation of a member whose four-year term of office was to end December 31, 2011. The City Council filled the vacancy by appointing a new member on February 11, 2010, who was to serve until the next “pending election” as defined in Iowa Code 69.12. The City and the County Auditor disagreed over whether the next pending election was the upcoming general election in November 2010 or the next municipal election in November 2011. On April 21, 2010, the City filed a petition for a declaratory judgment seeking resolution of the disagreement. On June 5, 2010, the district court found that the use of “pending election” in section 69.12 implied elections for which Bettendorf citizens are the exclusive voters for an office, and consequently the new member was not required to stand for election until the next municipal election scheduled for November 2011. The County Auditor appealed.

The Court of Appeals disagreed with the district court’s interpretation of section 69.12. The Court of Appeals focused on section 69.12(1)(a)(1), which explains that a vacancy must be filled, “at the next pending election if it occurs…seventy-four or more days before the election, if it is a general election.”  The Court concluded “a plain reading of the whole statute means a vacancy that occurs the required number of days before a general election must be filled at the next general election. If, as the City argues, the next pending election did not include general elections, this phrase [in the statute] would be meaningless.”

Elections, Iowa Court of Appeals Elections, Iowa Court of Appeals, municipal vacancies

by Melanie Thwing

Malin (City Administrator) and the City of Davenport v. Iowa District Court for Scott County
(Iowa Court of Appeals, February 23, 2011)

In July, 2009 Evernew Concept, L.L.C. applied for a Class C beer permit for its store, “Beer Mart,” to allow the sale of beer and wine on a carry-out only basis. The application was approved by the police and fire departments and the City’s building division.  Under section 17.48.020(B)(b)(3) of Davenport’s municipal code a special use permit from the zoning board of adjustment (ZBA) is required for carry-out liquor sales, except for grocery stores, pharmacies, and restaurants.  At a September 2009 ZBA meeting Mazhar stated that the business would be operated along the same lines as its previous owner, which was not a grocery store.  Evernew was granted a one-year special use permit. Later that month the City Administrator Craig Malin sent a letter to Evernew “administratively rejecting” the application.  He stated that a Class C beer permit was, “not allowed in the North Brady URTE corridor…”

Evernew requested that the liquor license application be placed on the next city council agenda, and when this was not granted Evernew filed a petition in district court for a temporary injunction to prevent the city from refusing to submit the application to the city council, and a writ of certiorari declaring as illegal the actions of the city administrator. The City filed a motion to dismiss the petition claiming that Evernew never submitted a valid application to the city council.  An affidavit was filed with the district court by Evernew that stated that its intentions were to have more than fifty percent of profit come from the sale of food and food products.  The district court granted the temporary injunction, finding Evernew likely to succeed on the merits based on its “uncontroverted affidavit [which] provides evidence to the Court that its intention to operate a grocery store on these premises more likely than not qualifies it for a carryout beer and wine permit under Iowa Code §123.129.” After more procedural wrangling, the case ended up before the Iowa Court of Appeals.

The Court of Appeals concluded that under Iowa Code § 123.32(2) and the Davenport City Code it is the city council, and not the city administrator, with the authority to act on liquor licenses.  Given this the district court was correct in sustaining the writ of certiorari that found the city administrator’s actions illegal.  The Court of Appeals concluded, however, that the district court erred in granting the temporary injunction effectively requiring the city council to hear Evernew’s application.  Temporary injunctions are intended to preserve the status quo, and granting the injunction in this case requires the city council to address an application that may or may not have been filed properly.

Iowa Court of Appeals, Liquor licenses, Procedural Issues Iowa Court of Appeals, Liquor licenses

by Melanie Thwing

Small v. City of Milton
(Iowa Court of Appeals, February 23, 2011)

In 2004, Jimmie Small paid five hundred dollars for a parcel of land in Milton, Iowa. He then placed an RV on the property and began living out of it. In 2005 Small requested that Rathbun Regional Water Association, Inc (RRWA) connect his RV to their water distribution system. RRWA agreed to do so but Small would still be responsible for the $1,065.37 cost.  He did not connect to RRWA.

