Holland v. City Council of Decorah

• Citation: 662 N.W.2d 681
• Decision Date: 02 April 2003
• Docket Number: No. 00-2113.,00-2113.
• Parties: Frank HOLLAND, Loyal Rue and Marilyn Rue, Appellants, and Norwin Nesheim, Jaerdis Nesheim, James Fritz and Elizabeth Fritz, Plaintiffs, v. CITY COUNCIL OF DECORAH and Wal-Mart Stores, Inc., Appellees.
• Court: Iowa Supreme Court

662 N.W.2d 681

Frank HOLLAND, Loyal Rue and Marilyn Rue, Appellants, and Norwin Nesheim, Jaerdis Nesheim, James Fritz and Elizabeth Fritz, Plaintiffs, v. CITY COUNCIL OF DECORAH and Wal-Mart Stores, Inc., Appellees.

No. 00-2113.

Supreme Court of Iowa.

April 2, 2003.

As Amended on Denial of Rehearing June 16, 2003.

Karl G. Knudson, Decorah, for appellants.

Richard D. Zahasky, Decorah, for appellee City Council of Decorah.

Mark McCormick, Charles F. Becker, and Margaret C. Callahan of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for appellee Wal-Mart Stores, Inc.

LARSON, Justice.

This is an appeal in a certiorari case brought by landowners along the Upper Iowa River in Decorah to block the filling of a portion of the floodplain for the purpose of building a Wal-Mart Super Center. The defendants are Wal-Mart and the City Council of Decorah, to which we will collectively refer as Wal-Mart. The district court annulled the writ of certiorari, allowing the project to go forward, and the plaintiffs appealed. The court of appeals reversed, concluding the city council had exceeded its statutory authority in permitting the fill. We agree.

I. Facts and Prior Proceedings.

Under Iowa Code section 455.275(3) (1999), Wal-Mart was required to seek permission from the Iowa Department of Natural Resources (DNR) before filling, excavating, or building on the floodplain. The DNR granted Wal-Mart's application to place fill and excavate on at least part of the property.¹

In reliance on City Ordinance section 17.120.020, Wal-Mart applied to the Decorah City Council for a permit to place fill on the floodplain. That ordinance provides this with respect to floodplains in the city:

Principal permitted uses. Only the uses of structures or land listed in this section shall be permitted in the F-1 floodplain district:

A. Agriculture, truck gardening, and nurseries, and the usual accessory buildings, but not including livestock feedlots or poultry farms or similar uses; provided, that no permanent dwelling units shall be erected thereon;

B. Forests and forestry preserves, wildlife areas;

C. Publicly owned parks, nature areas, playgrounds, golf courses and similar noncommercial recreational uses;

D. Any use erected or maintained by a public agency, public and private parking lots;

E. Public utility structures, subject to approval of the board of adjustment, except those utilities and structures constructed by the city;

F. Dumping of approved materials for landfill purposes, subject to prior approval of the city council and appropriate state agencies.

(Emphasis added.) The last use, "F," is relied on by Wal-Mart, and the interpretation of that provision lies at the heart of this appeal.

In July 1999, before Wal-Mart applied to the city council, it wrote to the Decorah City Administrator to say Wal-Mart would be applying to the board of adjustment for a special exception to the floodplain ordinance. However, the application was never filed. On August 15, 2000, Wal-Mart's representatives appeared before the city council, which, by a four-to-three vote, approved Wal-Mart's request to fill the property. The fill request was presented and granted as part of a plan to build a Wal-Mart Super Center on the site. However, the council's vote only approved the fill; it did not change the zoning of the area or approve a site plan.

A neighboring floodplain owner, Upper Iowa Marine (UIM), also wanted to fill its property in order to construct a building. UIM applied to the board of adjustment for a special exception to the zoning ordinance. (UIM, like Wal-Mart, had previously obtained a permit from the DNR to fill the floodplain.) The board of adjustment denied UIM's fill request, finding it was inconsistent with Decorah's comprehensive zoning plan. The board of adjustment concluded:

Upper Iowa Marine has not met its burden of showing evidence that the granting of the special exception and subsequent filling of the site won't adversely affect public interest.

