Frank Hardie Advertising, Inc. v. City of Dubuque Zoning Bd. of Adjustment

• Decision Date: 16 June 1993
• Docket Number: No. 92-834,92-834
• Citation: 501 N.W.2d 521
• Parties: FRANK HARDIE ADVERTISING, INC., Appellant, v. CITY OF DUBUQUE ZONING BOARD OF ADJUSTMENT, Appellee.
• Court: Iowa Supreme Court

Page 521

501 N.W.2d 521

FRANK HARDIE ADVERTISING, INC., Appellant, v. CITY OF DUBUQUE ZONING BOARD OF ADJUSTMENT, Appellee.

No. 92-834.

Supreme Court of Iowa.

June 16, 1993.

Brendan T. Quann and Stephen C. Krumpe of O'Connor & Thomas, P.C., Dubuque, for appellant.

James A. O'Brien of Conzett & O'Brien, Dubuque, for appellee.

Considered by LARSON, P.J., and SCHULTZ, NEUMAN, SNELL, and ANDREASEN, JJ.

SNELL, Justice.

Appellant, Frank Hardie Advertising, Inc., challenges a district court order denying Frank Hardie's petition for writ of certiorari. The petition sought a reversal of the decision of the appellee, the City of Dubuque Zoning Board of Adjustment, which dismissed Frank Hardie's application for a zoning variance. The zoning board dismissed the application because Frank Hardie is not the owner of the real estate subject to the requested variance, but merely leases a small portion of the land and owns a sign erected on this portion. We reverse and remand for further proceedings.

Frank Hardie Advertising, Inc. is an advertising firm which owns outdoor advertising signs erected in the city of Dubuque. One of these signs stands on land owned by Lyle Whalen, who operates his business there. Frank Hardie's sign is supported by three flange steel beams which are embedded ten to fifteen feet into the land. Frank Hardie rents this space from Whalen under a lease which contains an option to renew.

The sign is currently twelve feet by twenty-four feet, with a height of sixty-five and one-half feet. Since the sign was erected, a zoning ordinance was adopted which limits structure height to fifty feet. Therefore, the sign now stands as a nonconforming use.

This dispute arose when Frank Hardie and Whalen agreed to relocate the sign to another part of Whalen's property. As owner of the underlying real estate, Whalen applied for a variance to the City of Dubuque Zoning Board of Adjustment. In addition to his request to move the sign, Whalen proposed to increase its size to fourteen feet by forty-eight feet, keeping the same height of sixty-five and one-half feet.

The zoning board tabled Whalen's request for a variance on the ground that no hardship existed for the property owner since Whalen could still make reasonable use of the property without the variance. The zoning board tabled Whalen's request "until corporation counsel can render an opinion as to whether the owner of a structure can request a variance."

Frank Hardie then proceeded to apply for the same variance. The City of Dubuque Office of Planning Services refused to process its application. City of Dubuque Code section 5-3.5 (1991) reads, "[a]ny person owning property may apply for a variance from the literal enforcement of the bulk regulation provisions including parking and sign requirements of this ordinance for the property or structure involved." The planning services staff decided that Frank Hardie was precluded from consideration because it was not a "person owning property."

Frank Hardie appealed this administrative decision to the zoning board. The zoning board agreed with the planning staff that only the owner of the real estate subject to the requested variance had standing to apply. The district court affirmed the zoning board's decision and denied Frank Hardie's petition for writ of certiorari.

The petition derives from Iowa Code section 414.15 (1991), which authorizes any person aggrieved by a decision of the zoning board to present to a court of record a petition specifying the grounds of illegality. Our review of the denial of the petition for writ of certiorari is at law. Certiorari is available where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have acted in excess of jurisdiction or illegally. Erb v. Iowa State Bd. of Public Instruction, 216 N.W.2d 339, 342 (Iowa 1974); Iowa R.Civ.P. 306. Certiorari is an action at law and review by an appellate court is limited to determining whether the district court properly applied the law to the controversy before it. City of Des Moines v. Iowa Dist. Court, 428 N.W.2d 292, 296 (Iowa 1988).

The issue presented in this appeal is narrow, being limited to whether Frank Hardie as a lessee of land and owner of personal property has standing to request a variance from the zoning ordinance. The merits of Frank Hardie's request for a variance have not been addressed by any administrative agency or the district court and are not presented in this appeal. The relief sought by Frank Hardie is to be able to apply for a variance to the zoning board and obtain a decision on the merits.

The zoning board derives its authority through Iowa Code chapter 414, which authorizes city zoning. Under that aegis the city adopted an ordinance, Dubuque Code section 5-3.5, stating:

Variance Procedure

(A) Application.

Any person owning property may apply for a variance from the literal enforcement of the bulk regulation provisions including parking and sign requirements of this ordinance for the property or structure involved.

The zoning board has adopted the position that under chapter 414 and the ordinances created by the city thereunder, only an owner of real estate has standing to apply for a variance from zoning. Lessees of land, even long term, with the possible exception of a ninety-nine year lease, would not be permitted to apply. Reliance for this interpretation is gained from the language used in chapter 414 and the Dubuque Code. The argument is that section 414.7 grants the right to petition to modify a restriction on property to "any property owner aggrieved." A distinction is drawn from the language of section 414.10, which authorizes appeals to the zoning board "by any person aggrieved." Thus, the claim is made that Frank Hardie is an "aggrieved person" for purposes of section 414.10 and this appeal but is not a "property owner" with standing to apply for a variance. Since Dubuque Code 5-3.5 also refers to a "person owning property," the same argument is made for construing this ordinance.

Frank Hardie counters these arguments by referring to Iowa Code section 4.1(10) which states:

In the construction of the statutes, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the general assembly, or repugnant to the context of the statute:

....

10. Property. The word "property" includes personal and real property.

Citing various code sections that specify real or personal property, Frank Hardie's argument is that if section 414.7 was intended to apply only to owners of real property, the legislature would have said so. Also, chapter 414 regulates matters of concern as much to personal property owners as real property owners such as the height, number of stories, size of buildings and other structures, and density of population.

Consistent with this view is Frank Hardie's interpretation of the scope of Dubuque Code section 5-3.5. That section permits any person owning property to apply for a variance from enforcement of sign requirements for the property or structure involved. Hardie reasons that to interpret this section as limited to real property owners, as urged by the zoning board, renders the language "or structure involved" a redundancy. This result would conflict with our oft cited principle that "a statute should not be construed so as to make any part of it superfluous unless no other construction is reasonably possible." Iowa Auto Dealers Ass'n v. Iowa Dep't of Revenue, 301 N.W.2d 760, 765 (Iowa 1981).

Courts have analyzed the meaning of "aggrieved party" by articulating a standing test. In City of Des Moines v. Public Employment Relations Board, 275 N.W.2d 753, 759 (Iowa 1979), our court decided on a two-part test for aggrievement for...