Opinion
No. 5-062 / 03-1227
Filed April 28, 2005
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. 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.
The city found the appeal untimely. Sojka appealed to the district court, which disagreed. An appeal was taken to this court and we affirmed the district court on this issue and remanded for further proceedings. Sojka v. Zoning Board, No. 00-2068 (Iowa Ct.App. Mar. 13, 2002).
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 (citing 1A Norman J. Singer, Sutherland on Statutory Construction § 30.06, at 526 (Singer 5th ed. 1993)).
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 Board 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.
Iowa Code section 414.7 requires:
The council shall provide for the appointment of a board of adjustment and in the regulations and restrictions adopted pursuant to the authority of this chapter shall provide that the said board of adjustment may in appropriate cases and subject to appropriate conditions and safeguards make special exceptions to the terms of the ordinances in harmony with its general purpose and intent and in accordance with general or specific rules therein contained and provide that any property owner aggrieved by the action of the council in the adoption of such regulations and restrictions may petition the said board of adjustment direct to modify regulations and restrictions as applied to such property owners.
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 subdivision unless the subdivision has been platted, subdivided, or approved as required by the laws of the State and the provisions of this chapter.
According to Iowa Code section 354.2, "Subdivision" means "a tract of land divided into three or more lots."
(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 plat 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. A subdivision plat is not required when land is divided by conveyance to a governmental agency for public improvements.
Iowa Code section 354.2 defines "Subdivision plat" as the graphical representation of the subdivision of land, prepared by a registered land surveyor, having a number or letter designation for each lot within the plat and a succinct name or title that is unique for the county where the land is located.
Iowa Code section 354.2 defines "Plat of survey" as "the graphical representation of a survey of one or more parcels of land, including a complete and accurate description of each parcel within the plat, prepared by a registered land surveyor."
(Emphasis added).
The Board further argues there is no evidence that any divisions of Lot D of Lot 4 of Auditor's Lot 1 were done for the purpose of either immediate or future sale or building development and only two houses have been built on Lot D. Sojka contends there is evidence of an intention to sell other lots for development. The Board also contends that the purpose of section 354.6(1) is to make it easier for taxing authorities to determine appropriate tax levies and is not intended to be used for the purpose Sojka argues here. The Board further argues if it had no jurisdiction, then it would have had no jurisdiction to find the Kalkases' building permit void and order its abatement.
The Board does have subject matter jurisdiction under section 414.12(1) which provides that the Board of Adjustment has the power "[t]o hear and decide appeals where it is alleged there is error in any order, requirement, or determination made by an administrative official in the enforcement of this chapter or any ordinance adopted pursuant thereto." In Shors v. Johnson, 581 N.W.2d 648, 651 (Iowa 1998), the court held that under this section the Mapton Iowa Board of Adjustment had the power to reverse a decision of the zoning administrator and revoke a previously issued building permit. See also Call Bond and Mortgage Co. v. City of Sioux City, 219 Iowa 572, 587, 259 N.W.2d 33, 40 (1935). While the permit here violated Harlan's subdivision ordinance even though it arguably may not have violated the state statute, Sojka provides no authority to support his contention that the fact the building permit violated the subdivision ordinance deprived the Board of jurisdiction. The Board had jurisdiction to consider Sojka's appeal.
Consultation with the comprehensive plan.
Sojka contends the comprehensive plan for Harlan (Plan) should have been consulted before the permit was issued. He contends the Plan specifically identified his neighborhood, and the land used for building was of particular concern to assure development and construction was compatible with the surrounding neighborhoods. He advances that the Kalkases' property was changed when the Kalkases dumped over fifty truck loads of fill without contacting the Planning and Zoning Commission and that the Kalkases' building permit application should have noted they would fill, change the water flow, and direct water to Sojka's property. He also advances that he produced evidence showing the garage the Kalkases planned to build would detract from his property. He further contends the Plan provides that approved construction and development must protect or enhance private property values and the officer and the Board must act in conformity with the zoning regulations. Sojka argues the building permit did not meet these requirements and was illegal and the Board cannot approve an illegal act.
