Opinion
No. 3-728 / 02-1670, 3-723 / 02-1495
Filed November 17, 2003
Appeal from the Iowa District Court for Webster County, Joel E. Swanson, Judge.
LDMG Corporation appeals from the Board of Adjustment's denial of its application for a special use permit in case No. 3-723. LDMG claims the court erred in dismissing its claim that the Board's action constituted a public taking of property without just compensation in case No. 3-728. REVERSED AND REMANDED IN NO. 3-723; AFFIRMED IN NO. 3-728.
Jerry L. Schnurr III and Ernest Kersten of Schnurr, Fitzgerald Kersten, Fort Dodge, for appellant.
Timothy N. Schott, County Attorney, and Wendy S. Samuelson, Assistant County Attorney, for appellee in No. 3-723.
Patrick J. McNulty and Donna R. Miller, Grefe Sidney, P.L.C., Des Moines, for appellee in No. 3-728.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
LDMG Corporation appeals from the Webster County Board of Adjustment's denial of its application for a special use permit. LDMG in case No. 3-723 claims: (1) the Board did not have jurisdiction to consider its application; (2) the district court abused its discretion by not permitting discovery in this case on the issue of ex parte communications; (3) the Board should have made written findings and conclusions; and (4) the district court abused its discretion in denying LDMG's motion to compel and in granting the Board's motion for protective order. In case No. 3-728 LDMG claims the court erred in dismissing its claim that the Board's action constituted a public taking of property without just compensation. We reverse and remand in case No. 3-723. We affirm in case No. 3-728.
I. Background Facts Proceedings
LDMG owns a tract of land in Webster County, which was zoned for agricultural use. LDMG wanted to extract black dirt, clay, sand, and gravel from its property. Under the Webster County Zoning Ordinance, a special exception use permit was required for "[e]xtraction and processing of minerals or raw materials, including limestone, cement, clay, gypsum, and other similar natural materials."
In July 2001 LDMG filed an application for a special exception use permit with the Webster County Board of Adjustment. A hearing on the matter was held on September 24, 2001. There was some opposition to the application by members of the public. The Board's minutes state, "[p]ublic became obnoxious and unruly. Board thought it best to table application for cooling off period."
On October 31, 2001, LDMG sent a letter to the Board stating it was withdrawing its request to extract clay, sand, and gravel. LDMG asked the Board to grant "our remaining permit to sell the dirt we have, and finish our road we have started." A second hearing was held on November 5, 2001. Board members had some questions about LDMG's proposed operations. The minutes show the Board decided to deny the original permit and requested LDMG to reapply within thirty days.
LDMG appealed to the Webster County Board of Supervisors. The Supervisors denied LDMG's application. LDMG then filed a petition for writ of certiorari, declaratory judgment, and money damages. The district court severed the petition for writ of certiorari from the other claims. LDMG served interrogatories on the Board, seeking information about allegations Board members had received ex parte communications. The Board refused to engage in discovery, claiming it was not appropriate in a certiorari action. The district court denied LDMG's motion to compel.
Generally, review of a board of adjustment's decision is by certiorari to the district court. See Iowa Code § 335.19 (2001). Certiorari is not the exclusive remedy, however, and a declaratory judgment action may also be appropriate. Fox v. Polk County Bd. of Supervisors, 569 N.W.2d 503, 508 (Iowa 1997).
On September 9, 2002, the district court addressed the claims found in the writ of certiorari. The court determined the Board had properly followed the procedures set forth in the zoning ordinance. The court found the Board had jurisdiction over LDMG's application. The court also found LDMG failed to show there were ex parte communications which affected the decision of the Board. The court found that even though the Board did not make written findings, there was sufficient information in the minutes of the Board meetings to review the Board's actions. The court concluded LDMG should reapply for a special exception use permit.
On October 16, 2002, the court addressed LDMG's claim for damages based upon statutory and constitutional violations. The court concluded LDMG had not adequately exhausted its remedies, as required by Iowa Coal Mining Co. v. Monroe County, 555 N.W.2d 418, 431 (Iowa 1996), and was not entitled to relief. LDMG has appealed the district court's rulings in these cases.
II. Standard of Review
Under Iowa Code section 335.21 (2001), a challenge to a decision rendered by a county board of adjustment is tried de novo in the district court. Ackman v. Board of Adjustment, 596 N.W.2d 96, 100 (Iowa 1999). On appeal, we review the district court's decision for the correction of errors at law. Id. We are bound by the district court's factual findings if they are supported by substantial evidence in the record. Id.
