Condon Cabin, LLC, Elizabeth Nicolai, Kathrine M. Hedges, R & T Equipment, Inc., Donald and Marlene Nielsen, and John and Barby Rockwell v. Dickinson County Board of Adjustment, Allan W. Mohling and Cynthia M. Mohling, Appellee-Intervenors. ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1345
Filed September 28, 2016
CONDON CABIN, LLC, ELIZABETH NICOLAI,
KATHRINE M. HEDGES, R & T EQUIPMENT, INC.,
DONALD AND MARLENE NIELSEN, AND JOHN AND
BARBY ROCKWELL,
Appellants,
vs.
DICKINSON COUNTY BOARD OF ADJUSTMENT,
Appellees,
ALLAN W. MOHLING and CYNTHIA M. MOHLING,
Appellee-Intervenors.
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Appeal from the Iowa District Court for Dickinson County, Patrick M. Carr,
Judge.
Plaintiffs appeal the district court decision affirming the grant of a variance
by the Dickinson County Board of Adjustment. AFFIRMED.
Daniel E. DeKoter and Nathan J. Rockman of DeKoter, Thole & Dawson,
P.L.C., Sibley, for appellants.
Phil Redenbaugh of Redenbaugh, Mohr, & Redenbaugh, P.C., Storm
Lake, and Lonnie B. Saunders of Saunders’ Law Office, Spirit Lake, for
appellees.
Donald J. Hemphill of Hemphill Law Office, P.L.C., Spencer, for appellee-
intervenors.
Heard by by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Condon Cabin L.L.C., et al (Condon) appeals the district court ruling
upholding the grant of a variance by the Dickinson County Board of Adjustment
(Board). Condon claims the Board acted illegally by failing to make written
findings as to nearly all required factual issues, never approving a final and true
site plan, and making contradictory factual findings.1 Condon also claims the
Board’s actions fail to substantially comply with the requirements set forth in
Citizens Against Lewis & Clark (Mowery) Landfill v. Pottawattamie County Board
of Adjustment, 277 N.W.2d 921 (Iowa 1979) and Bontrager Auto Service, Inc. v.
Iowa City Board of Adjustment, 748 N.W.2d 483, 484 (Iowa 2008). We find the
Board substantially complied with the requirements. Accordingly we affirm.
I. Background Facts and Proceedings
Condon and the Mohlings own adjacent property on West Okoboji Lake.
The properties in question were built before the present Dickinson County Zoning
Ordinance was enacted and as a result do not conform to the now required front
and side yard setbacks. The Mohling property is also situated at the lowest
elevation in the area and drains approximately ten acres of surface water into the
lake. A twenty four inch diameter corrugated drainage tile was installed during
the 1990’s to improve drainage.
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Condon claims the Board’s findings and conclusions are unsupported by substantial
evidence. “If the appellant intends to urge on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, the appellant shall include in
the record a transcript of all evidence relevant to such finding or conclusion.” Iowa R.
Civ. P. 6.803. The Board conducted five hours of hearings on this matter, but no
transcript was entered into evidence or created by either party. We reaffirm the need for
parties to provide such transcripts as required by our rule but find it contrary to the
interests of justice to dismiss Condon’s claim for this failure.
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The Mohlings acquired their property in 2013 and decided to improve it to
be used as a year-round residence. To accomplish these changes the Mohlings
required variances for both the front and side yard setbacks. The Mohlings
submitted their application in early December 2013 citing, among other things,
small lot size, and other similar variance requests being granted to other
applicants. A hearing was scheduled for December 23. Prior to the hearing,
many area residents wrote to the Board expressing concerns with the proposed
improvements, mainly the impact it would have on drainage. The hearing was
held and the residents continued to express their objections. The Mohlings
agreed to continue the hearing until January 20, 2014.