In August of 2005 Small requested that the City connect his parcel to the water and sewer systems. This request was denied because it was not practical to connect his property to the systems due to distance and private properties that would be crossed in the process.

After filing unsuccessful complaints with the Iowa Civil Rights Commission and the Iowa Utilities Board, Small filed a petition with the district court in July of 2007. He argued that both the City and RRWA had entered into a public utility contracts as a condition of receiving federal funding. Small claimed that these contracts contained certain nondiscrimination covenants that were breached when both denied access to water and sewer based on his disability. He sought an order to provide the connections.

In March 2008 Small then filed for sanctions against the City for a failure to comply with discovery requests. Although he had received the requested documentation he claimed it was untimely and the certificates displayed the wrong dates. A public hearing for the matter was set for April and the morning of the hearing Small filed for a motion of continuance. This motion was denied, and after Small failed to appear at the afternoon hearing the motion for sanctions was dismissed.

Ultimately the City and RRWA moved for summary judgment in district court, which was granted when the court found no evidence that the City or RRWA discriminated against Small. Small then appealed this decision, but moved to postpone the filing of the proof brief with the Supreme Court claiming that the judicial record from the district court was incorrect. The Supreme Court allowed him to file a motion with the district court to modify the record. Ultimately the district court found that Small was rearguing his original claim and he should proceed with the appeal.

Small argued to the Court of Appeals that the district court was incorrect when they failed to find any factual reasons on the motion to amend the record, on granting summary judgment, and when denying this motion for sanctions. Under Iowa Court Rule 21.29(1)(d) the Court of Appeals upheld the district court’s decision.

Iowa Court of Appeals infrastructure installation, Iowa Court of Appeals, public services

by Melanie Thwing and Gary Taylor

Binns v. Stewart
(Iowa Court of Appeals, August 25, 2010)

Don and Brenda Stewart own lot 19 and Mark and Grace Binns own lot 20 in Hidden River Heights Subdivision Part III in Cedar County, Iowa.  The lots are located in a cul-de-sac that is subject to restrictive covenants. On the Stewart’s lot (19) runs a private blacktop driveway that provides access to the subdivision’s well. The Stewarts acquired their land from Wilton Motors, Inc and the deed included two easements. One gave Hidden River Heights Homeowners Association (HOA) an easement of ingress and egress over the private drive of lot 19, up to #1 Well and required the HOA to maintain that portion of the driveway.  The HOA thus built a blacktop service road across the property subject to this easement.  The service road was approximately 10 feet from the boundary between lots 19 and 20  The second easement – the subject of the litigation – states that owners and successors to Lot 20 will share access to that same access road.

Prior to acquiring lot 19 the Stewarts offered an addendum to the warranty deed that stated Lot 20 will share access to the driveway. The owners of lot 20 then built an access driveway directly from the property line, across the 10-foot strip to the blacktop access road. 

When the Binns purchased lot 20 they wanted to change the angle of the access driveway. The Stewarts argued against this arguing that the easement only allowed the owners of Lot 20 to travel from the cul-de-sac to the driveway, to the well, without access to lot 20.  Binns filed a declaratory judgment motion in district court for the use of the easement.

In district court the Stewarts argued that the easement was ambiguous and therefore unenforceable. Looking to the addendum that was offered by them prior to purchasing, the court held that the addendum granted the owners of Lot 20 the right “to access the road from any portion of their lot across the road from any portion of their lot across the 10-ft. space between the Lot 19 boundary and the blacktop road.”

The Stewarts had also argued that the easement was in contravention of the restrictive covenants. The district court dismisses this, stating that the Stewarts had allowed to easement in their deed and therefore did not have the right to complain that it is in violation. In all totality, the court concluded that the owners of Lot 20 have direct access to the service road that leads from the cul-de-sac to the well and serves as the driveway for lot 19, and that the owners of Lot 19 could not create any obstruction that would block this. It allowed the owners of Lot 20 to build a road from the boundary of Lot 20 to the service road.

