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.”
 
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.”