Sojka v. Zoning Board of Adjustment For Harlan, No. 5-062/03-1227 (IA 4/28/2005)
| Decision Date | 28 April 2005 |
| Docket Number | No. 5-062/03-1227,5-062/03-1227 |
| Parties | KEN SOJKA, Plaintiff-Appellant, v. ZONING BOARD OF ADJUSTMENT FOR HARLAN, IOWA, DARCY KALKAS, KELLY KALKAS, and CITY OF HARLAN, Defendants-Appellees. |
| Court | Iowa Supreme Court |
Appeal from the Iowa District Court for Shelby County, Timothy O'Grady, Judge.
Ken Sojka appeals from the district court's refusal to invalidate a building permit given to Darcy and Kelly Kalkas.
AFFIRMED.
Kenneth Sojka of Buckley & Sojka Law Offices, Harlan, appellant pro se.
Robert Hall of Larson, Childs, Hall & Christensen, Harlan, Jeffrey Larson, Harlan, and Joseph Lauterbach, Harlan, for appellee Zoning Board of Adjustment.
Marcus Gross, Harlan, for appellees Kalkases.
Heard by Sackett, C.J., and Zimmer and Hecht, JJ.
Plaintiff-Appellant, Ken Sojka (Sojka), and Intervenor-Appellees, Darcy and Kelly Kalkas (Kalkases), own adjoining lots in the R-1 residential zone in the City of Harlan, Iowa. The Kalkases applied for, and on August 21, 2000 received, a building permit authorizing them to move a house and build a garage on their lot. Sojka, among other things, appealed the issuance of the building permit unsuccessfully to the Zoning Board of Adjustment (Board). He then filed a petition for writ of certiorari with the district court challenging the Board's actions in not invalidating the building permit. He also challenged two other of the Board's decisions. The district court annulled the writ, affirming the Board's actions in all respects and dissolving any injunctions. Sojka now seeks review of the district court's decision, challenging it on numerous grounds, and contends we should remand the matter to the district court or the Board for further proceedings to correct what he alleges are zoning violations. We affirm.
Harlan Zoning Officer, Terry Cox, approved the Kalkases' building permit on August 21, 2000. The application for the permit included a diagram that was not drawn to scale and it omitted certain required specific information including the height of buildings and the planned setbacks. Sojka, whose east residential property line adjoins the Kalkases' property on the west, appealed the issuance of the permit to the Board.1 He raised eighteen issues, all of which were found to be without merit by the Board on September 30, 2002 after a hearing and public deliberations. Sojka also appealed to the Board a decision by the city Zoning Administrator, Terry Cox. The Board found the Kalkases did not violate the stay provision of section 22.06 of the Harlan Zoning Regulations when they continued to improve their property after November 27, 2000. This appeal was also rejected by the Board, as was Sojka's challenge to the Zoning Officer's determination that improvements the Kalkases sought to make to their house did not require a building permit.
In Sojka's challenge to the Board's actions, the district court annulled all writs, finding against Sojka on all issues and taxing all costs to him. The court further ordered a stay of the Kalkases' building permit lifted, by virtue of the Harlan Code of Ordinances section 22.06.
Sojka contends here that the zoning officer acted illegally in issuing the building permit (1) prior to the land being subdivided and the subdivision being approved, (2) without requiring the planning and zoning commission to review the Harlan comprehensive plan, and (3) where the house frontage and house height violated zoning regulations. Sojka also contends the Board acted illegally (1) in making a decision when members had a conflict of interest, and (2) by violating his substantive and procedural due process rights. Sojka further contends that the district court erred in (1) refusing to admit a transcript of the Board's deliberations, and (2) in assessing costs to him.
On appeal to this court from the certiorari ruling, our review is at law. Chrischilles v. Arnolds Park Zoning Bd. of Adjustment, 505 N.W.2d 491, 493 (Iowa 1993); Helmke v. Board of Adjustment, 418 N.W.2d 346, 347 (Iowa 1988). We are bound by the findings of the district court if they are supported by substantial evidence. Chrischilles, 505 N.W.2d at 493. We are not bound by erroneous legal rulings that materially affect the court's decision. Danish Book World, Inc. v. Board of Adjustment, 447 N.W.2d 558, 560 (Iowa Ct. App. 1989). However, to the extent that Sojka raises a constitutional right, our review is de novo. Huisman v. Medema, 644 N.W.2d 321, 324 (Iowa 2002).