The Stewarts appeal to the Iowa Court of Appeals, first arguing the easement was not ambiguous and that the easement should be enforced as written, without consideration of the offer to purchase. This easement was created by grant, and in Iowa the grantor’s intent is controlling and applied by general contract principles. The Stewarts’ interpretation of the easement is unreasonable, because the language in the easement has a clear intent to an easement over the 10-ft. in question. The Stewarts’ interpretation would render the easement completely useless to the owners of lot 20.  The only reasonable reading can come from allowing Lot 20 to share access to the drive as well as the land between the two lots necessary to access the driveway.

Finally, the Stewarts argue that the district court had effectively expanded the easement because their ruling does not limit where the owners of Lot 20 can access the driveway on Lot 19’s property. The Binns argue that the easement simply does not limit the area under the easement as the blacktop portion of the easement way, but that they also have the right to build an access to the blacktop at any point along the way. The Binns argued they were not seeking an expansion of the easement, they were merely asking the court to define their right so they could continue with the construction of their driveway. The court could not find any reason to disagree with this. The district court was correct in their ruling.

Easements, Iowa Court of Appeals easement by express grant, Iowa Court of Appeals

by Gary Taylor

Malone et al. v. Flattery et al.
(Iowa Court of Appeals, February 9, 2011)

In 1993, the Flatterys entered into a contract to sell their farmland to Stanek Cattle Company.  Under the terms of the contract, the Flatterys retained the acre of land on which the house was located, and Stanek acquired a right of first refusal to that one-acre tract.  In 1996 the Flatterys executed a warranty deed to Stanek transferring title in satisfaction of the real estate contract.  One year later, in March 1997, Stanek transferred the farmland William and Sharon Malone.  Stanek’s warranty deed stated the farmland was being transferred, along with the “right of first refusal to purchase the [homestead] on the terms provided in the contract [between the Flattery’s and Stanek].”  The Flatterys eventually transferred the one-acre homestead by warranty deed to the Cralls in 2004.  Then on May 14, 2009, the Malones filed a petition against the Flatterys, their children, and the Cralls. Their petition sought to rescind the deeds transferring the homestead, to quiet title to the homestead, and to enforce the right of first refusal through specific performance by allowing them to purchase the homestead.  Following a hearing and briefing, the district court granted summary judgment in favor of the Flatterys, their children, and the Cralls. The court held that rights of first refusal were presumed personal unless express language confirmed an intent to the contrary. Referencing language that had been included in the original contract  that gave Stanek an easement over the one-acre parcel, and made that easement “binding on the Sellers’ and Buyer’s personal representatives, distributes, heirs, successors, transferees and assigns.” the court determined “these parties were aware of what language to use in order to make the right of first refusal transferable to a subsequent … owner.”

“Is a right of first refusal in a real estate contract freely assignable, or is it personal to the party who contracts for it unless stated otherwise?”  The Court of Appeals recognized the issue as one never before addressed by Iowa courts. After consulting legal treatises and judicial opinions from other states, the Court of Appeals agreed with the district court and concluded that the right of first refusal is presumed to be personal and is not ordinarily construed as assignable unless there is clear language in the contract showing the parties intended the right be assignable.  The court drew a distinction between a right of first refusal and an option to purchase (which may be assigned absent specific language to the contrary).  “Options generally have a value that can be ascertained; rights of first refusal may not. Because [a right of first refusal’s] very indefiniteness can impede the marketability of real estate, it is logical to construe them narrowly.”

The court could not construe the contract between the Flatterys and the Staneks as containing an intent to permit the assignment of the the right of first refusal.  Accordingly, the Court of Appeals affirmed the district court’s grant of summary judgment in favor of the Flatterys.

