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- by Erika Eckley
October 12, 2012
This appeal is the third installment of the ongoing saga of the horse named Velvet’s plight to find decent housing within the city of Johnston. The controversy has been ongoing since 2001 when Velvet’s owner tried to work with the city to rebuild her home that was destroyed. Velvet’s plight is a case study in why the doctrine of issue preclusion exists, but how it can be wrongly applied to create an illogical result. In the end, Velvet gets left out in the cold (and out of the city) in the court’s attempt to make sense of multiple decisions and scattered briefings on issues decided at different times because multiple cases dealing with the same issue were allowed to continue.
To understand the case, it is important to start at the beginning. Velvet’s owner owns a 9.7 acre parcel of land in Johnston. The owner purchased the property in 1990. It had previously been used for agricultural purposes. When the city was incorporated and urban development occurred, the owner continued to use his property for agricultural purposes as a preexisting, nonconforming use. The property had a single-family residence, five outbuildings, and fenced pasture for horses kept on the property. In 1998 a severe storm destroyed the outbuildings and a detached garage. The owner had used these buildings to store tack and supplies and for housing horses in inclement weather or for veterinarian visits.
The trouble started when the owner asked the city for permission to build a 16,000 square foot structure on a portion of the pasture to replace the buildings that had been destroyed. Equipment would be stored in the building, but it would also serve as an exercise and training area for horses, like Velvet. He asked the board of adjustment for a special exception to exceed the maximum area limitation for accessory structures and a variance on the height restriction. At a hearing on the application, the zoning administrator informed the board that the structure would conflict with the nonconforming-use ordinances. The board passed a resolution approving the application. As a condition of approval, the owner was required to submit a site plan for approval by the planning and zoning commission and the city council.
Unsatisfied with the board’s approval, the city attorney provided a written opinion to the city council that the intended use of the structure for horses was prohibited under several city ordinances and was an illegal expansion of a nonconforming use. After the city council received the attorney’s letter, the council asked the board of adjustment to reconsider its resolution based on the issues raised by the attorney. The board reconsidered its approval in January 2002, and after discussion regarding the issues raised by the city’s attorney, the board voted to confirm its prior resolution.
The city then filed a petition for writ of certiorari in district court in February 2002 to challenge the board’s decision (suit 1). In the meantime, the owner submitted the site plan to the city for approval. The city council declined to take action on the site plan and in March 2002 filed a second suit in district court seeking a declaratory judgment stating the city did not have to approve the site plan because the intended use would violate city ordinances and would be an expansion of a nonconforming use (suit 2).
The court postponed the writ of certiorari action (suit 1) until the declaratory judgment action (suit 2) could be decided. The court decided in the declaratory judgment action that the owner’s structure would violate several ordinances. The court expanded its ruling and held that because the structures on the owner’s land had been destroyed, the nonconforming use status had been destroyed. The owner appealed and claimed that the issues decided by the district court were the same issues raised and decided adversely to the city by the board of adjustment. Because the issues had been adjudicated in the city’s administrative process, the legal doctrine of issue preclusion prevented the city from raising the same issue again under the guise of authority for approving the site plan to try to get a different result. The Iowa Supreme Court agreed, and in a March 2006 opinion stated, “Unless and until the court in the certiorari action corrects the board’s action, the board’s decision that the use of the structure for horses is permitted under the zoning ordinance is binding on the City under issue preclusion.” The Iowa Supreme Court reversed the district court’s order, but also made clear that a primary issue in the certiorari action was whether the city actually filed its petition in a timely manner, which would determine whether the issue should be decided by the court at all. The court, however, noted that neither the owner nor the city asked the court to review the district court’s finding that the nonconforming use had been eliminated when the buildings were destroyed.
On remand from the Iowa Supreme Court, the district court entered an order that confirmed that the board of adjustment approved the agricultural use of the land in its decision to approve the structure and the city was barred from relitigating the use of the underlying land in the declaratory judgment case. The district court vacated the earlier district court ruling and dismissed the declaratory judgment case (suit 2). The court specifically stated that the city could argue about the legality of the board of adjustment’s decision in the writ of certiorari case (suit 1), which had been postponed while suit 2 was litigated. This decision was appealed, but unlike the previous litigation schedule, the certiorari case was not postponed while the appeal progressed. Instead, the parties went forward with suit 1, which could be impacted by the appellate decision on suit 2 and dealt with the same set of facts.
While suit 2 was awaiting another appellate review, the owner and the city asked the court to decide the certiorari case by summary judgment. The district court obliged and held that the board of adjustment’s approval of the exception for the owner was authorized under state law. The court also held that the city lacked authority to ask the board to reconsider its decision as it did, so the board’s reconsideration decision was a nullity. The court also held that the city could not challenge the board’s decision because it did not file a timely appeal within 30 days of the board’s original decision. The court also held that it did not have to rule on whether the destruction of the buildings destroyed the nonconforming use of the land because the writ of certiorari action was untimely. This should have been the end of the entire controversy and Velvet should have been able to live happily in her new barn, but sadly, it was not the end.
