Opinion
No. 1-671 / 00-2068.
Filed March 13, 2002.
Appeal from the Iowa District Court for Shelby County, TIMOTHY O'GRADY, Judge.
Defendant and intervenor appeal from a district court ruling sustaining the plaintiff's petition for writ of certiorari in his action to establish he filed a timely notice of appeal from the issuance of a building permit. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Joseph C. Lauterbach of Salvo, Deren, Schenck Lauterbach, P.C., Harlan, for appellant board.
Marcus Gross, Jr. of Kohorst, Early, Gross Louis, Harlan, for appellants Kalkas.
Ken Sojka, Harlan, pro se.
Heard by MAHAN, P.J., and MILLER and HECHT, JJ.
The Zoning Board of Adjustment for the City of Harlan (Board), and intervenors, Darcy and Kelly Kalkas (Kalkas), appeal from a district court ruling sustaining Ken Sojka's petition for writ of certiorari in his action to establish he filed a timely notice of appeal from the issuance of a building permit. We affirm in part and reverse and remand in part.
I. Factual Background and Proceedings.
Sojka and Kalkas are neighboring residential property owners in Harlan, Iowa. On August 16, 2000, Sojka contacted the Zoning Enforcement Officer regarding potential construction on the Kalkas property. The Officer supplied Sojka with a proposed building site sketch. On August 21, 2000, the Officer approved a different proposed building plan and issued a building permit for the Kalkas property. According to the building plan, Kalkas was to build a foundation, move a house onto it, and add a patio, front porch, and garage.
Excavation at the Kalkas property began on August 28, 2000. On September 4, 2000, Sojka observed foundation blocks had been positioned at an elevation which led him to suspect the completed construction might conflict with zoning ordinances. On September 8, 2000, Sojka delivered an "Objection to Zoning" to the city of Harlan. On September 11, 2000, Sojka served a notice of appeal of the issuance of the permit on the Harlan city clerk and Board. The Secretary of the Board rejected the appeal as untimely based on the Board's by-laws, which require an appeal within ten days of the decision to issue the building permit. On September 13, 2000, Sojka requested reconsideration of the rejection of his appeal. Upon rehearing, the Board concluded the appeal was not filed within the time allowed by its rules.
On October 10, 2000, Sojka filed a petition for writ of certiorari alleging various illegal acts by the Board, Secretary, and Officer. Kalkas filed a motion to intervene. The Secretary and Officer filed a consolidated motion to dismiss them as party defendants. The district court sustained the motion to dismiss and the motion to intervene. Following a hearing on November 6, 2000, the district court sustained the writ, finding Sojka's appeal timely, and remanded the matter to the Board for a hearing on the merits. The Board and Kalkas appeal and Sojka cross-appeals.
II. Contentions on Appeal.
The Board contends the district court erred in (1) finding Sojka filed a timely appeal of the Officer's decision to issue a building permit, (2) concluding that Sojka's observations supported a finding of fact that Kalkas's property was being used contrary to city zoning laws, and (3) assessing court costs against the Board. The Board further argues (4) the Officer was not required to notify Sojka he had issued a building permit to Kalkas. Kalkas concurs with the Board in issues (1), (2) and (4). On cross-appeal, Sojka argues (1) the district court erred in dismissing the Officer and Secretary from his suit, and (2) the ten-day time for appeal is unreasonably short.
III. Standard of Review.
Our scope of review on appeal of the district court's decision is at law. Chrischilles v. Arnolds Park Zoning Bd. of Adjustment, 505 N.W.2d 491, 493 (Iowa 1993). Thus, we are bound by the district court's findings if they are supported by substantial evidence in the record. Id.
IV. Timeliness of Sojka's Appeal.
The Board and Kalkas contend the district court erred in concluding Sojka filed a timely appeal of the Officer's decision to issue a building permit. Section 4.4 of the Board's bylaws requires the Secretary to "reject any application on appeal which is not filed within ten days of the enforcing officer's decision." The Board and Kalkas argue Sojka was chargeable with knowledge of the issuance of the building permit on August 28, 2000, when excavation began on the Kalkas property. Accordingly, the Board and Kalkas contend Sojka's time for appeal expired on September 7, 2000, ten days from the start of excavation. We disagree.