Iowa Court of Appeals, Property law Iowa Court of Appeals, real estate contracts, right of first refusal

by Gary Taylor

Gibson v. Hatfield
(Iowa Court of Appeals, December 22, 2010)

The Gibsons and Hatfields own adjoining parcels of land that were once in single ownership.  A steep, wooded bluff runs along the middle of Gibson’s property, and for several years Gibson used a gravel road running across the Hatfield’s property to access the rear portion of her parcel.  Hatfield  purchased his parcel in 2007.  Nothing in the title search, or in representations made by the realtor indicated to Hatfield that Gibson held a recorded easement to use the gravel road, nor that circumstances suggested the existence of an easement by implication. Nevertheless, Hatfield testified that both before and after Gibson filed suit against him, he made written and verbal offers to the Gibsons to let them use the road if they would make a reasonable effort to call him first, and that in the event they could not reach him or it was an emergency, they would have access to a key in a lockbox.

Gibson filed a declaratory action for an easement by implication.  Gibson testified that she and her husband used the gravel road once per week, on average, for the last 31 years, and that the land was inaccessible by vehicle without the use of the gravel road.

The Court of Appeals found insufficient evidence to establish that the prior owners of the adjoining parcel had ever agreed to provide an easement for access of the rear lot. Likewise, the Court found that Gibson did not meet the four-prong test required for establishing an easement by implication. To obtain an easement by implication the benefitting landowner must show (1) separation of title; (2) that the use was obvious and intended to be permanent; (3) that the use is continuous rather than temporary; and (4) that the easement is essential to the beneficial enjoyment of the land.  The Court observed that item (4) is the primary consideration in establishing an easement by implication.  The Court found that automobile access was not “essential to the Gibsons’ beneficial enjoyment of the land.”  Nothing prohibited Gibson from removing trees on her own property to create a lane for automobile access to the rear portion of the parcel.

Easements, Iowa Court of Appeals easement by implication, Iowa Court of Appeals

by Gary Taylor

Galinsky Family Real Estate, LLC v. City of Des Moines Zoning Board of Adjustment
(Iowa Court of Appeals, January 20, 2011)

Big Guy Auto Sales is operated by Daniel James. James rents the property from Gary Galinksy, the owner of Galinsky Family Real Estate, LLC. Galinsky purchased the property at 1717 SE 14th Street in Des Moines in February 2005 and first leased it to Dan Wright of River Edge Auto Sales.  On May 6, 2005, while River Edge Auto Sales was in operation, the city issued an Auto Dealership Zoning Confirmation to Galinsky in regard to the property at 1717 SE 14th Street. The confirmation stated that the property was “zoned properly” and met the standards to be used as a “vehicle display lot” which allowed the owner to obtain a dealership license from the Iowa Department of Transportation. The confirmation also included the following information: “Conditions associated with grandfather rights for auto sales lot: All vehicles for sale as well as customer and employee parking must be conducted from areas of the property that have been improved with hard-surfaced paving.”

About one year later, James started leasing the property at 1717 SE 14th Street from Galinsky. On July 19, 2006, the city zoning department asked James to sketch a site plan indicating where the inventory of used cars would be parked. James provided the city with a simple hand-drawing showing a front display area of the car lot abutting SE 14th Street with a holding lot behind it. The drawing did not show definitively whether the holding lot extended all the way back to SE 14th Court, an unpaved street that runs parallel to SE 14th Street. On the same date, the city issued a Vehicle Dealership License Zoning Confirmation to James, noting that the property was “zoned properly”  and met the standards to be used as a vehicle display lot.

On April 19, 2008, a city inspector visited Big Guy Auto Sales and discovered inoperable vehicles, boats, and other junk and debris stored on the unpaved back portion of the lot. The city‘s neighborhood inspection division issued a notice of violation and James responded by cleaning up the property.