The Board contends substantial evidence supported its finding that consultation with the city's Plan was not necessary before the zoning administrator issued a building permit for the Kalkases' property. The Board further argues, while the officer was not required to consult the Plan before issuing the permit, if he had, he would have determined the planned project fit with the general scheme of the Plan for the area.
Zoning must be in accord with a comprehensive plan. Holland v. City Council of Decorah, 622 N.W.2d 681, 685 (Iowa 2003). Iowa Code section 414.3 requires that zoning regulations should be made in accordance with a comprehensive plan. Wolf v. City of Ely, 493 N.W.2d 846, 847 Iowa 1992). There is no suggestion that zoning the area R-1 Residential district was not in accord with the Plan. The question for the zoning administrator was whether the Kalkases' house met the zoning requirements of R-1 Residential. Furthermore, we note under section 414.13 the Board may reverse, or affirm, wholly or partly, or may modify the order requirement, decision, or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the office from whom the appeal is taken.
Under this section even if the zoning administrator had been required to consult the Plan the Board had the power under this section to do so and did do so in arriving at its decision. We find no basis to reverse on this issue.
Frontage violations.
Sojka contends the Kalkases' house violates the setback requirements of Harlan zoning regulations. Harlan Zoning Regulation 7.6 requires a setback of thirty-five feet for front yards, ten feet for side yards and thirty-five feet for rear yards in the R-1 residential district.
Sojka contends the front yard setback requirement was not met. The Board disagrees. To address the issue we need to determine whether the Board was correct in determining which area was the front yard, as the parties dispute its location. The building permit did not designate the front yard. The Board contends the district court correctly ruled substantial evidence supported its determination of which area constitutes the front yard. Sojka contends the evidence does not support the Board's determination.
The Kalkases' lot is land-locked and access to it is by a driveway in the southeast corner. The Kalkases' driveway is over a private drive on a portion of Lot 17 located between the southeast corner of the lot and Lincoln Avenue. Lot 17 is owned by one Clyde Kohl, who uses it as a private drive to access his property directly east of the Kalkases' lot. After reaching the Kalkases' lot Kohl's private drive turns east and runs about parallel to Kohl's south lot line.
Sojka contends that the southeast corner of the Kalkases' lot is closest to the private drive and Lincoln Avenue, the distance from the southeast corner to the farthest portion of the lot is 166.503 feet, and the distance from the same point to the farthest point in the eastern portion of the Kalkases' lot is 189.05 feet. He then reasons that because the distance to the farthest point in the southern portion of the lot is less than the distance to the farthest point in the eastern portion of the lot, the southern portion of the lot is the portion of the lot nearest the street and this remains the same whether Lincoln Ave or the private drive is considered the street. He then reaches the conclusion that because the frontage of a lot is the portion nearest the street, the frontage of the Kalkases' lot is the southern portion of the lot along the south lot line. He contends that under this premise the minimum and maximum yard depths are in violation of the zoning regulations.
Sojka contends the front yard can only be between twenty-five feet and 100 feet deep and the front yard is 128 feet deep. He says the back yard must be a minimum of thirty-five feet deep but it is less than twenty feet deep. He also argues that the proposed location of a garage in the southwest section of the lot would place the garage in the front yard in violation of zoning regulations.
The Board admits that the zoning requirements of R-1 require a front yard of at least twenty-five feet and not more than 100 feet. But it contends the house faces east, the front yard is east of the house, and the house is forty-two feet from the east lot line with a seven-foot porch, so there is a thirty-five-foot front yard.
