Opinion
No. 5-867 / 05-0327
Filed March 29, 2006
Appeal from the Iowa District Court for Hancock County, John S. Mackey, Judge.
In this zoning dispute, the City of Britt appeals from a district court order denying its application for injunctive relief and granting the property owner's writ of certiorari. AFFIRMED.
Thomas S. Reavely of Whitfield Eddy, P.L.C., Des Moines, for appellant.
James M. Stanton of Stanton Sorensen, Clear Lake, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
A city appeals a district court ruling that allowed a variance from the city's zoning ordinance and refused to abate a claimed nuisance. We affirm.
I. Background Facts and Proceedings
Jeffrey Cheney owns a corner lot in Britt, Iowa. Cheney placed a modular home on the property and later added a breezeway connecting the new home to an existing garage. Meanwhile, the City of Britt adopted a comprehensive zoning ordinance. Although Cheney's home violated the ordinance's set-back requirement for corner lots, the City deemed it a permissible prior nonconforming use.
In 2003, a fire damaged the kitchen and roof of Cheney's home as well as the garage and breezeway. Shortly after the fire, the City of Britt notified Cheney that his "burned-out residence" was a nuisance that needed to be abated. The City later sent a second notice identifying the nuisance as "allowing a nonconforming building or structure that has been damaged more than 50% to remain upon the above described real estate in violation of Section 6, Article 16, City of Britt's Zoning Ordinance 2001."
Cheney did not abate the claimed nuisance and the City sued. The district court stayed the action to allow Cheney to request a variance from the zoning ordinance. When his request was denied by the City's Board of Adjustment, Cheney filed his own lawsuit, alleging the Board's action was "unreasonable, arbitrary, and capricious." Following trial on both petitions, the district court ruled for Cheney on all issues currently in dispute. The City of Britt appealed.
The district court agreed with the City that Cheney needed to abate a separate nuisance involving "trash and rubbish on the exterior portion of his residence." Cheney has not appealed from this portion of the court's ruling.
II. Violation of Zoning Ordinance A. Damage to Nonconforming Structures.
The portion of the City of Britt's zoning ordinance cited in its second notice of abatement states that nonconforming structures that are "damaged more than fifty (50) percent of its replacement value exclusive of the foundations at the time of damage by fire . . . shall not be restored or reconstructed and used as before such happening." The ordinance also provides that a structure damaged "less than fifty (50) percent of the building occurring above the foundation" may be restored.
The district court found that "the damage to the Cheney residence [did] not exceed 50% of its replacement value." Based on this finding, the court concluded that the "Board of Adjustment's action in denying Cheney a variance from the 15-foot side yard set-back requirements was unreasonable and may very well have been discriminatory." The court also concluded that the City "failed to meet its burden of proof to establish a nuisance pursuant to [the nonconforming structures provision], as prayed for in its Petition in Equity."
Our review of the court's ruling on Cheney's certiorari petition is for correction of errors of law. Helmke v. Bd. of Adjustment, 418 N.W.2d 346, 348 (Iowa 1988). We are bound by the district court's fact findings if supported by substantial evidence. Id. Our review of the city's petition seeking abatement of a nuisance is de novo. Iowa R. App. P. 6.4.
1. Ruling on Denial of Variance Request.
We turn first to the court's ruling relating to the Board's denial of a variance. The court's finding that the damage to Cheney's home did not exceed fifty percent of its replacement value is supported by substantial evidence. Cheney offered unrebutted evidence of his actual, out-of-pocket expenses for repair of his home. He stated he expended a little less than $4000 and he estimated that he would have to spend an additional $150. He also offered a contractor's $6020 estimate for repair of the home.
The City faults these figures on the ground that Cheney did not include the cost of repairing the garage and breezeway. However, even if the City's cost figures for those structures were added to Cheney's figures for the house, the damage amount would fall well below the fifty percent mark set forth in the ordinance.
The City also points to a report it commissioned that concluded damage to the home was fifty-five percent or more of its replacement value. As the district court noted, the report omitted several key items. Specifically, it
did not include any floor replacement costs, the significant cost of shifting the house in order to conform to the 15-foot side yard set-back requirement, and further did not include the higher replacement cost of a modular as opposed to a stick-built structure.
This finding is supported by the testimony of a structural engineer, called as an expert witness on behalf of Cheney. He faulted the report's author for not including the floor and framing costs in his calculation of replacement costs and for his use of replacement costs associated with a stick-built home rather than a modular home. The expert opined that the home, garage, and breezeway were damaged less than fifty percent of their replacement value.
