Opinion
No. 2-049 / 00-1299.
Filed May 15, 2002.
Appeal from the Iowa District Court for Linn County, DOUGLAS S. RUSSELL, Judge.
City appeals local zoning board's issuances of conditional use permits. AFFIRMED.
Kevin P. Shea of Shea Law Offices, Cedar Rapids, for appellant.
Todd D. Tripp, Assistant County Attorney, for appellee
H. Raymond Terpstra II of Terpstra, Epping Willett, Cedar Rapids, for intervenor-appellee.
Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
The City of Bertram appeals the district court's dismissal of its petition for writ of certiorari as to Linn County Board of Adjustment's issuance of two conditional use permits. We affirm.
Background Facts and Proceedings . On November 21, 1997, Larry and Marilyn Hess and Wendling Quarries, Inc. applied to the Linn County Planning and Development Department for conditional use permits, which would allow extraction of sand and gravel from certain property. Pursuant to local zoning ordinances, the Linn County Board of Adjustment (the Board) published in the local newspaper timely notice of its January 6, 1998, public hearing. Linn County Zoning Regulations § 1.26(4)(b)(1). The conditional use applications at issue in this case did not come before the Board until 9:00 p.m. on the night of the hearing, and public discussion was not opened until 11:00 p.m. At that time the Board's chairman stated public comment could only run until 12:00 a.m. No one present was denied an opportunity to speak.
We note the parties cite section 1.25 as the portion of the Linn County Zoning Regulations that govern the Board of Adjustment. However, the copy of the regulations contained within the appendix sets forth the relevant provisions in section 1.26.
Shortly after midnight the Board announced the issue was continued until its February 3, 1998, meeting, at which time discussion would be limited to rebuttal evidence from the applicants and public comment on any new evidence. Following the February 3 hearing, at which the Board received rebuttal evidence and further written objections, the applications were approved. The City of Bertram (the City), a primarily residential community located near the sand and gravel extraction site, filed a petition for a writ of certiorari that challenged the legality of the Board's actions. The district court dismissed the petition, and the City appeals.
Scope of Review . We review such matters for the correction of errors at law, and are bound by the trial court's findings so long as they are supported by substantial evidence in the record. Osage Conservation Club v. Board of Sup'rs of Mitchell County, 611 N.W.2d 294, 296 (Iowa 2000). However, to the extent constitutional issues are raised, our review is de novo. Perkins v. Board of Supervisors of Madison County, 636 N.W.2d 58, 64 (Iowa 2001).
Notice . The City first complains notice of the meeting was inadequate, as the applicants failed to comply with a local zoning regulation that required the Zoning Administrator to provide and the applicants to post at least two signs on the subject parcel. Linn County Zoning Regulations § 1.26(4)(c). The signs were required to detail the proposed use and the time, date, and place of the public meetings, and at least one of the signs had to be visible from a roadway. Id. Actual compliance with the signing requirements was never determined by the district court, as it disposed of the issue by a partial summary judgment ruling.
The court found the signing issue was of "no legal significance":
[T]he Board clearly gave the notice required by due process in the Iowa Code by properly publishing notice of the January 6 meeting and thus it had jurisdiction to act. The failure to properly post signs and the remedy for that failure is one within the discretion of the Board and, because that was not called to the Board's attention, the Court cannot review whether the Board abused its discretion in failing to continue the hearing after being notified that the signage was inappropriate.
The City concedes section 1.26(4)(c)(2) permits, but does not require, the Board to delay action on an application when the applicant fails to timely post the signs, but argues no comparable discretion exists if an applicant simply fails to post the signs or fails to do so in a visible manner as required by section 1.26(4)(c)(1). While discretion to proceed in the face of noncompliance by the applicant is not specifically tied to the physical posting requirements, it is nonsensical to find the Board's discretion is limited to the timing issue alone. If we were to adopt such a stringent interpretation, the Board would be jurisdictionally barred from proceeding if the signs were never posted, yet be allowed to proceed if they were posted mere minutes or even seconds before a meeting.