The Board contends Sojka's argument that the south yard is the front yard fails because it ignores provisions that a lot may front on a private drive and that the regulations Sojka uses contemplate a lot bordering on a street, while the Kalkases' lot is a land-locked lot and its borders do not touch a street. The Board also notes Sojka's argument did not take into consideration the definition of yard found in article 2.1 of the Harlan zoning regulations which defines front yard as:
Yard front. . . . In any proposed construction affecting any lot, where the front yard zoning requirement would normally require a front yard which is not in keeping with the prevailing yard patterns of primary structures on the same side of any street and located in the Same City block, the administrative official charged with the enforcement of these zoning regulations may waive the requirement for the normal or required front yard and substitute therefore a special yard requirement which shall not permit any primary structure or addition to any primary structure to reduce the size of the front yard to be any smaller than the smallest front yard on any lot with existing primary structures on the same side of the street in the same block.
(Emphasis added).
We agree with the Board that the zoning officer's determination of the front yard was in accordance with the discretion given him in the ordinance above and that the decision of the Board and district court was supported by substantial evidence. We are bound by the district court's findings if they are supported by substantial evidence. Chrischilles, 505 N.W.2d at 493. We affirm on this issue.
Height requirement violations.
Sojka first notes the building permit application filed was not drawn to scale, it did not show the building height, and the house violated the regulations, as no structure should exceed two and one half stories or thirty-five feet in height. He noted among other things that the city measured the building at less than thirty feet and did nothing further. He contends the house must be both under thirty-five feet and no more than two and one-half stories, counting the basement. The Board contends that, citing other measurements, the building is not too tall, and because there is substantial evidence supporting the district court's decision, it should be affirmed. Sojka makes a valid argument in pointing out that the application for the building permit and the permit did not meet the requirements for the issuance of a permit because it failed to show certain measurements and was not drawn to scale. While we do not condone such procedure, it would appear that because the house was in place at the time of the board of adjustment hearing that the issue was whether the building as placed was in violation of the ordinance.
There was testimony the house was measured from the bottom of the walk-out basement to the top of the peak and it was thirty feet, six inches. There is also evidence that the house was only two and one-half stories, including the basement or cellar as space in the ground under a house as defined in the Harlan ordinance. We have also viewed exhibits showing the house to be one and one-half stories above the basement. The district court found the house was not too high. It did not exceed two and one-half stories and thirty-five feet in height. There is substantial evidence to support that decision and we affirm on that issue. Chrischilles, 505 N.W.2d at 493.
Conflicts of Board Members.
Sojka contends that several Board members had a conflict of interest. He contends Board member Kolbe was related within three degrees to the person who sold the property to the Kalkases and which person he claims might be required to subdivide the property and could still be required to do so. He contends the Board chair Tilk was involved in the sale of the property and said in the presence of other Board members he knew the property did not need to be submitted to planning and zoning, which remarks, Sojka contends, could have tainted the opinions of the other Board members. Sojka contends Board member Burmeister made a disparaging comment about prior proceedings instituted by Sojka calling them "gobbly goop" and thus appears to hold a personal bias against him.
Iowa Code of Judicial Conduct 3(D)(1)( d) states:
A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
d. The judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
. . . .
(III) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.
Iowa Code section 414.8, as to membership on the Board of Adjustment, provides, ". . . A majority of the members of the Board of Adjustment shall be persons representing the public at large and shall not be involved in the business of purchasing or selling real estate."
Sojka contends the district court was wrong in noting Sojka waived his objections to the Board's conflicts of interest because he made no objections at the hearing. He says there is no support for the district court's position, as public officials should without objection disqualify themselves from matters in which they have a conflict, and the Board rules do not require an objection to conflicts of interest and lack any reasonable sort of procedural framework. He cites no authority for his proposition that error does not have to be preserved on this issue.