On June 4, 2008, the city sent a letter to Galinsky assigning a new address—1716 Southeast Fourteenth Court—to the rear portion of the lot at 1717 Southeast Fourteenth Street. The city inspector testified that she issued the address letter so the city could use its computerized database to track future enforcement activity on that parcel. A city inspector again visited Big Guy Auto Sales on August 5, 2008. The next day, the city‘s development zoning division issued Galinsky a notice that the condition of his property at 1716 Southeast Fourteenth Court violated a municipal code provision prohibiting storage of vehicles on an unpaved lot.  Galinsky appealed the notice of violation to the City of Des Moines Zoning Board of Adjustment (ZBA) under Iowa Code section 414.10 (2007), asserting that he had “grandfather rights to use this property as it has been used in the past”  as a result of the zoning confirmation letters of 2005 and 2006.  The ZBA upheld the violation notice, concluding that the earlier letters from the city gave Galinsky grandfather rights for auto sales, but not rights to park vehicles on unpaved surfaces.  The ZBA determined that the July 19, 2006 sketch did not extend to SE 14th Court, and did not include the unpaved portions of the lot. 

Galinsky filed a petition for writ of certiorari and application for a restraining order against the city in Polk County district court.  The district court ruled against the ZBA on a determination that Galinsky “continues to enjoy nonconforming use status as a used car lot.”  The ZBA appealed to the Court of Appeals.  

On appeal the Court of Appeals sided with the ZBA.  Galinsky did not meet his burden before the ZBA to show that his tenant‘s practice of parking cars being prepared for sale on the unpaved rear portion of the lot at 1717 SE 14th Street was ever allowed under the city zoning codes. To qualify as nonconforming, the use of the property must be lawful at the time the owner or tenant commenced the activity. The ZBA found that as far back as 1953, the zoning code prohibited used car dealers from parking cars on an unpaved lot. Accordingly, the ZBA determined, and the Court of Appeals agreed, that Galinsky‘s property could not qualify for a nonconforming use exemption for an activity that was not lawful, even if it existed, when the current zoning code went into effect.

Iowa Court of Appeals, Non-Conforming Uses, Zoning enforcement auto sales lots, Iowa Court of Appeals, nonconforming uses

by Gary Taylor

A-Line Iron & Metals, Inc. v. City of Cedar Rapids Zoning Board of Adjustment
(Iowa Court of Appeals, November 10, 2010)

A-Line Iron & Metals, Inc. filed a petition for a conditional use permit with the city of Cedar Rapids, seeking to operate a business to recycle scrap metal and iron (meeting the definition of “salvage yard” under the city’s zoning code).  The location was zoned I-2, “General Industrial Zone.” Salvage yards seeking to locate in I-2 must receive a conditional use permit, and the request must go through the city planning commission for review and recommendation prior to being heard by the zoning board of adjustment (ZBA).
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The city’s Community Development department prepared a staff report for the planning commission recommending that the petition could be approved if certain conditions were fulfilled. The report found the requested conditional use was in accord with the future land use designation for the site. The planning commission recommended approval, subject to certain conditions.

Prior to the ZBA hearing, twenty-seven written complaints from nearby property owners were filed with the ZBA.  These written complaints, and the complaints voiced at the hearing, generally revolved around concerns over noise and increased truck traffic.  The attorney for a nearby radio station pointed out that on the future land use map the property was designated “commercial/industrial,” and salvage yards were not permitted in this category.  When asked about this issue at the ZBA hearing the city planner acknowledged the proposed use was not in accord with the future land use map, but expressed the opinion that “when the future land use map was drafted it was an oversight by the technical committee as it should have been shown as general industrial because that’s exactly what the property is for.”

The ZBA denied the conditional use permit.  No written findings of fact were filed by the ZBA; however, extensive minutes were recorded and approved.  In the minutes was a nearly-verbatim comment by the vice chair of the ZBA:

I . . . welcome new employees and new businesses to Cedar Rapids. This is very complicated and a lot of objectors so I went to the book, there is no question that in this district you have the right to apply for a conditional use of a salvage yard . . . . However, I would go to what I would call the three Cs. As I go back into the book here and look at the three Cs it was pointed out that I would just call them consistency, or consistent character, and compatible and as I look at this and as much as I would like to see a new business and new employees, I would say in my opinion we don’t have consistency with the land use. We are out of character for the neighborhood and being out of character it lacks the compatibility that I would like see . . . .  

