by Eric Christianson
Burroughs v. Davenport ZBA
(Iowa Supreme Court, May 25, 2018)
To operate a daycare in the City of Davenport one must obtain a special use permit from the Zoning Board of Adjustment (ZBA). In March 2014, the ZBA granted Tiny Tots Learning Center a permit. Tiny Tots closed its doors in late 2014, and in July 2016 a new lessee of the premises, Mz Annie-Ru Daycare Center, opened at the same location. The new day care center supervises more children and is open for longer hours than Tiny Tots was. The Davenport Zoning Administrator determined the special use permit issued to Tiny Tots “run[s] with the land” and the new daycare center would not need to obtain another special use permit.
Burroughs along with other neighbors disagreed and appealed that decision to the Board of Adjustment. On October 13 the ZBA voted 4-0 to uphold the administrator’s decision that the special use permit continued to apply. After that hearing, staff advised the residents that they could file a petition to revoke the special use permit. They did so and on December 8 the board held a public hearing to determine if the permit should be revoked. The BOA voted 0-4 against revoking the permit. Shortly after both of these meetings city staff posted unofficial minutes to the city’s website; however, they were not officially approved until the subsequent meeting of the ZBA.
On January 25, Burroughs along with five other residents appealed these decisions to District Court claiming that the ZBA had acted improperly in refusing to revoke the permit. The City filed a motion to dismiss the case, asserting that the petition was untimely because it was not filed within thirty days of the challenged decisions.
Iowa Code 414.15 states:
Any person […] aggrieved by any decision of the board of adjustment […] may present to a court of record a petition […] Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.
The district court granted the City’s motion. Considering the posting of the minutes online to be the “filing of the decision.” Because the minutes of the December 8 meeting were posted on December 19th. The appeal on January 25th was untimely.
The court concluded that the:
“thirty-day time period begins to run from the time the appealing party has either actual knowledge or is chargeable with knowledge of the decision to be appealed.” Because it was “undisputed” that plaintiffs attended both the October 13 and the December 8 meetings, they had actual knowledge of the Board’s decisions as of those dates: “[T]he Court cannot hold that they did not have actual knowledge or chargeable knowledge of the decision which they witnessed firsthand.”
Burroughs and the other plaintiffs appealed this dismissal.
The Iowa Supreme Court considered four possibilities of when the decision was “filed” in this case:
- The time that the decision is made in a public meeting wherein the parties gain “actionable knowledge.”
- When the unofficial minutes of the meeting are posted to the city websites.
- When approved official minutes have been posted online.
- When a signed physical document is present in the offices of the BOA and available for public inspection.
Both parties had an initial and fallback opinion. The city argued that the decision was “filed” at the meeting when the vote was taken and the parties were aware of the action. If that was not accepted, then they argued that the posting of the unofficial meeting minutes online should be considered filing the decision.
The plaintiffs argued principally that that for a decision to be filed it had to be a physical signed document including findings of fact and available for public inspection at the board’s offices. By this argument neither the October 13th decision nor the December 8th decisions had ever been properly filed and thus could still be appealed. If the court did not accept this argument, then they argued that only the posting of the approved minutes online could be considered “filing.” This fallback position would only preserve the December 8th refusal to revoke the permit for appeal as the approved minutes containing that decision were not posted until January 6th.
The court gave a few principles that can be used to determine when a ZBA decision has been filed and, therefore, how long plaintiffs have to appeal.
First, a decision cannot be simply oral. It must exist in some documentary form. Simply having knowledge of what the decision is is not sufficient.
Second, the decision can be filed in electronic rather than paper form. The plaintiffs in this case tried to argue that a public document must be physical. The court disagreed indicating that in fact most of the Court’s own documents exist only digitally.
Third, a document has been filed in the “office of the board” when it has been posted on the board’s publicly available website that the board uses as a repository for official documents. The “office of the board” does not have to be a single physical location as long as the documents are accessible to the public.
Finally, the thirty-day period is triggered when the board posts the decision on its public website. However, what is posted must be an actual decision. Proposed minutes that have not yet been approved do not constitute a decision, but approved minutes do.
The Supreme Court of Iowa reversed the District Court’s dismissal of the December 8th ZBA decision. The case is remanded back to district court for further proceedings on the legality of the decision to allow Mz Annie-Ru Daycare Center to continue operation.
Implications for local governments
Although the court has clarified some aspects of 414.15, this decision does not answer all potential questions and you should rely on the advice of your attorney before changing your current practice. Some local boards have a long standing practice of approving a written Decision Order at the same meeting as the hearing and decision. Creation of such an Order as long as it clarifies the decision and the reasoning used, would likely qualify as filing the decision. Alternatively for boards that rely on approved minutes to file their decisions, it may be prudent to schedule a follow-up meeting to approve those minutes if the board of adjustment meets infrequently. This is especially true is litigation seems likely on a specific case.
3 thoughts on “Posting unapproved minutes with ZBA decision does not start the clock for purposes of filing appeal”
Am I correct in thinking that this whole mess could have been avoided if the BOA would have simply posted a resolution that had been signed at the meeting?
That would have at least answered the timeliness question. A signed decision with findings of fact would have started the clock whether that was posted online or just filed and available in “the offices of the board.”
That’s why the BOA should always do resolutions. Saves a lot of trouble! I really appreciate the articles.