The Board performs judicial functions within its narrow and specialized jurisdiction. Rodine v. Zoning Bd. of Adjustment, 434 N.W.2d 124, 126 (Iowa Ct.App. 1988) (citing Jarrott v. Scrivener, 225 F. Supp. 827, 833 (D.C. Cir. 1964)). In the performance of this adjudicatory function, the parties whose rights are involved are entitled to the same fairness, impartiality, and independence of judgment as are expected in a court of law. Id. Although procedures and rules of evidence are less rigid in quasi-judicial bodies than in courts, there can be no difference under our concept of justice between the two tribunals in respect of these fundamental requirements. Id.
In Anstey v. Iowa State Commerce Commission, 292 N.W.2d 380, 390 (Iowa 1980), the court suggested that agencies making decisions of great import should be guided by the rationale of the canons of the Iowa Code of Judicial Conduct. In Geringer v. Iowa Department of Human Services., 521 N.W.2d 730, 734 (Iowa 1994), the court noted that those observations must be tempered so as to harmonize with the dictates of the administrative process as established by the legislature.
We agree with the district court that to preserve error this issue should have been raised before the Board, as Sojka had ample opportunity to do so. The failure amounted to a waiver on the issue. See Johnson v. Board of Adjustment of West Des Moines, 239 N.W.2d 873, 877 (Iowa 1987). Sokja was given the opportunity to question the Board about potential conflicts and biases. He also was given the opportunity to discuss with them the need for impartiality of Board members. During such questioning he learned, among other things, that Kolbe was a brother-in-law of the person who sold the property and that Tilk had listed the property and a person from his agency sold it. Sokja also questioned Burmeister's use of the term "gobbly goop" that Sokja heard on a tape. After the extensive questioning Sokja made no objections to any of the Board members sitting on this case and he proceeded to present his claims. Sokja accepted the Board and cannot be heard to complain about it now. See id.
Deliberation transcript.
The Board held an evidentiary hearing in August 2002, then deliberated in public on September 10, and filed its written decision on September 30. Sojka filed what he captioned a motion in limine with the district court contending he would seek to offer into evidence a typed transcript of the audio recording of the deliberation hearing. He contended there was no other transcription of the deliberation portion of the Board's hearing and that the Board's decisions made during the deliberation proceedings were based on facts not presented to the Board during the evidentiary hearings, facts disputed by him, and statements which were false or without factual bases. He argues that to deny his motion would deprive him of his due process rights under the federal and state constitutions. The district court denied the motion.
Sojka contends the deliberation transcripts should have been admitted, as he contends the Board acted illegally during its deliberation and considered new evidence presented to the Board by the city attorney, who is not a member of the Board. He acknowledges the Board may ask the city attorney for comments, but argues the fact-finding is exclusively the purview of the Board, and the city attorney may only provide comment on the law upon the request of the Board.
Sojka also points out that he was present in the deliberation hearing but not allowed to participate, and he tried to object to the process where a public official, the city attorney, participated in a partisan way in the discussion of the facts, commenting on the evidence and actually discussing evidence that was not part of the hearing. No offer of proof of the deliberation transcripts was made. They are required to prove error. State v. Lange, 531 N.W.2d 108, 114 (Iowa 1979). Error was not preserved in this case, as the failure to make an offer of proof leaves us nothing to review. Nizzi v. Laverty Sprayers, Inc., 259 Iowa 112, 119, 143 N.W.2d 312, 316 (1966).
Violation of rights.
Sojka contends his due process rights were violated because: (1) the city did not have a standardized written or a formal intake procedure for applications for building permits, (2) the officer violated the ordinances by not having the plan reviewed by planning and zoning for platting, (3) the officer violated the comprehensive plan when he did not have the Planning and Zoning Commission review the building permit application, (4) the officer improperly issued a building permit because ordinances were violated, (5) the officer violated the zoning ordinance by failing to advise Sojka's wife of her rights to appeal, (6) the Board secretary violated the Board bylaws by not providing information on how to appeal or forms with which to appeal, (7) the officer violated his duties to enforce the zoning ordinance when he did not enforce the automatic stay as required by Harlan Zoning Regulations section 23.11, (8) the officer violated his duties in failing to cancel the permit when he became aware the Kalkases violated the permit, (9) the Board violated its own rules in failing to enforce the subpoenas it issued, (10) the Board violated ordinances when it refused to rule on "compliance issues," (11) the Board used an improper rule, and (12) the city failed to make a record to provide the district court or to provide a copy to Sojka.