The term "de novo" as used here does not bear its equitable connotation. Weldon v. Zoning Bd. of Adjustment, 250 N.W.2d 396, 400 (Iowa 1977). A court is authorized to take additional testimony, but only for the submission and consideration of questions of illegality raised by the petition for writ of certiorari. Id. Trial de novo in the district court permits a determination of whether additional testimony is necessary in a case. Anderson v. Jester, 206 Iowa 452, 463, 221 N.W. 354, 359 (1928).
Our review of the district court's dismissal of the declaratory judgment claims is for the correction of errors at law. Iowa R.App.P. 6.4; Fox v. Polk County Bd. of Supervisors, 569 N.W.2d 503, 507 (Iowa 1997).
III. Case No. 3-723
A . Jurisdiction
LDMG claims it applied for a special exception use permit in an abundance of caution and that it does not actually need a permit to remove black dirt, or topsoil, from its property. It points out that the zoning ordinance requires a special exception use permit for the extraction of "raw materials, including limestone, cement, clay, gypsum, and other similar natural materials." LDMG asserts black dirt is not a raw material, because it will not be converted by manufacture, processing, or combination into something else.
Although we give deference to a board of adjustment's interpretation of zoning ordinances, final construction and interpretation of zoning ordinances is a question of law for us to decide. Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d 541, 543 (Iowa 1996). In interpreting ordinances, it is appropriate to apply the general rules of construction for statutes. Id. We first look to the ordinance's language and need look no further if the ordinance's terms are plain and clear. Baker v. Board of Adjustment, ___ N.W.2d ___, ___ (Iowa 2003).
The term, "raw material," is not defined in the Webster County Zoning Ordinance. The ordinance, however, gives several examples of raw materials, such as limestone and clay, and provides "other similar natural materials" will be considered raw materials. The Oxford English Dictionary defines "natural" as "a matter having its basis in the natural world or in the usual course of nature; not altered or improved in any way." The Shorter Oxford English Dictionary 1890 (5th ed. 2002). "Natural is also defined by Black's Law Dictionary as "untouched by man or by influences of civilization; wild; untutored, and is the opposite of the word `artificial.'" Black's Law Dictionary 712 (Abridged 6th ed. 1991). "Material" is defined by The Oxford English Dictionary as "the matter of which a thing is or can be made, constituent parts of something." The Shorter Oxford English Dictionary 1718 (5th ed. 2002). We determine black dirt is a natural material similar to those listed in the ordinance, and that it should be considered a raw material. We conclude the Board had jurisdiction to consider LDMG's application for a special exception use permit.
B . Ex Parte Communications
LDMG contends the Board's action was invalid because Board members had received ex parte communications from members of the public. At a hearing before the district court, the Board's attorney admitted:
As far as the ex parte communications, I just I can't answer to that at this moment, Your Honor, from what little I know here I think there were calls that were made by people who were upset about the application to the Board of Adjustment members, I think some of the members did instead of hanging up on these people did take their calls. I don't know the extent of the conversations
. . . .
We have previously determined that when exercising their adjudicatory functions, members of county boards of adjustment should not participate in ex parte communications with interested parties. Rodine v. Zoning Bd. of Adjustment, 434 N.W.2d 124, 127 (Iowa Ct.App. 1988).
LDMG served interrogatories on the Board, seeking information regarding the scope and nature of the alleged ex parte communications in order to determine whether the communications affected the Board's decision. The Board claimed that the rules of civil procedure pertaining to certiorari did not allow for discovery. LDMG then filed a motion to compel. The district court denied the motion, finding "[t]he very nature of the Court's review of the Defendant's actions does not require any further discovery."
A district court has discretion to receive evidence at a certiorari proceeding. Fisher v. Chickasaw County, 553 N.W.2d 331, 334 (Iowa 1996). Iowa Rule of Civil Procedure 1.1410 provides:
It its discretion, [the district court] may receive any transcript of the evidence taken in the original proceeding, and such other oral or written evidence as is explanatory of the matters contained in the return. Such transcript and additional evidence shall be considered for the sole purpose of determining the legality of the proceedings, and the sufficiency of the evidence before the original tribunal, board or officer. . . .