We agree any established noncompliance with the signing requirement would not serve to deprive the Board of its jurisdiction, so long as due process was otherwise met. See Osage Conservation Club, 611 N.W.2d at 298 (finding local zoning board's subject matter jurisdiction inextricably tied to "minimum" statutory public notice and hearing requirements). Because written notice was published, the public was adequately notified of the hearing. See Iowa Code § 335.6 (1997) (requiring that notice of hearing be made by publication).
Rule Adoption . The City asserts the Board's actions were illegal as it failed to adopt required rules and regulations before taking action. However, as those issues were not raised in the petition for writ of certiorari and were therefore not ruled upon by the district court, they are not preserved for our review. Arkae Development, Inc. v. Zoning Bd. of Adjustment of City of Ames, 312 N.W.2d 574, 575 (Iowa 1981); Connor v. Civil Service Commission of City of Dubuque, 265 N.W.2d 735, 736 (Iowa 1978).
Legality of the Hearing . The City next contends the hearing was conducted in an illegal manner. To the extent this argument is based upon a failure to pass certain rules and regulations, error is waived. Arkae Development, Inc., 312 N.W.2d at 575; Connor, 265 N.W.2d at 736. To the extent it complains the public was deprived of a full and fair opportunity for a hearing, it is without merit, as absolutely nothing in the record establishes any Board action deprived any citizen of a fair opportunity to appear and be heard. See Buchholz v. Board of Adjustment of Bremer County, 199 N.W.2d 73, 77 (Iowa 1972) (holding that due process requires the public be given an opportunity to appear and lodge objections to the permit application).
Issuance of Permits . Finally, the City claims the Board's decision to issue the permits was not supported by the evidence and was therefore illegal. Specifically, it points to the five criteria upon which the Board must make findings and which "serve as the basis for approval or denial of the request" and argues the Board's findings as to two of those criteria — conformance with Linn County's Land Use Policy Plan and the adequacy of the adjoining road system — were not supported by substantial evidence. Linn County Zoning Regulations § 1.26(6). We cannot agree.
It is important to note that in certiorari proceedings our role and the role of the district court are limited in nature and scope. While the district court is allowed to make new factual findings,
[it] is not free to decide the case anew. Illegality of the challenged board action is established by reason of the court's findings of fact if they do not provide substantial support for the board decision. If the district court's findings of fact leave the reasonableness of the board's action open to a fair difference of opinion, the court may not substitute its decision for that of the board.Helmke v. Board of Adjustment, City of Ruthven, 418 N.W.2d 346, 347 (Iowa 1988) (citation omitted). We are then bound by those district court findings so long as they are supported by substantial evidence in the record. Id. at 348.
Here, both the Board and the district court were presented with evidence as to the compatibility of the proposed use of the land with the use policy plan, including, as noted by the court, "issues of . . . green belt, flood plain impact [and] effect on wildlife. . . ." The district court determined that those issues provided substantial support for the Board's conclusions. Although not every item before the Board and the court indicated the proposed use would generally conform with the land use plan, we concur that the evidence presented does provide substantial support for such a determination. Because the district court's findings were supported by substantial evidence and we can identify no error of law that would otherwise dictate reversal of its decision, the City's argument must fail.
The City's second contention presents a slightly different issue. The City does not challenge the sufficiency of the evidence to support the Board's finding that, based on slated highway improvements, the road system would be adequate for the proposed use at the point that use was fully undertaken. Clearly such argument would be without merit, as the Board received substantial evidence as to traffic safety and other roadway issues, including a scheduled highway improvement project, before conditioning approval of the sand and gravel extraction upon certain roadway improvements.
Rather, the City asserts the adequacy of the roadway at any future point is irrelevant and contends the evidence before the Board must demonstrate the road system is adequate for the proposed use at the time the conditional use permit is granted. We find this argument to be wholly without merit. While it is true that the Board must judge the adequacy of road system "in terms of the present traffic volume vs. road capacity," Linn County Zoning Regulations § 1.26(6)(d), we find nothing in the zoning regulations that limits the Board's ability to consider the ultimate "general condition of the road system," id., in terms of a completed improvement project.
AFFIRMED.