Shors v. Johnson

• Decision Date: 29 July 1998
• Docket Number: No. 96-1025,96-1025
• Citation: 581 N.W.2d 648
• Parties: Catherine B. SHORS, Appellee, v. Wayne P. JOHNSON and Diana Johnson, Appellants.
• Court: Iowa Supreme Court

Page 648

581 N.W.2d 648

Catherine B. SHORS, Appellee, v. Wayne P. JOHNSON and Diana Johnson, Appellants.

No. 96-1025.

Supreme Court of Iowa.

July 29, 1998.

Harold W. White of Fitzgibbons Brothers, Estherville, for appellants.

Robert W. Sackett of Sackett and Sackett, P.C., Milford, for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, NEUMAN, and TERNUS, JJ.

TERNUS, Justice.

The narrow issue presented in this case is whether a neighboring property owner aggrieved by the issuance of a building permit must exhaust her administrative remedies before seeking injunctive relief from the court. The trial court held that the appellee's failure to file an administrative appeal of the zoning administrator's decision to issue the challenged zoning permit did not preclude her suit in district court. We disagree. Therefore, we reverse and remand for entry of judgment in favor of the appellants.

I. Background Facts and Proceedings.

Appellee, Catherine Shors, owns a home located immediately north of real estate owned by appellants, Wayne and Diana Johnson. These adjacent properties are located in the City of Wahpeton, Iowa. The present dispute arose when the Johnsons decided to construct a home on their lot.

The Johnsons were required by the Wahpeton city ordinance to obtain a building permit prior to construction of their residence. The ordinance required that the application for the permit include a site plan. In compliance with this requirement, the Johnsons submitted a site plan with their application; it showed a side yard of five feet, two inches on the north side of the house.

After the application was filed, the proposed construction was staked on the Johnsons' property. The staking established a five-foot setback line for the north side yard. The zoning administrator inspected the proposed construction as staked out and told the Johnsons' designer that the plan complied with the city's zoning requirements. The zoning administrator issued a building permit the next day, September 19, 1991.

Wahpeton zoning ordinance no. 42 establishes a minimum side yard requirement of eight feet for single family dwellings. It also provides that "the side yard may be reduced to not less than 10 percent of the lot width, but in no case less than 5 feet." It is undisputed on appeal that the Johnsons' lot is eighty feet wide, and under the terms of the ordinance, they are required to have a side yard no less than eight feet in width. ¹

Upon issuance of the building permit, the Johnsons' contractor began excavating their lot, completing this task on September 25, 1991. During the excavation, Shors noticed the closeness of the hole to her lot line. She questioned the contractor about her observations and was informed that they dig the hole larger than the actual house dimensions. Shors thereafter closed her Wahpeton home for the summer and did not return until the spring of 1992.

When Shors returned the following spring, she saw that the framework of the Johnsons' home was nearly completed. Her concern about the closeness of her neighbors' house was renewed, so she went to the city hall to read the zoning ordinance. Shors concluded the ordinance required an eight-foot side yard. She then measured the north side yard of the Johnsons' property and found it to be five feet.

At this point, Shors asked her son, a Des Moines attorney, for assistance. Shors' son spoke with Mr. Johnson and corresponded with him from late May through late June 1992, but could not resolve the problem. By early June 1992, the framing and roof of the house had been completed, and the windows had been installed. All construction on the house was finished by May 1993.

Shors filed her petition in this case on December 16, 1993. She pled several counts, but withdrew all prior to trial except count I. In count I, Shors alleged the Johnsons' home violated Wahpeton zoning ordinance no. 42. She requested that the court order the Johnsons to modify their home so that it would comply with the ordinance's minimum eight-foot side yard requirement.

After a bench trial, the district court granted the relief requested by Shors. ² The court found the Johnsons' north side yard did not comply with ordinance no. 42 and the building permit had been illegally issued. It also held the proximity of the Johnsons' home to Shors' property constituted an irreparable injury to Shors and, therefore, Shors was entitled to injunctive relief. The court ordered the Johnsons to remove their residence or bring the north side into compliance with the zoning ordinance. In ruling in favor of Shors, the trial court rejected the Johnsons' argument that Shors failed to exhaust her administrative remedies.

