ELY JR. v. CITY COUNCIL Of The City Of AMES, 0-317 / 09-1424

• Court: Court of Appeals of Iowa
• Writing for the Court: SACKETT, C.J.
• Parties: LAUREL J. ELY JR., and MILDRED E. ELY, Plaintiffs-Appellants, v. CITY COUNCIL OF THE CITY OF AMES, IOWA, Defendant-Appellee.
• Docket Number: No. 0-317 / 09-1424,0-317 / 09-1424
• Decision Date: 30 June 2010

LAUREL J. ELY JR., and MILDRED E. ELY, Plaintiffs-Appellants,
v.
CITY COUNCIL OF THE CITY OF AMES, IOWA, Defendant-Appellee.

No. 0-317 / 09-1424

In The Court Of Appeals Of Iowa

Filed June 30, 2010

Robert W. Goodwin of Goodwin Law Office, P.C., Ames, for appellants.

Kristine Stone, Assistant City Attorney, Ames, for appellee.

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Appeal from the Iowa District Court for Story County, Dale E. Ruigh, Judge.

Plaintiffs appeal the district court ruling rejecting plaintiffs' constitutional challenges to the Ames municipal code and its determination that the city council did not engage in illegal spot zoning. JUDGMENT AFFIRMED, WRIT ANNULLED.

Considered by Sackett, C.J., and Eisenhauer and Mansfield, JJ.

SACKETT, C.J.

Plaintiffs, Laurel and Mildred Ely, filed a petition for certiorari alleging the Ames city council violated their rights to due process and equal protection by designating property adjacent to the Elys' property as a historic landmark. Following a bench trial, the district court concluded that the designation did not violate the due process or equal protection clauses and was not illegal spot zoning. The Elys appeal this ruling. We affirm the dismissal of the Elys' action and annul the writ.

I. BACKGROUND AND PROCEEDINGS. In 1920, the Martin family built a house at 218 Lincoln Way in Ames, Iowa. From approximately 1920 to the late forties, the Martins provided room and board to African-American students attending Iowa State University when the students were denied housing elsewhere. The Martins became well known in the community for their efforts to make the Iowa State dormitories integrated and housing more available to African Americans in the Ames community. Distinguished botanist and the first African American to graduate from Iowa State University, George Washington Carver, often visited the Martins' home when he returned to Ames. The house is an example of the Craftsman architectural style and is one of the few remaining houses on Lincoln Way. Over time, Lincoln Way became a major artery within Ames and was designated as a "Highway-Oriented Commercial" zoning district. The home is currently residential rental property and is permitted as a nonconforming use because it was used as a household living space prior to enactment of the commercial zoning designation.

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The Archie A. and Nancy C. Martin Foundation was created to honor the Martins' contribution to the community. It submitted an application requesting that Ames designate the Martin house as a historic landmark. Plaintiffs, the Elys, own commercial property located immediately east of the Martin house. Their property is used as a tire and automotive service center. The Elys claim the Martin house is not well-maintained by its current owner, a grandson of Archie and Nancy Martin, and has deteriorated over time. They objected to the Martin property being designated as a historical landmark. They contended the designation would make it impossible to remove the house or change its residential use. They also argued that the designation would not insure that the property would be properly maintained. The end result without a requirement to improve the property, they asserted, is that it would decrease the commercial value of nearby properties, including their lot. Despite these objections, the planning and zoning commission and city council, following a public hearing, approved the designation and rezoned the individual Martin property as a "Historic Preservation Overlay District."

On January 10, 2008, the Elys filed a petition for certiorari claiming the relevant city ordinances denied the Elys due process and equal protection and the city council's actions were illegal spot zoning. A trial to the bench was held on December 3, 2008. In a ruling filed August 28, 2009, the trial court entered its findings of fact and conclusions of law. It concluded the ordinances were not in violation of the due process clause facially or as applied. It found there were no unreasonable classifications in the ordinance scheme to support the Elys' equal

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protection claim. It also determined the rezoning of the Martin property was not spot zoning, and even if it were, the spot zoning was valid. The Elys appeal each of these conclusions.