Mark Blum, a surveyor for the Mohlings, prepared a new plan in order to
address the drainage issues. The resulting plan would have included swales
slightly encroaching on the Mohlings’ neighbors’ property but would have dealt
effectively with the concerns raised and met the standards of the zoning
ordinance requiring a water quality management plan. This plan was rejected by
the residents who refused to allow the improvements on their property. They
also conferred privately with counsel regarding possible collective action to
upgrade the drainage pipe under the Mohlings property. The plan was rejected
due to the division of costs.
The Mohlings’ northern neighbors objected to the side yard variance. The
Mohlings offered to reduce the variance from three feet, to a mutually agreeable
five feet setback, requiring a slight change to the submitted site plan. The
neighbors again expressed concern about drainage, but the Board appeared
satisfied the Mohlings’ updated plan would adequately resolve this issue. After
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some procedural confusion as to which plan was being voted on, the Board
approved the variance with five foot setbacks and all drainage improvements to
be only on the Mohling property. Three members voted for the plan, two voted
against, and the Board recorded the reasons for their votes in writing.
On February 18, 2014, Condon timely filed a petition for a writ of certiorari
and the district court issued a writ on February 25. The Mohlings’ motion to
intervene was granted without objection. The case was tried by the district court
which affirmed the ruling of the Board on July 15. Condon appeals.
II. Standard of Review
Iowa Rule of Civil Procedure 1.1412 controls review of an appeal from a
district court's decision on a writ of certiorari. Baker v. Bd. of Adjustment, 671
N.W.2d 405, 414 (Iowa 2003). It provides an “[a]ppeal to the supreme court lies
from a judgment of the district court in the certiorari proceeding, and will be
governed by the rules applicable to appeals in ordinary actions.” Iowa R. Civ. P.
1.1412. Therefore, our review is for assigned errors only. Baker, 671 N.W.2d at
414. We are bound by the district court’s findings only if they are supported by
substantial evidence. Chrischilles v. Arnolds Park Zoning Bd. of Adjustment, 505
N.W.2d 491, 493 (Iowa 1993). “Evidence is substantial ‘when a reasonable mind
could accept it as adequate to reach the same findings.’” City of Cedar Rapids v.
Mun. Fire & Police Ret. Sys., 526 N.W.2d 284, 287 (Iowa 1995) (citation
omitted). “We are not bound by erroneous legal rulings that materially affect the
court’s decision.” Id. (citation omitted).
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III. Sufficiency of the Board’s Findings
The issue of zoning variances and the actions of boards in granting them
has resulted in our courts gradually providing less stringent requirements for
board approval. The Iowa Supreme Court in Citizens Against originally stated
“boards of adjustment shall make written findings of fact on all issues presented
in any adjudicatory proceeding.” 277 N.W.2d at 925. However in Bontrager, 748
N.W.2d at 488, the court held that a board only needs to substantially, and not
literally, follow this requirement. We will find substantial compliance if the rule
“has been followed sufficiently so as to carry out the intent for which it was
adopted.” Id. (citation omitted). The rule’s intent is “to enable a reviewing court
to determine with reasonable certainty the factual basis and legal principles upon
which the board acted.” Citizens Against, 277 N.W.2d at 925. In effect, the
Board’s findings need not be written if the Board’s factual basis and legal
principles can be determined without them.
A. Rules of the Board
Condon claims the document captioned “Instructions for Variance
Application” establishes the rules of the Board. Condon believes the Board must
address each of the seven specific findings in order to grant a variance.
However, the district court held the document to be “an information sheet
designated to educate applicants about the formalities necessary [to receive a
variance].” We find the district court’s holding to be supported by substantial
evidence and agree all seven specific findings need not be addressed in each
decision impacting a variance.