The Board denies that Sojka's constitutional rights were violated.
Written intake procedures for applications for building permits.
Sojka contends the lack of formal procedures makes it difficult to discover what should be done and who should do it. He has cited no authority in support of this argument. See Iowa R. App. P. 6.14(1)( c). The Board responds that Sojka did not demonstrate how this procedure violated his substantive or procedural due process rights. While we agree with Sojka that the Board should establish procedure, we fail to find his constitutional rights were violated by their absence. Sojka has had an opportunity to have his complaints heard. We find no reason to reverse on this issue.
Planning commission review of platting.
Here Sojka complains that the officer violated the Harlan city ordinances by not having the Kalkases' property reviewed by the Planning and Zoning Commission because the lot was divided three times without being subdivided. He cites no authority to support a finding that such an omission is a violation of his due process rights. See Iowa R. App. P. 6.14(1)( c). We find no reason to reverse on this issue.
Violation of Harlan Comprehensive Plan.
Sojka contends the zoning officer violated the provisions of the Harlan Comprehensive Plan when he failed to have the Planning and Zoning Commission review the Kalkases' application for a building permit. He cites no authority to support his contention that this violation, if there is one, violates his due process rights. See Iowa R. App. P. 6.14(1)( c). We find no reason to reverse on this issue.
Issuing a building permit in violation of the ordinances.
Sojka contends the officer violated the zoning regulations when he issued a building permit when the plan submitted was not drawn to scale and the exact sizes of the buildings and the designated frontage of the buildings were not shown. He cites no authority to support his contention that this violation violates his due process rights. See Iowa R. App. P. 6.14(1)( c). We find no reason to reverse on this issue.
Failing to advise Sojka's wife of her rights to appeal.
Sojka contends the zoning officer violated section 4.2 of the bylaws of the Board in failing to advise his wife, who he contends was an interested party, of her right to appeal. The Board argues this is the first time Sojka has raised this issue and that Sojka cites no section of the Iowa Code, Harlan ordinances or zoning regulations that places an affirmative obligation on the zoning administrator to notify neighbors when a building permit is issued. The Board further alleges the claim the city must notify neighboring property owners when a building permit issues was argued to this court in the first appeal, Sojka v. Zoning Board, No. 00-2068 (Iowa Ct.App. Mar. 13, 2002), and found to be without merit, and therefore our earlier decision is res judicata.
Sojka relies on the Board's bylaws to support his claim.
Section 4 of these bylaws is designated as procedures for hearing cases and states the rules apply to all "appeals or applications before the Board." Section 4 follows section 3 which determines cases to be decided by the Board.
Section 4.1 provides:
Appeals to the Board may be taken by any person, group, or by an officer or department of the City affected by any decision of the Enforcing Officer and by applicants for a special exception or variance.
Section 4.2 provides:
The Enforcing Officer shall tell the applicant or interested party why the building . . . permit was denied or why the application is necessary. He/she shall inform the applicant or interested party of the right to apply or appeal to the Board and that it be made within the (10) days. Such appeal shall be filed with the Enforcing officer. . . .
The bylaws do not define "interested party."
While it would appear that Sokja's wife has an interest that does not necessarily require that she receive a notice from the city. See Shors, 581 N.W.2d at 118 (noting that an adjoining property owner would have the right to appeal to the board after she obtained constructive notice). We find no reason to reverse on this issue.
Failure to provide forms on which to appeal.