A-Line filed a petition with the district court.  The district court found the minutes, the transcript of the hearing, and the documents presented at the hearing provided sufficient record to review the ZBA decision.  The district court found the reference to the “three C’s of consistency, character, and compatibility” were clearly a reference to the section of the city’s municipal code that sets forth criteria for approving conditional use permits.  The court determined that the ZBA had considered each of the standards in the code, even though each standard was not specifically discussed.  The court concluded there was substantial evidence in the record to support the ZBA decision.  A-Line appealed the district court decision to the court of appeals.

The court of appeals began by reciting the following principles found in Iowa caselaw regarding the need for ZBAs to develop adequate records of their proceedings:

• Boards of adjustment shall make written findings of fact on all issues presented in any adjudicatory proceeding.
• It is sufficient if a board substantially complies with this requirement.
• There is substantial compliance if the rule has been followed “sufficiently so as to carry out the intent for which it was adopted,” which is “to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.”
• The reviewing court may determine substantial compliance by considering the board’s decision in the context of the meeting where the vote was taken as well as the views expressed by board members during the meeting.

The court of appeals concluded that the ZBA’s findings were sufficiently recorded so as to permit a court to review those findings. The minutes of the meeting and the transcript from the meeting clearly showed the ZBA denied the petition because the intended use of the property was not consistent with the use of nearby property, did not match the character of the neighborhood, and was not compatible with surrounding property. After the city planner advised the ZBA that the conditional use was not consistent with the future land use map, albeit due to an oversight, the vice chair of the ZBA commented that “in my opinion we don’t have consistency with the land use . . . are out of character for the neighborhood, and . . . it lacks compatibility.” The ZBA then proceeded to vote to deny A-Line’s conditional use application.

A-Line asserted the record did not support the denial because it showed that the ZBA addressed only three of the seven standards required for granting a conditional use permit.  The court of appeals pointed out that under the city’s code a conditional use permit can only be granted if all seven of the standards are met, and concluded that the ZBA considered the standards sufficiently to determine that three (those addressing consistency, character, and compatibility) were not met. Thus, addressing the other four standards would be unnecessary.

Finally, A-Line contended that the objectors raised only “generalized, unsubstantiated and speculative concerns that could not rise to the level of substantial evidence.” Noting that expert testimony is generally not required, and a ZBA may rely on anecdotal reports and “commonsense inferences drawn from evidence relating to other issues such as use and enjoyment, crime safety, welfare, and aesthetics to make a judgment,” the court of appeals concluded that substantial evidence existed to support the conclusion that the proposed use would not be consistent with the intent and purpose of the future land use policy plan.

Conditional Uses/Special Uses, Iowa Court of Appeals, Procedural Issues Iowa Court of Appeals, record of proceedings, substantial evidence, Zoning board of adjustment

by Gary Taylor

Paulson v. City of Ventura and JBS Auto Parts
(Iowa Court of Appeals, October 6, 2010)

The Paulsons purchased Lots 2 and 3 in the Brad Smith subdivision in Ventura in 2006. They built a duplex on Lot 2 and live in the side next to Lot 1. Defendant JBS purchased the Dome Bait & Tackle property, which is adjacent to Brad Smith Lot 1, in 2005. Then in 2007 JBS purchased Brad Smith Lot 1.

In 2007 JBS sought a one-year “conditional use variance” in order to continue to use Lot 1 to store boat hoists, as had been done for years. At the hearing on the request, JBS requested that a conditional use instead be granted for eight years. The Ventura board of adjustment granted a two-year limited conditional use permit, with conditions that “the storage of the boat hoists shall be in such a manner, as to minimize the depreciation of the adjoining residential property,” and that “the owners of the adjoining residential property will each incur half the cost of planting a landscape screen between the two properties.”

The Paulson’s challenged the board’s actions, and the court annulled the board’s decision because it lacked any evidence that the conditions would be effective in alleviating the depreciation of Paulsons’ property.  Because it annulled the board’s conditional use permit the court stated that the city of Ventura “is not required to take any action against [the] use of Lot 1,” but Paulsons had suffered injury and, “in the event Ventura takes no action,” would continue to suffer irreparable injury without an adequate legal remedy.  Rather than grant an injunction as request by Paulsons, the court instead ordered JBS to install a natural barrier between Lots 1 and 2 at its sole expense if it continued to store boat hoists on Lot 1.  Neither party appealed from this ruling.