Back at the appellate ranch, the court (in reviewing the declaratory judgment suit) held that the district court, in its order on remand in the declaratory judgment case, erred in applying the doctrine of issue preclusion to the issue of whether the nonconforming status of the land was decided by the board of adjustment because the issue was not actually litigated at the board of adjustment. (The court appears to fail to recognize that the issue would have had to have been implicitly decided at the time the approval was granted or else the approval could not have been granted, so this ruling does not make sense.)
The court, in its hurry to decide the declaratory appeal, decided the case in May 2009 without reading the district court’s opinion from the writ of certiorari suit that had been decided in January 2008 in which the district court upheld the board’s approval. Instead, the court reversed the district court’s ruling in the declaratory judgment case and held that the district court was without authority to reconsider its previous reconsideration because that portion of the opinion had not been appealed to the Iowa Supreme Court. The appellate court held that the failure to challenge the issue on appeal made the question of whether the nonconforming use authorizing the use of the land for horses was final and not subject to attack.
On remand again in the declaratory judgment suit, the district court was faced with a motion for summary judgment from the owner regarding the application of the court’s opinion in the certiorari suit with the recent appellate decision in the declaratory judgment suit. (It should now start to make sense to you, the reader, as to why there should not be two separate suits ongoing regarding the same facts and circumstances.) The district court allowed consideration of whether the adjustment board’s decision was final and could not be collaterally attacked in the declaratory judgment suit (suit 2) and the city’s actual litigation of the land use issue in the writ of certiorari (suit 1) and dismissal with prejudice of the action was a final decision on the merits.
The city asked the court to reconsider its decision to proceed in hearing the two issues because the court erred in stating that the owner could not build the structure when the actual issue was whether he could not use the structure for the purpose of stabling his horses. The district court entered an order that finally made sense, the court stated, “[t[he factual and procedural history in [suit 1] and [suit 2] are so intertwined as to make it impossible to understand and consider the issues raised in one case without considering the other.” The court then struck its previous statement that the owner had lost the right to construct the building, but held that the issue of whether he could use the building for his horses remained.
Finally, in March 2011 the district court entered a ruling denying the owner’s summary judgment motion by concluding that the district court’s ruling on January 4, 2004, stating that the owner had lost the nonconforming use of the land for horses due to his outbuildings being destroyed was the final ruling on the issue because the statement was not appealed. So, the opinion basically held that the owner can build Velvet a barn, but Velvet is a nonconforming use in the city, so she may never live in it. The owner appealed.
On appeal, the owner argued that the city “impermissibly split its cause of action by making the same claim in two separate cases and then abandoning its claim in the only forum that had jurisdiction over it.” By failing to give final decision status to the board decision and final disposition to the certiorari case, the city was able to usurp the board’s role. In most cases (this one probably being the only exception), certiorari is the exclusive remedy by which cities are legally able to challenge board of adjustment decisions, but by litigating the land use issue in the declaratory judgment case and abandoning the issue in the certiorari case, the city was able to use two ongoing cases to choose the outcome it liked best and advance the issue in the favorable case and abandon it in the other case. But, the court disagreed that this was what occurred.
According to the court of appeals, the decision in the declaratory judgment appeal, the case comes down to whether the owner can prove that the issue of whether he lost the nonconforming use was actually litigated in the certiorari action. Of course, he cannot prove this because the city dismissed that claim in that suit and pursued it instead in the declaratory judgment action when it got the erroneous statement from the district court stating such. Not surprisingly, because the owner was unable to prove the issue as defined by the court of appeals, the appellate court held the fact that the entire certiorari action was dismissed for lack of jurisdiction because the city’s lack of timeliness in bringing the action was fatal to the claim that the issue was litigated. Because the court did not even have the authority to hear the certiorari case, there was no final decision on the issue. (Nevermind the fact that if there was never jurisdiction to hear the case that the issue should not have been decided by the courts regardless of the suit.) Luckily for the city, they had pursued the issue in the declaratory judgment case. Because the district court in its remand of the declaratory judgment case ruled on the issue finding that status as a nonconforming use was lost when the storm destroyed the buildings, Velvet remains homeless.
So, after being granted approval to build a facility to house his equipment and exercise his horses in 2001, more than 10 years later, the city must now finally allow the owner to construct his building, but the owner is forbidden from using the approved building for its stated and approved purpose. Here’s hoping that by now Velvet is up in the happy pasture in the sky looking down on the ridiculousness of a city spending 10 years fighting a landowner and resident over whether a horse can be kept in a barn particularly after the city’s own appointed board members from within the city decided it was permissible. City of Johnson v. Christenson, No. 2-552/11-1832, 2012 Iowa App. LEXIS 817 (Iowa Ct. App. Oct. 3, 2012).