Sojka contends the Board secretary violated the Board bylaws in not providing forms as required by the bylaws of the Board. Section 1.4 of the bylaws defines the duties of the secretary and provides among other things that, "For all appeals and applications, the Secretary shall issue the proper forms." Furthermore, section 4.4 provides, "the Secretary shall reject any such application or appeal unless same are made on prescribed forms properly filled out." We agree with Sojka that under the Board's by-laws the secretary should have provided forms on which to appeal from the building permit. However Sojka has failed to show how his due process rights were violated by this failure. He was able to bring his challenge to the Board, the district court, and this court and has failed to show he was harmed by the failure to provide forms. Furthermore, he cites no authority to show the failure to supply forms was a due process violation. See Iowa R. App. P. 6.14(1)( c). We find no reason to reverse on this issue.
Board secretary improperly rejected Sojka's appeal.
Sojka contends the secretary improperly rejected his appeal. This issue was decided in Sojka's favor in the first appeal. Sojka exercised his right of appeal from such rejection and has failed to cite authority to support his contention his due process rights were violated. See Iowa R. App. P. 6.14(1)( c). We find no reason to reverse on this issue.
Zoning officer violated duties to enforce zoning ordinances.
Sojka contends the zoning officer violated sections 22.06 and 23.11 of the Harlan Code of Ordinances when he did not enforce an automatic stay after Sojka filed a notice of appeal and an application for rehearing. The Board contends, among other things, that though addressed by the district court, Sojka failed to argue it there. The Board also contends Sojka failed to demonstrate the record showed this failure or showed that the Kalkases violated the stay provisions.
Section 22 of the Harlan Code of Ordinances provides for appeals to the board of adjustment, and 22.06 provides in applicable part:
An appeal stays all proceedings in furtherance of the action appealed from, unless the administrative official from whom the appeal is taken certified to the board of adjustment after the notice of appeal is filed with him, that by reason of facts stated in the certificate, a stay would in his opinion, cause imminent peril to life and property. . . .
Section 23 of the Harlan Code of Ordinances provides for administration of the regulations, and 23.11 provides:
A zoning administrator designed by the city council shall administer and enforce this ordinance. He or she may be provided with the assistance of such other persons as the city council may direct.
We agree with Sojka as does the Board that there are stay provisions. These stay provisions were violated and should remain in place until the final disposition of this appeal.
Zoning officer violated duties by failing to cancel the Kalkases' permit.
Sojka contends the zoning officer violated his duties in not canceling the Kalkases' building permit when the Kalkases violated the provision of the building permit by: (1) moving a trailer house onto their property and living in it, (2) changing the location of the driveway as approved on the building permit, (3) increasing the elevation of their lot and altering the slope of water drainage without showing the terrain alteration on the building permit, (4) constructing a house in violation of the two-and-one-half story maximum height regulations of the Harlan Zoning Regulations, and (5) authorizing construction and repair work. Sojka contends the Board could not approve of what he alleges are illegal acts and did not protect his rights. He further contends the district court could not find there was substantial credible evidence to support the officer's acts or the Board's approval.
Sojka supports this argument by reference to testimony of Darcy Kalkas where she admitted that after the building permit was issued they moved a fifth-wheel trailer home onto the property to live there temporarily and had no permission from the zoning officer to do so. Her testimony also reflects that after Sojka complained about the trailer home it was moved. Sojka makes no further references to the appendix to support his other factual references. See Iowa R. App. P. 6.14(1)( f), (7). We find no reason to reverse on this issue.
Board failed to enforce subpoenas issued.
Sojka contends the Board would not recognize a subpoena duces tecum issued by the Board secretary, thereby depriving him of documents necessary for the presentation of his evidence and cross examination of witnesses. He contends that the unfairness of the procedure was particularly noticeable after his request for documents was not authorized and the person to whom the document request was made produced documents during his direct examination to support his testimony.