Paulsons then asked Ventura to enforce its zoning ordinance concerning Lot 1. Ventura considered the matter during one or two city council meetings, but took no action. Plaintiffs again requested action and raised additional concerns about parking and a portable restroom that had been placed on Lot 1. The city attorney responded by assuring that the city of Ventura “has and will continue to enforce all of its Ordinances including the Zoning Ordinance in an even-handed and appropriate manner” but that the council, “by inaction, directed that no specific action be taken with respect to the purported nonconforming use….. One of the considerations on which the [city council] apparently relied consists of the Court’s findings of fact in its ruling.”
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Paulsons then filed their petition for writ of mandamus, seeking to compel Ventura to enforce its zoning ordinance and require JBS to remove all boat hoists and stop other commercial activity on Lot 1. The district court framed the issues as (1) whether Ventura had a valid zoning ordinance regulating the properties, (2) if there is a valid zoning ordinance, whether the current use of Lot 1 violates the ordinance, and (3) if the answers to (1) and (2) are affirmative, whether mandamus is the appropriate remedy.  The court found Ventura had a valid zoning ordinance, and JBS had “substantially altered and changed the use of lot one and now uses it exclusively for commercial purposes.” The court found “as a matter of fact and law” that JBS was in violation of Ventura’s zoning code. The court concluded Ventura had a duty to enforce its zoning ordinance and its discretion extended “only to determine what action to take to correct the violation.” It also determined plaintiffs have “a right to enjoyment of their property free from adjacent illegal use and also have the right to have Ventura enforce its Zoning Code. They have no other remedy.” The city appealed to the Court of Appeals.

Ventura contended the court erred in making a determination that the use of Lot 1 by JBS is in violation of the zoning code. The city argues that question was not before the court in the mandamus action because “a writ of mandamus is not to establish a legal right, but to enforce one” already established.  The Court of Appeals found clear evidence that the lot is zoned residential and that JBS was using the lot for commercial purposes, and that the city’s own action in considering and granting the conditional use request acknowledged the current use did not fit within the allowed uses in a residential zone. After the district court annulled the conditional use permit, the commercial use of Lot 1 remained, but without any pretense of being a permissible or legal use of the lot under the zoning code.

The city next argued that mandamus is inappropriate because zoning enforcement is discretionary – that mandamus is limited to occasions “where an official or entity has a duty to act.” The city argued it has discretion in whether to take action, pointing to a section of its zoning code that provides the city “may institute appropriate action or proceedings to enjoin a violation” and Iowa Code 414.20, which provides the city, “in addition to other remedies, may institute any appropriate action or proceedings” to deal with violations of its zoning code. The Court of Appeals concluded that it need not determine whether the enforcement of the zoning code is ministerial, because mandamus is also proper if the city “acted arbitrarily or capriciously in denying the request” for enforcement of its zoning code, and the city council’s decision to take no action was an abuse of discretion and arbitrary and capricious. “It is well settled that [a writ of mandamus] may issue to correct an abuse of discretion, . . . or such an evasion of positive duty, as to amount to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law; and in such a case a mandamus would afford a remedy where there was no other adequate remedy provided by law.

JBS further contended mandamus was not appropriate because alternative remedies existed; specifically that the Paulsons have a remedy through the political process… they could seek to have officials sympathetic to their position elected who would exercise their discretion to bring an enforcement action to abate the use. The Court of Appeals dismissed this notion by stating that while the suggested remedies may be “competent to afford relief” eventually, JBS cannot reasonably contend they would be “equally convenient, beneficial and effectual. The commercial use of lot one is harming plaintiffs now. Ventura decided to take no action to enforce its zoning code. Mandamus is proper to compel the city to act.”

Iowa Court of Appeals, Mandamus Iowa Court of Appeals, Mandamus, zoning enforcement discretion