Bradshaw v. Bunn Properties, L.L.C, No. 8-219/07-0426 (Iowa App. 6/25/2008)

• Decision Date: 25 June 2008
• Docket Number: No. 8-219/07-0426.,8-219/07-0426.
• Parties: KATHY J. BRADSHAW, Plaintiff-Appellant, v. BUNN PROPERTIES, L.L.C. and CITY OF CLIVE, IOWA, Defendants-Appellees.
• Court: Iowa Court of Appeals

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KATHY J. BRADSHAW, Plaintiff-Appellant, v. BUNN PROPERTIES, L.L.C. and CITY OF CLIVE, IOWA, Defendants-Appellees.

No. 8-219/07-0426.

Court of Appeals of Iowa.

Filed June 25, 2008

Appeal from the Iowa District Court for Dallas County, Paul R. Huscher Judge.

The plaintiff appeals from the district court's order granting summary judgment in favor of the defendants. AFFIRMED.

James Nervig of Brick Gentry P.C., West Des Moines, for appellant.

Samuel Kreamer and Michael Roberts of Kreamer Law Firm, P.C., West Des Moines, for Bunn Properties L.L.C., and Jason Palmer and Timothy Lillwitz of Bradshaw, Fowler, Procter & Fairgrave P.C., Des Moines, and James C. Wine of Nyemaster, Goode, West, Hansell & O'Brien, Des Moines, for City of Clive.

Heard by Sackett, C.J., and Huitink and Mahan, JJ.

MAHAN, J.

Kathy Bradshaw appeals from the district court's order granting summary judgment in favor of the City of Clive and Bunn Properties. We affirm.

I. Background Facts and Proceedings.

In August 2006 Bradshaw filed a petition at law seeking declaratory judgment, a permanent injunction, and monetary damages against Bunn Properties and the City of Clive (City). She asserted Bunn had illegally begun constructing a veterinary clinic building and other site improvements on a commercial parcel located across the street from Bradshaw's residence. The petition requested a declaratory judgment that Bunn was violating zoning ordinances and was required by law to comply with the zoning ordinances, and that the City was legally compelled to bring Bunn's project into compliance. Bradshaw also requested an injunction to halt construction and to prevent the City from issuing any certificates of occupancy for the clinic until the zoning violations were abated.

Prior to construction, Bunn had submitted a proposed site plan for the clinic to the Clive Community Development Department (CCDD) on January 30, 2006. Within one week, the CCDD director requested Bunn submit a revised site plan, which Bunn did on February 15. The Clive Planning and Zoning Commission reviewed and discussed a staff report concerning the site plans on February 28 and recommended approval of the Bunn site plans. Upon receiving the commission's recommendation, the Clive City Council met on March 16, 2006, where it approved the proposed site plans. Notices required by law were issued prior to both the February commission meeting and the March city council meeting. Bradshaw did not attend either meeting, nor has she ever filed an appeal with the Clive Board of Adjustment to contest a zoning violation. Following the City's actions and the filing of Bradshaw's petition, the City issued a certificate of occupancy in late October 2006. According to Clive City Ordinance section 175.42(4)(J) and the affidavit of CCDD director Doug Ollendike, a building inspector must inspect the property and find it to be in conformance with plans approved by the commission and city council before an occupancy permit may be issued.

Bunn filed a motion to dismiss/motion for summary judgment on December 5, 2006, arguing that City officials had taken official action before the petition was filed but Bradshaw failed to exhaust her administrative remedies before filing her petition with the district court. Bradshaw resisted, contending no "Clive zoning official" had made a decision that could be appealed before the Board of Adjustment regarding the Bunn property, thereby bestowing original jurisdiction to the district court on her petition. Bradshaw also filed a motion to remand in late December 2006 asking the district court to remand her case to the Clive Board of Adjustment if necessary to exhaust her administrative remedies. After a hearing on all motions, the district court issued a ruling in February 2007 determining it lacked jurisdiction to entertain Bradshaw's petition at the time for failure to exhaust administrative remedies, granting summary judgment in favor of the defendants, and dismissing the case. Bradshaw appeals.

II. Scope and Standards of Review.

We review a district court's ruling on a motion for summary judgment for correction of errors at law. Schlote v. Dawson, 676 N.W.2d 187, 188 (Iowa 2004). Summary judgment is available only when there is no genuine issue of material fact, Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732, 735 (Iowa 2008), and the moving party is entitled to judgment as a matter of law. Kistler v. City of Perry, 719 N.W.2d 804, 805 (Iowa 2006). "A `genuine issue' of material fact exists if the evidence is such that a reasonable fact finder could return a verdict for the nonmoving party." Baratta v. Polk Co. Health Serv., 588 N.W.2d 107, 109 (Iowa 1999) (citing Fees v. Mutual Fire & Auto. Ins. Co., 490 N.W.2d 55, 57 (Iowa 1992)). The burden of showing the nonexistence of a material fact is on the moving party, and every legitimate inference that reasonably can be deduced from the evidence should be afforded the nonmoving party. Randol v. Roe Enters., Inc., 524 N.W.2d 414, 415-16 (Iowa 1994) (quoting Martinko v. H-N-W Assocs., 393 N.W.2d 320, 321 (Iowa 1986)).

III. Issue on Appeal.

The sole issue on appeal is whether the district court erred in determining Bradshaw had failed to exhaust her administrative remedies and granting summary judgment to the defendants. It was uncontested at hearing that Bradshaw had never sought recourse through the City or the Clive Board of Adjustment regarding her zoning violation allegations before she filed suit in district court. Although the parties continuously refer to this issue as one concerning subject matter jurisdiction, that is a misstatement. The district court always has subject matter jurisdiction over a case such as this, only certain things may prevent the court having authority at a particular time to hear a case. See State v. Mandicino, 509 N.W.2d 481, 482 (Iowa 1993) (noting that subject matter jurisdiction should not be confused with authority, as "A court may have subject matter jurisdiction but for one reason or another may not be able to entertain a...