Des Moines Board of Adjustment substantially complied with the law in granting setback exception

by Eric Christianson

Graziano v. Des Moines Board of Adjustment
(Iowa Court of Appeals, November 8, 2017)

Cecelia Kent purchased a previously undeveloped lot in Des Moines with the intent of building a single family home. However the winding road and a thirty-foot easement for a public storm sewer running diagonally across the back of the lot complicated Kent’s plans. On November 14, 2015, Kent appealed to the Des Moines Zoning Board of Adjustment for an exception to the district’s fifty-foot front yard setback, allowing her to build a house with a front yard setback of just thirty feet. She also asked the board for a variance to the setback required for a parking lot and an exception to the side yard setback.

The board denied the variance and the side yard set back, but voted to approve the exception to the front yard setback.

Kent’s neighbor Craig Graziano challenged the board’s action on two grounds:

(1) the board failed to make required written findings
(2) substantial evidence does not support the grant of an exception.

As quasi-judicial bodies, boards of adjustment are required to make written findings of all facts present. The intent of these is “to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.” In this case, the court of appeals determined that the staff report as well as the minutes of the discussion during the meeting was sufficient to allow the court to determine the factual basis and legal principles upon which the board acted.

 The criteria that the board is required to consider in granting an exception is detailed in Des Moines City Code:

1. (a) Such exception does not exceed [fifty] percent of the particular limitation or number in question . . .
2. The exception relates entirely to a use classified by applicable district regulations as either a principal permitted use, a permitted accessory use, or a permitted sign, or to off-street parking or loading areas accessory to such a permitted use;
3. The exception is reasonably necessary due to practical difficulties related to the land in question;
4. Such practical difficulties cannot be overcome by any feasible alternative means other than an exception; and
5. The exception is in harmony with the essential character of the neighborhood of the land in question.

Graziano challenged that the board had failed to show to show that there was no “feasible alternative” to granting the exemption  and that the reduced setback would be “in harmony with the essential character of the neighborhood.”

With regards to feasible alternatives, the meeting minutes show that the board of adjustment did discuss the possibility of moving the easement as well as to whether a smaller reduction to the setback might be adequate. Although this reasoning was not included in the final written findings, the court found this to be adequate to support the fact that the board “substantially complied” with the mandate to consider feasible alternatives.

Graziano also challenged that by not including expert testimony on the effect that this exemption may have on neighboring property values, the board failed to show that the setback would be “in harmony with the essential character of the neighborhood.” The court found that expert testimony is not required citing an earlier case which found:

[T]he board may rely upon “commonsense inferences from evidence relating to other issues, such as use and enjoyment, crime, safety welfare, and aesthetics, to make a judgment as to whether the proposed use would substantially diminish or impair property values in the area.”

The court affirmed the district court’s ruling upholding the exception granted to Kent.

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