II. Authority of the Board of Adjustment.

The plaintiffs argue that Wal-Mart's request to place fill on the floodplain should have been submitted to the board of adjustment, as Upper Iowa Marine had done, and not to the city council because that is what Iowa Code section 414.7 requires:

The council shall provide for the appointment of a board of adjustment and in the regulations and restrictions adopted pursuant to the authority of this chapter shall provide that the said board of adjustment may in appropriate cases and subject to appropriate conditions and safeguards make special exceptions to the terms of the ordinances in harmony with its general purpose and intent and in accordance with general or specific rules therein contained and provide that any property owner aggrieved by the action of the council in the adoption of such regulations and restrictions may petition the said board of adjustment direct to modify regulations and restrictions as applied to such property owners.

(Emphasis added.)

Under section 414.12,

[t]he board of adjustment shall have the following powers:

. . . .

2. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.

We have explained the rationale underlying the dual-board (board of adjustment and city council) approach under chapter 414:

Standard zoning laws quite uniformly provide for a zoning commission, to hold hearings and make report to the city council. On such report, the city council adopts an ordinance defining the boundaries and describing the various uses that may be made of the land in the use districts laid out, and the height of the structures in the height area districts. It would be impracticable, if not impossible, for the city council to hold hearings and make decisions in respect to the classifications and restrictions of each individual property, while manifestly a rigid adherence to invariable district lines and designated uses and classifications and height regulations therein would in many cases work unnecessarily individual injustice and hardship, and not only invalidate the zoning as to them, but, by their unreasonable or confiscatory operation as to some, imperil the constitutionality of the ordinance as to all. In order to avoid an unreasonable and arbitrary and unconstitutional operation of the law in specific instances, and also to provide a local board to pass upon individual cases, resort is had to a zoning board of appeal, or in this state to the board of adjustment.

Anderson v. Jester, 206 Iowa 452, 457, 221 N.W. 354, 357 (1928) (citations omitted).

While Iowa Code section 414.7 states the board of adjustment "may ... make special exception to the terms of the ordinance" (emphasis added), this clearly does not mean some other entity, such as a city council, is empowered to do it if the board does not. In fact, our cases make it clear that such matters are the responsibility of the board of adjustment, not the city council. See, e.g., City of Des Moines v. Lohner, 168 N.W.2d 779, 784 (Iowa 1969) ("These powers [under section 414.12] are placed exclusively in the board [of adjustment] and effectively restricted by statute."); Depue v. City of Clinton, 160 N.W.2d 860, 862 (Iowa 1968) ("[I]s the jurisdiction of the board of adjustment, conferred by sections 414.7 and 414.12, an exclusive jurisdiction? We think the answer[][is] affirmative....").

III. Prior Iowa Cases.

In Depue the plaintiffs were neighbors who challenged the action of the Clinton City Council in granting a special-use permit authorizing the construction of a nursing home in their neighborhood, which was zoned R-1 residential by a 1965 zoning ordinance. The nursing home promoters petitioned the city council to rezone their tracts from R-1 to R-3, which would permit a nursing home. The city council did not act on the rezoning petition, following a negative recommendation by its city planning commission. Depue, 160 N.W.2d at 860-61.

The nursing home promoter then applied to the council for a special-use permit. The city planning commission recommended against it. The matter was never referred to the board of adjustment, but it was nevertheless approved by the city council. Id. at 861. The city had an interesting ordinance that provided for "special use" applications to be filed with the city council and "special exception" proceedings to be handled by the board of adjustment. We held the ordinance provision that permitted special-use applications to be part of the council's jurisdiction to be void, and the council's action under it to be invalid as well. Id. at 862. We said:

There can be little doubt that power conferred on the board by state statute may not be limited by city ordinance. Insofar as this ordinance conflicts with section 414.12, subd. 3 [delineating powers of the board of adjustment], the statute controls.

Id. at 863. We held the council had no jurisdiction to act on the application for special use. We explained the rationale for limiting jurisdiction to the board of adjustment.

[W]here a legislative body establishes standards in advance, the application of those standards to a specific situation is an administrative or quasi-judicial act. The application cannot be handled by the legislative body that created the standard without danger of contravening the separation of powers doctrine. When the Iowa legislature mandated a board of adjustment, whose members are appointed for long terms on a staggered basis, and provided for appeal directly to the courts, it eliminated the objection. Thus the constitutional issue does not arise.

Depue, 160 N.W.2d at 864 n. 5.

In Lohner the city council ruled that Lohner could no longer use his land for a salvage yard, even though the operation was initially legal. 168 N.W.2d at 780. The city ordered cessation of the salvage operation on the strength of this ordinance:

3. The uses hereinafter listed shall be

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