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Condon further claims if this document does not represent rules adopted
in conformance with the statute the Board’s actions are per se illegal. See
Citizens Against, 277 N.W.2d at 923 (“We hold the failure of the board to adopt
rules as directed by both the statute (§358A.12) and the ordinance (§61)
invalidates the grant of the permit. . . .”). We find this argument is flawed. The
failure of Condon’s document to be declared formal rules only proves the
“Instructions for Variance Application” were not rules. It does not follow from this
finding there are no rules. Neither party below claimed or presented evidence
the Board failed to adopt rules. Condon has only succeeded in proving the
offered documents were not the rules, it has not succeeded in proving the rules
do not exist.
B. Required Findings
In order to determine what findings the Board must make we examine the
Dickinson County Zoning Ordinance itself. It provides:
1. A written application for a variance is submitted demonstrating:
a) That special conditions and circumstances exist
which are peculiar to the land, structure, or building
involved and which are not applicable to other lands,
structures, or buildings in the same district.
b) That literal interpretation of the provisions of this
Ordinance would deprive the applicant of rights
commonly enjoyed by other properties in the same
district under the terms of this Ordinance.
c) That the special conditions and circumstances do
not result from the actions of the applicant.
d) That granting the variance requested will not confer
on the applicant any special privilege that is denied by
this Ordinance to other lands, structures, or buildings
in other districts.
After the application is received the zoning ordinance provides:
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5. The Board of Adjustment shall further make a finding that the
reasons set forth in the application justify the granting of the
variance, and that the variance is the minimum variance that will
make possible the reasonable use of the land, building or structure.
6. The Board of Adjustment shall further make a finding that the
granting of the variance will be in harmony with the general purpose
and intent of this Ordinance and will not be injurious to the
neighborhood, or otherwise detrimental to the public welfare.”
Dickinson County, Iowa, Zoning Ordinance art. 28, §5(C)(1, 5-6).
The ordinance only requires the Board to make findings concerning
reasons which justify the variance, the variance is harmonious with the
ordinance, and the variance will not be injurious to neighbors and the public
welfare.
The Board made findings on the issues required of them. The record
contains the ordinance, the application submitted by the Mohlings, the testimony
of Allan Mohling, their contractor, their surveyor, and a host of neighbors. With
this information the Board could decide all three of the findings required of them.
This combined with the vote approving the setbacks and drainage plan
constitutes substantial evidence the Board made the required findings.
C. Contradictory Findings
Condon claims the Board’s findings were contradictory. On a form titled
“Findings of the Board of Adjustment [:] Variance Application” the Board recorded
three items in the “Reasons for denial or conditions of approval” section. The
district court summarized the writing:
“…[T]he form asked for ‘Reasons for denial or conditions of
approval are: . . .’ In handwriting it was inserted: ‘Approved: 1Ai.-
something unique or special about the property.’ Beneath that was
written: ‘Deny: B.[V]. The variance will be harmful to the
neighborhood or detrimental to the public welfare.’ Beneath that:
‘3a. Merely a convenience to the applicant.’ Jeff Ashland as
secretary of the Board endorsed approval on the application. It was
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noted in handwriting that ‘Application is approved with the change
in the garage plan to 5’ side yards with Jim Blum’s proposed
drainage plan on the Mohling property only.’”
Condon claims the writing shows the Board made contradictory findings of
fact, and therefore, the Board is not in substantial compliance with the
requirements of Citizens Against, 277 N.W.2d at 925. We disagree and find the
conflicting statements simply reflect the division of the vote. We find the two
dissenting votes had their reasoning recorded along with the prevailing reason
the three affirming voters approved the variance. Additionally, the minutes of the
two board meetings, testimony, written applications, and site plans contain
enough information for the trial court and reviewing courts to assess the process
and reasoning of the Board.
Finally, the neighbors claim the Board was also required to approve the
final and true site plan. The Mohlings’ final site plan – which was the only plan
showing the negotiated five foot setbacks and the drainage plan utilizing only the
Mohlings’ property – was never approved by the Board, however, we have
determined this document does not contain the rules of the Board, and therefore,
we need not address this claim.
We affirm the decision of the district court.
AFFIRMED.