While we agree with the City that, under the terms of Section 6, Article 16, the cost of shifting the home's foundation to comply with the set-back ordinance cannot be considered in the building's replacement cost, the district court's inclusion of these costs does not provide the City a basis for relief from the district court's judgment. Even if the cost of moving the foundation is excluded from the replacement cost, the City has still not offered substantial evidence that Cheney's home sustained damage exceeding fifty percent of its replacement cost.
As Cheney's counsel pointed out, an increase in the replacement cost would have resulted in an increase in the amount of damage the home could sustain before reaching the fifty percent mark.
The City next argues that the Board's action was not arbitrary because Cheney's own insurance company determined the home was "a total loss." The district court concluded the "insurance company's decision to pay [Cheney] the total fire loss benefit is hardly probative of the 50% damage to replacement cost ratio required to determine compliance with the city's zoning ordinance." We find no error in this conclusion. The City did not rely on the insurance company's decision when it issued the second notice of abatement. Instead, it sought an engineer's opinion on replacement cost. The engineer did not characterize Cheney's property as a total loss.
Finally, the City argues that the district court impermissibly substituted its judgment for that of the Board. We disagree. It is apparent from our discussion of the court's findings and conclusion that the court did not "decide the case anew" but instead found insubstantial support for the Board's decision. Helmke, 418 N.W.2d at 347. This is the standard the court was obligated to apply.
As substantial evidence supports the district court's determination that the damage to Cheney's property did not exceed fifty percent of its replacement value, the district court did not err in concluding the Board's denial of a variance was arbitrary. Cf. Trott v. City of International Falls, 230 N.W.2d 60, 61 (Minn. 1975) (under similar facts and applying a similar ordinance, holding City's conclusion that building sustained fire damage exceeding fifty percent of its replacement cost was not supported by substantial evidence). 2. Denial of Petition for Enforcement of Second Abatement Notice.
We question the need for and appropriateness of a variance. The district court determined the house was not damaged more than fifty percent of its replacement value. Therefore, the house retained its status as a permissible prior nonconforming use and there was arguably no need for a variance. Our opinion affirming the district court's finding concerning damage to the home and the district court's resolution of the petition in equity may render the certiorari petition moot. However, as neither party has briefed the interrelationship of the two actions, we have addressed the merits of the certiorari petition as well as the equity petition.
We next address the court's ruling on the City's petition to enforce its second abatement notice, premised on the ordinance's provision on damage to nonconforming structures. On our de novo review, we agree with the district court that the City did not prove the structures on Cheney's property sustained damage in excess of fifty percent of their replacement value. As noted, the engineer's report on which the City relied was fundamentally flawed and the evidence proffered by Cheney established that the actual damage to the house was substantially less than the damage estimates proffered by the City.
3. Additional Argument Raised by the City.
The City contends that the requirements of Iowa Code section 414.12(3) (2003) were not satisfied. That section allows a variance if an applicant demonstrates unnecessary hardship by virtue of the literal enforcement of an ordinance. Cheney did not rely on this provision in seeking a variance, nor did the Board cite this provision in denying the request for a variance. Therefore this issue is not properly before us.
B. Dangerous Buildings.
The City of Britt's first notice of abatement was premised on that portion of the ordinance regulating "the removal, repair, or dismantling of dangerous buildings or structures." The City argues that the district court erred in failing to find a nuisance under this provision. We question whether error was preserved on this issue, as the district court did not address this portion of the ordinance in its original findings and conclusions or in its post-trial ruling. Bill Grunder's Sons Constr., Inc. v. Ganzer, 686 N.W.2d 193, 197-98 (Iowa 2004). Bypassing this error preservation concern, we find scant evidence that the structures on Cheney's property were "dangerous buildings or structures." The mayor of the City stated the building was not dangerous on the day of trial and the City's engineering report made no express mention of danger. Furthermore, both the City's engineer and Cheney's engineer testified the building was not unsafe at the time of trial. The City argues that this evidence was irrelevant because the pertinent date for assessing damage was the date of the fire rather than the date of trial. If we were to accept this argument, no homeowner could ever abate a nuisance.
Assuming without deciding that the district court ruled on this issue, we conclude it acted equitably in denying the City's request for abatement.
III. Disposition
We affirm the district court's decisions. We find it unnecessary to address the parties' remaining contentions.