Although we give deference to the Board's interpretation of its city's zoning ordinances, final construction and interpretation of zoning ordinances is a question of law for us to decide. See Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d 541, 543-44 (Iowa 1996); Ernst v. Johnson County, 522 N.W.2d 599, 602 (Iowa 1994); Obrecht v. Cerro Gordo County, 494 N.W.2d 701, 703 (Iowa 1993). In interpreting ordinances it is appropriate to apply the general rules of construction for statutes. Lauridsen, 554 N.W.2d at 543 ().
Controlling rules of construction are well settled. "Ordinarily, where the legislature defines its own terms and meanings in a statute, the common law and dictionary definitions which may not coincide with the legislative definition must yield to the language of the legislature." Id.; State v. Steenhoek, 182 N.W.2d 377, 379 (Iowa 1970). We use dictionary definitions to interpret terms in zoning ordinances. Lauridsen, 554 N.W.2d at 543; Steenhoek, 182 N.W.2d at 379. The dictionary is consulted to give words their plain and ordinary meaning in the absence of a legislative definition. See Iowa Code § 4.1(38) (2001). In interpreting words we consider the context in which the words of the statute are used. Id.; State v. Ahitow, 544 N.W.2d 270, 272 (Iowa 1996).
Building permit prior to land being subdivided.
Sojka contends the Board2 did not have subject matter jurisdiction, for the zoning officer was not authorized to issue a building permit because the Kalkases' property was not located in an approved subdivision.
Subject matter jurisdiction refers to the authority of the Board to hear and determine issues of the general class to which the proceedings in question belong, not merely the issue then occupying the Board's attention. See Christie v. Rolscreen Co., 448 N.W.2d 447, 450 (Iowa 1989); Wederath v. Brant, 287 N.W.2d 591, 594 (Iowa 1980).
The powers of the board of adjustment set forth in Iowa Code section 414.12 are:
1. To 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.
2. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.
3. To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.
See also Holland v. City Council, 662 N.W.2d 681, 683 (Iowa 2003).
Sojka argues the matter before us does not involve a special exception or a variance or approval of a zoning permit; consequently, the Board does not have jurisdiction to review the decision of the zoning officer as the officer was not authorized to make the decision that is disputed. Sojka recognizes the officer has authority to approve building permit applications but argues, for the officer to have authority to issue a specific permit, the proposed construction must conform to the ordinances and must be for property located within a subdivision or re-subdivision approved by the planning and zoning commission and the city council. Sojka contends that the Kalkases' lot was not subdivided as required by the Code of Iowa and the Harlan Code of Ordinances; therefore, the action of the zoning officer in issuing the permit was illegal, and the Board cannot approve an illegal act. He argues that the district court could not have found any substantial credible evidence to support the Board or the officer's actions, as the permit was void at its issuance.
Harlan Code of Ordinances section 165.02(2) provides:
There shall be no building or repair permits issued by the City for any structure located in any subdivision3 unless the subdivision has been platted, subdivided, or approved as required by the laws of the State and the provisions of this chapter.
(Emphasis added). The Kalkases' lot containing 1.94 acres more or less is a part of Lot D of Lot 4 of Auditor's Lot 1 of the southwest quarter of the southeast quarter of section 13 Township 79 north, Range 39 west of the 5th Prime Meridian, Shelby County, Iowa. Lot 4 was subdivided in 1953 and Lot D came from that division. In April of 1999 Lot D was surveyed and the surveyor charted three lots and gave the three lots including the Kalkases' lots metes and bounds descriptions. The Kalkases purchased one lot plus an additional four feet from another lot in August of 2000. Plats of survey were recorded that match the description of the Kalkases' lot.
The Board points to the fact that the plats of survey were recorded and, in reading the Harlan ordinance together with Iowa Code section 354.6, this was sufficient.
Iowa Code section 354.6(1) provides:
A subdivision plat4 shall be made when a tract of land is subdivided by repeated divisions or simultaneous division into three or more parcels, any of which are described by metes and bounds description for which no plat of survey is recorded.5 A subdivision plat is not required when land is divided by conveyance to a governmental agency for public improvements.
(Emphasis added).
The Board...
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