In Arkae Dev., Inc. v. Zoning Bd. of Adjustment, 312 N.W.2d 574, 577 (Iowa 1981), the Iowa Supreme Court addressed the issue of timeliness of appeal to a zoning board of adjustment. In Arkae, the court ruled:
the time for appeal should run from the earliest of the date (a) the appealing party had actual knowledge of the decision appealed from, (b) the appealing party was chargeable with knowledge of that decision, or (c) notice of that decision is given in a reasonable, specified manner. Second, knowledge or notice of a "decision" refers not only to the administrative decision itself (e.g., issuance of a building permit) but also to the facts constituting the basis for objecting to that decision (e.g., the fact that the permit holder intends to use the property in a manner not clearly specified in the permit).Id. Applying the court's holding in Arkae, the district court made an implicit finding of fact that Sojka was charged with knowledge of the Board's decision when he knew or should have known Kalkas intended to use the property in a manner not clearly specified in the permit. The district court concluded Sojka's ten day period in which to appeal began on September 4, 2000, when he observed Kalkas constructing a foundation and suspected a violation of zoning ordinance requirements. The district court further determined Sojka's appeal was timely filed on September 11, 2000, seven days from when the time for appeal began to run. We find there is substantial evidence in the record to support the district court's determination. Accordingly, we affirm on this issue.
V. Costs.
The Board contends the district court erred in assessing court costs. Iowa Code section 414.18 states in relevant part: "[c]osts shall not be allowed against the board, unless it shall appear to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from." Iowa Code § 414.18. The Board argues (1) the district court failed to make a finding the Board acted with gross negligence, bad faith, or malice, and (2) its acts or omissions cannot, as a matter of law, support a finding of gross negligence, bad faith or malice.
We agree the district court failed to make a finding the Board acted with gross negligence, bad faith, or malice. Moreover, we conclude the record does not contain substantial evidence to support such a finding. See Trailer City, Inc., v. Bd. of Adjustment, 218 N.W.2d 645, 647 (Iowa 1974) (affirming reversal of Board's decision, but finding assessment of costs not justified). Cf.Wells v. Dallas County Bd. of Adjustment, 475 N.W.2d 680, 681-83 (Iowa Ct.App. 1991) (finding cost assessment supported by substantial evidence due to Board's violation of Iowa's open meeting law); U.S. Cellular Corp. v. Bd. of Adjustment, 589 N.W.2d 712, 719 (Iowa 1999) (affirming conclusion Board acted in bad faith and/or with malice in applying a zoning ordinance which was still being drafted as a basis for its denial of company's application for a special use permit). Accordingly, we reverse on this issue.
VI. Dismissal of Zoning Officer and Secretary.
Sojka contends the district court erred when it sustained the Board's motion to dismiss the Secretary and Officer. We disagree. The Board correctly argues any remedy available to Sojka against the Officer and Secretary would be identical to relief available against the Board. We conclude Sojka suffered no prejudice from the district court's ruling dismissing the Officer and Secretary as party defendants. See Baysinger v. Haney, 261 Iowa 577, 583, 155 N.W.2d 496, 499 (Iowa 1968) ("A judgment should not be reversed and litigation prolonged unless error appears which we may reasonably suppose affected the result to the prejudice of the losing party."). Accordingly, we find no reversible error resulted from the dismissal and affirm the district court's ruling on this issue.
VII. Conclusion.
The district court did not err in finding Sojka's appeal was timely and in dismissing the Officer and Secretary as party defendants. However, we conclude the district court erred in assessing costs against the Board. Although we have not addressed all of the issues raised and arguments made, we have carefully considered them. Those we have not addressed lack merit, were not preserved, or are moot. We affirm in part and reverse and remand to the district court for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.