Burroughs v. City of Davenport Zoning Bd. of Adjustment

• Decision Date: 25 May 2018
• Docket Number: No. 17-0752,17-0752
• Parties: Paul J. BURROUGHS, Kenneth Burroughs, Terri Spinner, David Spinner, Sean Harvey, and Ty Harvey, Appellants, v. The CITY OF DAVENPORT ZONING BOARD OF ADJUSTMENT, The City of Davenport, Iowa, an Iowa Municipal corporation, and Mz. Annie-Ru Daycare Center, an Iowa Limited Liability Company, Appellees.
• Court: Iowa Supreme Court

912 N.W.2d 473

Paul J. BURROUGHS, Kenneth Burroughs, Terri Spinner, David Spinner, Sean Harvey, and Ty Harvey, Appellants,

v.The CITY OF DAVENPORT ZONING BOARD OF ADJUSTMENT, The City of Davenport, Iowa, an Iowa Municipal corporation, and Mz. Annie-Ru Daycare Center, an Iowa Limited Liability Company, Appellees.

No. 17-0752

Supreme Court of Iowa.

Filed May 25, 2018

Michael J. Meloy, Bettendorf, for appellants.

Brett R. Marshall of Lane & Waterman LLP, Davenport, for appellees Zoning Board of Adjustment and City of Davenport.

Ciara Vesey, Davenport, for appellee MZ Annie-Ru Daycare Center.

MANSFIELD, Justice.

This case requires us to interpret Iowa Code section 414.15, which requires a petition for writ of certiorari seeking review of a decision of a city zoning board of adjustment to be filed in district court "within thirty days after the filing of the decision in the office of the board."

Iowa Code § 414.15 (2015). We conclude that 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. Our conclusion is supported by out-of-state appellate decisions where the same statutory terms were applied. For these reasons, we affirm the judgment of the district court in part, reverse it in part, and remand for further proceedings.

I. Facts and Proceedings.

To operate a daycare facility in Davenport, one must obtain a special use permit from the Davenport Zoning Board of Adjustment. In March 2014, the Board of Adjustment granted Tiny Tots Learning Center (Tiny Tots) a permit to operate at 1112 Bridge Avenue. Tiny Tots had leased the premises from the landowner. Tiny Tots, however, closed its doors in December 2014. The property stood vacant from December 2014 to July 2016.

In July 2016, Mz. Annie-Ru Daycare Center (Annie-Ru), a new lessee of the premises, opened a daycare at the same location. Annie-Ru supervises more children and is open for longer hours than Tiny Tots.¹ The Davenport Zoning Administrator nonetheless determined the special use permit issued to Tiny Tots "run[s] with the land." Therefore, Annie-Ru was allowed to operate without having to apply for and obtain a new special use permit.

The following month, a nearby resident named Kenneth Burroughs and several other residents wrote the zoning administrator, challenging Annie-Ru’s right to operate. In response, the zoning administrator reiterated his view that the special use permit ran with the land, that it was still valid, and that Annie-Ru’s operations complied with that special use permit. He also advised the complaining residents they could appeal his decision to the Board of Adjustment. Burroughs and the others did so on September 7.

The residents’ appeal came on for a public hearing before the Board of Adjustment on October 13. Burroughs and others who appeared argued that Tiny Tots’ special use permit was not transferable to Annie-Ru. City staff disagreed. At the conclusion of the hearing, the Board of Adjustment voted 4–0 to uphold the City staff’s recommendation. After the vote, the chairperson of the Board of Adjustment advised the complaining residents they could file a petition to revoke Annie-Ru’s special use permit.

The minutes of the Board of Adjustment’s October 13 meeting describe the appeal and then state as follows:

Flynn presented the staff report. Staff position is that a Special Use Permit runs with the land and not with the applicant.

Staff stated that notices were sent to 8 property owners within 200 feet of the subject property. Staff received 0 letters in opposition to the request.

Recommendation and Findings of Fact

City Staff stands by its interpretation that Mz. Annie-Ru Daycare Center LLC is legally entitled to operate under the provisions of the Special Use Permit issued to Tiny Tots Daycare and requests the Zoning Board of Adjustment uphold its decision.

The petitioner [ (Burroughs) ] addressed the Board and reiterated the request, claiming that Special Use Permits do not run with the land.

Numerous persons spoke in favor of the appeal (please see the video for name and addresses).

Two persons spoke against the appeal and in favor of staff’s interpretation of the code.