"If all the material facts appear in the record, or are not disputed, or only questions arising upon the record are presented, the taking of evidence is not necessary." Baker, ___ N.W.2d at ___ (quoting Anderson v. Jester, 206 Iowa 452, 461, 221 N.W. 354, 359 (1928)). On the other hand, under section 335.21, if it appears that testimony is necessary for the proper disposition of a case, the district court may take evidence. Trial de novo is permitted in the district court in order to allow that court to determine whether additional testimony is necessary in a case. Anderson, 206 Iowa at 463, 221 N.W. at 359. The parties are entitled to take testimony when a determinative issue of fact is raised. Id. at 462, 221 N.W. at 359.
An ex parte communication occurs when a board member communicates, directly or indirectly, in connection with a matter before the board, with any person or party, except upon notice and opportunity for all parties to participate. See Iowa Code § 17A.17(1). Thus, ex parte communications, by their very nature, happen outside the record. The record before the Board is insufficient to address the issue of whether the Board's decision was illegally tainted by ex parte communications.
We determine the district court abused its discretion by ruling that further discovery was not necessary in this case. It is clear that in order for LDMG to have an opportunity to establish its claim of ex parte communications, LDMG needed to present evidence beyond that brought before the Board. We conclude the case should be reversed and remanded to the district court to allow LDMG the opportunity to gather evidence to support its claim of ex parte communications.
We conclude the letter from Pauline Ball, who was a member of the Webster County Board of Adjustment, is not an ex parte communication.
In the alternative, LDMG raises a claim that the admission by the Board's attorney that there were ex parte communications should be sufficient to declare the Board's decision null and void. We determine this admission, standing alone, is not sufficient to overturn the Board's decision.
C. Written Findings
LDMG asserts the Board's ruling was improper because it failed to make written findings of fact and conclusions of law. The rule is that "boards of adjustment shall make written findings of fact on all issues presented in any adjudicatory proceeding." Citizens Against Lewis Clark (Mowery) Landfill v. Pottawattamie County Bd. of Adjustment, 277 N.W.2d 921, 924 (Iowa 1979). Such findings must be sufficient to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted. Id.
The Board did not make any written findings of fact in this case. The district court determined that the minutes of the Board meetings provided sufficient information to review the issues raised in this case. While we recognize that the Board should have made written findings, we conclude our review of the issues raised in this appeal would not be aided by a remand for written findings by the Board.
D. District Court's Ruling on Discovery
We have already determined above that the district court abused its discretion in denying LDMG's motion to compel and granting the Board's motion for protective order. Case No. 3-723 should be reversed and remanded to the district court to allow LDMG the opportunity to discover evidence concerning the ex parte communications in an attempt to support its claim.
IV. Case No. 3-728
A. Unconstitutional Taking of Property
LDMG claims the Board's action constitutes a taking of private property without just compensation, in violation of its due process and equal protection rights under the federal and State constitutions. LDMG sought damages under 42 U.S.C. § 1983 (2001) as a result of this alleged unconstitutional taking.
When there is a permanent physical invasion of property, or a government regulation denies an owner all economically beneficial or productive use of the land, it is considered a taking, and the State must pay just compensation. Iowa Coal Min. Co. v. Monroe County, 555 N.W.2d 418, 431 (Iowa 1996) (citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028-29, 112 S.Ct. 2886, 2900, 120 L.Ed.2d 798, 821 (1992)). No recovery is due until an owner exhausts all administrative remedies. Id. So, also, a case must be ripe for adjudication. Id. at 432.
In order for a regulatory takings claim to be considered ripe, there must be finality in the underlying proceedings, and the landowner must exhaust state remedies available to vindicate the owner's rights. Id. "A court can make no determination of the takings claim until the regulatory authority under the ordinance makes that final decision." Id. at 434. A party must exhaust its state remedies. Id. A negative decision by the supreme court would satisfy the exhaustion requirement. Id. at 436.
In the present case, the district court determined LDMG had not exhausted its state remedies, because there had been no negative decision on the merits of its case by the supreme court. The court concluded LDMG's claims were not ripe for adjudication.
LDMG points out that in Blumenthal Investment Trusts v. City of Des Moines, 636 N.W.2d 255, 263 (Iowa 2001), the supreme court pointed out that while a Fifth Amendment takings claim brought under section 1983 must satisfy both conditions of finality and exhaustion, the exhaustion of state remedies is not a prerequisite to a section 1983 substantive due process claim.
In the present case, there is neither finality nor exhaustion because we have determined case no. 3-723 must be remanded to the district court. We, therefore, affirm the district court's conclusion that LDMG's takings claim is not ripe for adjudication at the present time.