Giesey v. Board of Adjustment of Iowa City, 2--56619

• Decision Date: 21 May 1975
• Docket Number: No. 2--56619,2--56619
• Citation: 229 N.W.2d 258
• Parties: Ralph E. GIESEY and Cynthia P. Gardiner Giesey, Appellants, v. BOARD OF ADJUSTMENT OF IOWA CITY, Appellee, v. Edward SANHUEZA, Intervenor-Appellee.
• Court: Iowa Supreme Court

Page 258

229 N.W.2d 258

Ralph E. GIESEY and Cynthia P. Gardiner Giesey, Appellants, v. BOARD OF ADJUSTMENT OF IOWA CITY, Appellee, v. Edward SANHUEZA, Intervenor-Appellee.

No. 2--56619.

Supreme Court of Iowa.

May 21, 1975.

Rehearing Denied June 16, 1975.

Trott & Jansen, Iowa City, for appellant.

Thomas M. Martin, Iowa City, for intervenor-appellee.

Considered en banc.

REES, Justice.

Plaintiffs appeal from a trial court order annulling a writ of certiorari to the defendant Iowa City Board of Adjustment and affirming the action of the Board in upholding issuance of a building permit for the construction of an apartment building on property owned by defendant-intervenor. We reverse and remand for entry of order revoking the building permit.

The intervenor, Edward Sanhueza, was the owner of a dwelling house located on a one-lot tract at 615 South Governor Street in Iowa City. Sometime in 1972 Sanhueza made application to the Iowa City building inspector for a building permit to construct an eight-unit apartment building at that location. In his application he described the building he proposed to construct as an addition to the building then standing on his lot. On July 10, 1972 the building inspector granted Sanhueza's application and issued the permit he requested. Plaintiffs thereafter appealed the issuance of the permit to the defendant Board of Adjustment. The Board denied their appeal and upheld the issuance of the permit on October 25, 1972.

Plaintiff's subsequently filed a petition in district court for the issuance of a writ of certiorari to review the legality of the Board's action, asking that the court annul and set aside the ruling of the Board and revoke the building permit. In their petition they alleged the Board acted illegally and without jurisdiction in upholding issuance of the building permit because the permittee's building plans violated § 8.10.5(G) of the Municipal Code of Iowa City. That section provided: 'Every building hereafter erected or structurally altered shall be located on a lot as herein defined, and there shall not be more than one main building on one lot unless otherwise provided in this chapter.'

The cause came on for trial on May 17, 1973. On May 23 Sanhueza, who had previously been permitted to intervene in the action, filed a motion to quash and annul the writ of certiorari. On July 31 trial court ordered the writ annulled and affirmed the action of the defendant Board in upholding issuance of the building permit.

On this appeal plaintiffs contend trial court erred in:

(1) Finding the building permit issued by the building inspector did not violate municipal zoning regulations.

(2) Finding the action of the defendant Board in upholding issuance of the permit was not illegal.

I. Rule 306, Rules of Civil Procedure, permits certiorari to test the jurisdiction of an inferior tribunal or to challenge its action as illegal, arbitrary or capricious. Certiorari is not an appeal and may not be used to correct mere errors on the part of the inferior body. Reed v. Gaylord, 216 N.W.2d 327, 333 (Iowa 1974); Zwingle Ind Sch. Dist. v. State Board of Public Instruction, 160 N.W.2d 299, 301 (Iowa 1968); Hohl v. Board of Education, 250 Iowa 502, 94 N.W.2d 787.

Our review of actions in certiorari is similarly limited. Certiorari being an ordinary proceeding triable as a law action, there is no review De novo. Rule 318 R.C.P.; Board of Education v. Iowa State Board of Public Instruction, 261 Iowa 1203, 157 N.W.2d 919 (1968); Grant v. Norris, 249 Iowa 236, 85 N.W.2d 261. Findings of an administrative tribunal may not be upset upon certiorari review when they are supported by substantial evidence unless it is shown the findings resulted from application of an erroneous legal standard. Vohs v. District Commrs. of Fremont County, 218 N.W.2d 595 (Iowa 1974); See Rule 344(f) 1, R.C.P.; Rule 334, R.C.P.

Certiorari may be employed to raise only questions of legality or jurisdiction. Illegality within the meaning of the certiorari rule has been said to exist 'when there is not substantial evidence to support the findings on which the inferior court or tribunal based its conclusions of law'. Vohs v. District Commrs., Supra at 596. Stated otherwise, if there is no substantial evidence to support findings upon which a lower tribunal arrives at a challenged conclusion of law, it acts illegally. Reed v. Gaylord, Supra, 216 N.W.2d at 334; Sueppel v. Eads, 261 Iowa 923, 926, 156 N.W.2d 115, 116. 'The fact that others may have reached a different conclusion or that an opposite result would have been fully justified by the evidence is of no importance'. Reisner v. Board of Trustees of Fire Retirement System, 203 N.W.2d 812, 814 (Iowa 1973).

In light of the foregoing principles, if in the matter before us the defendant Board of Adjustment had jurisdiction over plaintiffs' appeal and reached its conclusion the permit in question was properly issued on the basis of substantial evidence, we must affirm trial court in ordering the writ of certiorari annulled.

II. In this appeal plaintiffs have apparently...