The contention the Board has authority to issue subpoenas including subpoenas duces tecum is not disputed. The Board acknowledges Sojka's right to subpoena witnesses and advances that counsel for the Board provided the subpoena forms for Sojka to use. The Board advances and we agree that Sojka fails to cite to where in the record it shows the Board failed to enforce a subpoena or subpoena duces tecum issued by the Board. See Iowa R. App. P. 6.14(1)( f), (7).
Board violated ordinances in refusing to rule on compliance issues.
Sojka contends the Board violated the provisions of Harlan Code of Ordinances section 22.08 Sojka fails to show where in the record the Board's refusal appears. See Iowa R. App. P. 6.14(1)( f), (7). We find no reason to reverse on this issue.
Section 22.08 Harlan Code of Ordinances provides as to decisions of the board of adjustment in applicable part:
(a) In exercising the above mentioned powers, the board of adjustment may, so long as such action is in conformity with the terms of this ordinance, reverse or affirm wholly or partly, or may modify the order, requirements, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made and to that end shall have powers of the administrative official from whom the appeal is taken. . . .
Board used an improper rule of substantial compliance to approve issues it should have annulled.
Sojka contends the city attorney apparently told the Board it could affirm the building permit if it were in substantial compliance. Sojka argues this is not a proper standard, as the zoning regulations must be followed or a variance given.
The Board argues that even if the term substantial compliance was used during deliberations, the issue was whether or not each decision of the Board was supported by substantial evidence and the district court specifically found they were. The Board notes that Sojka fails to point to the issues he contends were inappropriately decided on the basis of substantial compliance.
We have determined above that the deliberation transcript is not a part of the record. There is no basis to reverse on this issue.
City failed to make a record for district court with copy to Sojka.
Sojka contends the city violated the provisions of Iowa Code section 414.7 which require the Board of Adjustment to make a return to the court, in that no copies of the record or transcripts were furnished him, and this prevented him from exercising his right to present evidence and have a fair hearing. Sojka does not contend the records were not available to him, only that copies of them should have been made for him. There is nothing in either section 414.7 or 414.17 that requires the Board to furnish Sojka with a copy of the record and transcripts. We find no reason to reverse on these grounds.
It appears that Sojka means to cite to Iowa Code section 414.17 which provides in applicable part:
The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.
Deliberations transcript should be part of the record.
Sojka contends the district court erred in not accepting the deliberation transcripts into the record. This issue has been addressed above.
Officer failed to measure.
Sojka contends the zoning officer violated his duty as a neutral public official when he: (1) refused to measure the height and setbacks of the Kalkases' property as requested by Sojka, (2) refused to stop construction and enforce the automatic revocation of the building permit after the Kalkases violated the building permit, and (3) refused to enforce the ordinances when he became aware of zoning violations including the residential use of a third floor of the Kalkases' property. Sojka has failed to show where in the record this issue was preserved for appellate review. See Iowa R. App. P. 6.14(1)( f). We find no reason to reverse on these grounds.
Costs assessed to Sojka.
Sojka contends the district court erred in assessing all costs against him. He contends we should overturn this allocation because the illegal actions of the Board, the city officers, and the Kalkases make this allocation inequitable. He appears to argue the costs were taxed to him because the district court determined he had an improper motive.
There was an oral request by defendants in final arguments to have Sojka sanctioned, which request was denied. The district court did determine that "Sojka is willing to use any means at his disposal to accomplish his stated purpose, forcing the Kalkases to move their house." The district court having determined that was an improper motive and that Sojka was willing to use the legal process to attempt to accomplish his improper motive then taxed all costs to Sojka pursuant to Iowa Code section 625.1 which provides, "Costs shall be recovered by the successful against the losing party."
The district court assessed costs against Sojka in accordance with the above section of the Iowa Code because Sojka lost. Sojka has not been totally successful in this appeal. Yet, he did show evidence the city violated its own ordinances and failed to require proper documentation and platting before issuing the building permit. However, we have affirmed the district court in most respects. Consequently costs are assessed against Sojka.