II. Issues on Appeal and Scope of Review.

The Johnsons assert Shors did not exhaust her administrative remedies because she failed to appeal the zoning administrator's decision to issue the building permit. They contend Iowa Code section 414.10 (1991) required Shors to file an appeal with Wahpeton's board of adjustment and her failure to do so bars any relief from the district court. Shors counters that adjacent property owners need not exhaust an administrative process in which they were not participants and of which they did not receive notice.

A plaintiff's failure to exhaust an administrative remedy deprives the district court of jurisdiction of the case. See Aschan v. State, 446 N.W.2d 791, 792 (Iowa 1989). Contrary to the arguments of the parties, the issue is not one of subject matter jurisdiction. See Holding v. Franklin County Zoning Bd. of Adjustment, 565 N.W.2d 318, 319 (Iowa 1997). Our scope of review is for correction of errors of law. See id. at 320; Riley v. Boxa, 542 N.W.2d 519, 521 (Iowa 1996).

III. Discussion.

It is well established that a party must exhaust any available administrative remedy before seeking relief in the courts. See Iowa Coal Mining Co. v. Monroe County, 555 N.W.2d 418, 431 (Iowa 1996). The exhaustion doctrine applies when (1) an adequate administrative remedy exists, and (2) the governing statute requires the remedy to be exhausted before allowing judicial review. See Riley, 542 N.W.2d at 521. The statute upon which the Johnsons rely is Iowa Code section 414.10, which states:

Appeals to the board of adjustment may be taken by any person aggrieved ... by any decision of the administrative officer. Such appeal shall be taken within a reasonable time as provided by the rules of the board by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds thereof.

The Wahpeton city ordinance requires that "any person aggrieved" by a decision of the zoning administrator must appeal to the board of adjustment within ten days. (If the person aggrieved is dissatisfied with the decision of the board of adjustment, he or she has the right to file a petition for writ of certiorari in the district court. See Iowa Code § 414.15.) We must decide whether an appeal to the board of adjustment is an adequate remedy and whether section 414.10 requires that such an appeal be exhausted before resort to the courts. We answer both questions affirmatively.

A. Adequacy of remedy. We first note that Shors does not contest her status as an aggrieved person within the meaning of section 414.10. The evidence established that the decision of the zoning administrator to issue a building permit allowing five-foot side yards on the lot adjacent to Shors' property adversely affected the value and use of her property. Although an administrative appeal was thus available to her, Shors claims she was not required to resort to this remedy because it was inadequate. We disagree.

The board of adjustment has the power "[t]o hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant thereto." Iowa Code § 414.12. In exercising this power, the board may

reverse, or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.

Id. § 414.13. Pursuant to these statutes, the Wahpeton board of adjustment had the power to reverse a decision of the zoning administrator and revoke a previously-issued building permit. Such action by the Wahpeton board of adjustment here would have prevented construction of a house on the Johnsons' lot with side yards less than the required eight-foot minimum, the precise relief requested by Shors in this lawsuit. See id. § 414.11 (stating that administrative appeal "stays all proceedings in furtherance of the action appealed from").

Nevertheless, Shors argues that this remedy is inadequate under the facts of this case because once construction had progressed to the point where Shors had constructive notice of the violation, the Johnsons' house was in place and the board had no power to order the Johnsons to abate the violation. At the time Shors obtained constructive notice, the board would have had the power to revoke the Johnsons' permit, thereby rendering them in violation of the ordinance. See B. & H. Inv., Inc. v. City of Coralville, 209 N.W.2d 115, 118 (Iowa 1973) (holding property owner issued an illegal permit did not acquire any vested rights even though it made substantial expenditures in reliance on the permit). Had the board revoked the Johnsons' permit and had the Johnsons not voluntarily remedied the violation, the city would have been able to obtain a court order directing the Johnsons to abate the violation. See Iowa Code § 414.20 (allowing city council to bring an action to correct or abate a violation of city's zoning ordinance). Thus, we hold the remedy provided by section 414.10 is...