II. SCOPE OF REVIEW. "An appeal from an order... of the district court in a certiorari proceeding is governed by the rules of appellate procedure applicable to appeals in ordinary civil actions." Iowa R. Civ. P. 1.1412. Review of a certiorari action is ordinarily for corrections of errors at law, not de novo. Fisher v. Chickasaw County, 553 N.W.2d 331, 333 (Iowa 1996). However, even in a certiorari action, we must review de novo the evidence bearing on a constitutional issue. Perkins v. Bd. of Supervisors of Madison County, 636 N.W.2d 58, 64 (Iowa 2001); Lewis v. Iowa Dist. Ct., 555 N.W.2d 216, 218 (Iowa 1996);Montgomery v. Bremer County Bd. of Supervisors, 299 N.W.2d 687, 692 (Iowa 1980).¹ We therefore make our own evaluation, based on the totality of the circumstances, to determine whether the city ordinances are unconstitutional. Webster County Bd. of Supervisors v. Flattery, 268 N.W.2d 869, 872 (Iowa 1978).

III. DUE PROCESS. On appeal, the Elys claim the trial court erred in finding no denial of their right to due process. They also contend Ames City Code section 31.8, which sets forth the procedure for designating a property as a

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historical landmark, violates their right to procedural due process as guaranteed by the Fourteenth Amendment of the United States Constitution and by article I, section nine of the Iowa Constitution.

The district court did not address the procedural due process claim. Finding the Elys' claim vague, it addressed whether the overall procedure for designating a historical landmark was a substantive violation of due process. It evaluated whether Ames city code chapter 31, which addresses historic preservation districts, was unreasonable, arbitrary, capricious, or discriminatory, on its face or as applied to the Elys. It concluded it did not. It found several other chapters of the city code outlined routine maintenance requirements that applied to all properties, not just historic landmarks.² It concluded that in light of

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these other provisions, chapter 31 was not unreasonable or capricious for not including a routine maintenance requirement. We agree with this determination.

Given that the procedural due process claim was not specifically addressed by the district court, and the Elys did not file a motion to amend or enlarge under Iowa Rule of Civil Procedure 1.904(2), we are inclined to conclude that error was not preserved on this claim. See Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002) (stating that to preserve error a party must make a request for a ruling through a motion to amend or enlarge or through some other means "when the district court fails to resolve an issue, claim, or other legal theory properly submitted for adjudication."). Nonetheless we will address Elys' claim since the district court did address the substantive due process issue.

The central meaning of procedural due process has been clear for over a century: "'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.'" Kistler v. City of Perry, 719 N.W.2d 804, 807 (Iowa 2006) (quotingFuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 1994, 32 L. Ed. 2d 556, 569-70 (1972)). A person is only entitled to procedural due process when a state action threatens to deprive a person of a protected property or liberty interest. Meyer v. Jones, 696 N.W.2d 611, 614 (Iowa 2005). In analyzing a procedural due process claim, we first must determine whether there is a protected liberty or property interest at stake. Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 691 (Iowa 2002). If a protected interest is involved, we must determine what procedure is needed to protect that interest. Id. In doing so, we balance three considerations:

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First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Id. (quotingMathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976);see also Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 491 (Iowa 2003)).

The Elys argue they have a protected interest in maintaining the property value of their land, in maintaining the aesthetics of their neighborhood, and in promoting the economic welfare of the community. "Protected property interests... 'are created and their dimensions are defined' not by the Constitution but by an independent source such as state law." Bowers, 638 N.W.2d at 691 (citing Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 718 (8th Cir. 1995)). A property interest is only protected if there is a legitimate claim to entitlement. Greenwood Manor v. Iowa Dep't of Pub. Health, State Health Facilities Council, 641 N.W.2d 823, 837 (Iowa 2002). An abstract desire or expectation of a benefit is not sufficient. Id. The Elys claim that Neuzil v. City of Iowa City, 451 N.W.2d 159, 164 (Iowa 1990), establishes that one has a protected property interest in...