One was the representative of the owner of 1112 Bridge Avenue and the other was City staff attorney Chris Jackson.

Attorney Chris Jackson quoted three separate zoning authorities on the topic which all confirmed that Special Use Permits do run with the land (and not the applicant).

Motion:

Reistroffer moved to uphold staff[’]s recommendation. Woodard seconded the motion and it carried (4-0) on a roll call vote.

Strayhall, yes; Reistroffer, yes; Woodard, yes; and Hart, yes.

These minutes were posted on the City’s website and available for public inspection in advance of the next meeting on October 27. However, when posted they had not been actually approved. Approval did not occur until the October 27 meeting.

On November 14, Burroughs and other nearby residents filed a petition to revoke Annie-Ru’s special use permit.² The petition came on for a public hearing at the Board of Adjustment’s December 8 meeting. Following discussion of various issues, the Board of Adjustment unanimously voted against revoking the special use permit.

The minutes of the Board of Adjustment’s December 8 meeting summarize the petition to revoke and then contain the following information:

Staff stated that notices were sent to adjacent owners within 200 feet of the subject property. Staff received 3 emails in support of the request.

Recommendation and Findings of Fact

FINDINGS

1. The location, design, construction and operation of the day care center adequately safeguard[ ] the health, safety, and general welfare of persons residing or working in adjoining or surrounding property.

2. The day care center does not impair an adequate supply of light and air to surrounding property.

3. The day care center does not unduly increase congestion in the streets, or public danger of fire and safety.

4. The day care center does not diminish or impair established property values in adjoining or surrounding property.

5. The day care center is in accord with the intent, purpose and spirit of the Zoning Ordinance and Davenport 2025: Comprehensive Plan for the City.

RECOMMENDATION

The Special Use Permit [ (SUP) ] is in compliance with the ‘Criteria for Granting a Special Use Permit’ and the conditions placed on the Permit at the time of granting. Based on this compliance and the Findings above, staff recommends that the revocation be denied.

The petitioner addressed the Board and reiterated the request.

Multiple persons spoke in favor of the request. Multiple persons spoke against the request, including the property owner and the daycare operator.

The Board discussed the request and the issues surrounding the neighborhood.

There are two SUPs in the neighborhood, one at 1112 Bridge and the other at 1118 Bridge. The Board found that the issues have to do with enforcement of on-street parking regulations.

Motion:

Hart stated that the Board has the authority to impose conditions on SUP14-02, but that could be a separate matter from the revocation.

Reistroffer moved to revoke SUP14-02. Woodard seconded the motion and it failed (0-4) on a roll call vote.

Strahall, no; Reistroffer, no; Woodard, no; and Hart, no.

The December 8 meeting minutes were posted on the City’s website and available for public viewing on December 19. However, when posted they had not yet been approved. Indeed, the agenda for the December 22 meeting included "[c]onsideration of the minutes from the December 8, 2016 public hearing" as one of the agenda items. Thus, approval of the December 8 minutes did not occur until the next Board meeting, on December 22. The minutes for the December 22 meeting reflect that this was the first action at that meeting and happened unanimously by voice vote. These minutes were not posted to the City’s website until January 6, 2017.

On January 25, Burroughs and five other nearby residents filed a petition for writ of certiorari in the Iowa District Court for Scott County challenging the Board of Adjustment’s October 13, 2016 and December 8, 2016 decisions. The City and the Board of Adjustment (hereafter collectively "the City") and Annie-Ru were named as defendants. On February 3, 2017, the City filed a motion to dismiss, asserting the petition for certiorari was untimely because it was not filed within thirty days of the challenged decisions.

The plaintiffs resisted the motion. They argued that a signed written decision with factual findings was necessary to trigger the thirty-day deadline for seeking certiorari review. Alternatively, they argued that even if minutes of the Board’s meetings could be sufficient in some circumstances to start the thirty-day time period, the December 8 minutes were not properly filed at that time and did not become properly filed until early January 2017, within the thirty-day deadline. The plaintiffs also supplemented their resistance with an affidavit from an individual who had visited the Davenport Planning Department on February 13 and asked to see "the official Board [of Adjustment] file on the Board’s actions pertaining to real property located at 1112 Bridge Avenue ...." In response, the City had emailed a file that, according to the affiant, contained neither a written decision nor minutes relating to the October 13, 2016 and the December 8, 2016 decisions.

Following a hearing, the district court granted the City’s motion on April 13. 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...