James W. Palensky and Teresa A. Scheib-Palensky, as Trustees of the Palensky 1998 Trust dated February 25, 1998 v. Story County Board of Adjustment

IN THE COURT OF APPEALS OF IOWA

No. 19-0349
Filed April 15, 2020

JAMES W. PALENSKY and TERESA A. SCHEIB-PALENSKY, as Trustees of
the PALENSKY 1998 TRUST dated February 25, 1998,
Petitioners-Appellees,

vs.

STORY COUNTY BOARD OF ADJUSTMENT,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Story County, Bethany J. Currie,

Judge.

A county board of adjustment appeals a district court decision reversing and

remanding its grant of a conditional use permit for want of written findings.

AFFIRMED.

Hugh J. Cain, Brent L. Hinders, and Eric M. Updegraff of Hopkins &

Huebner, P.C., Des Moines, for appellant.

Gregory G.T. Ervanian of Ervanian & Cacciatore, L.L.P., Des Moines, for

appellees.

Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
2

SCHUMACHER, Judge.

The Story County Board of Adjustment (Board) appeals from the district

court’s decision, which sustained a writ and annulled the Board’s proceedings

following the issuance of a conditional use permit (CUP). As Story County’s own

zoning ordinances require written findings and binding case law precedent requires

written findings or substantial compliance with the same, we affirm the district

court’s decision.

I. Facts and Prior Proceedings

Bradley Perkins sought a CUP from the Board to develop a seventy-four

acre plat in southwest Story County. Perkins named the project “Raspberry Hill

Resort” and hoped it would attract business as a wedding venue. His permit

request outlined plans to build an event venue for 300 persons and expand an

existing dwelling into a small bed and breakfast.

Following a February 7, 2018 meeting of the Story County Planning and

Zoning Commission, the matter was heard before the Board on February 21, 2018.

A Story County planner made a presentation regarding Perkins’s request, and

comments were received from several community members and other individuals,

including Perkins. James Palensky and Teresa Scheib-Palensky, as trustees of

the Palensky 1998 Trust (collectively, the Palenskys), own land neighboring the

plat at issue and opposed the issuance of the CUP. The Board members asked

questions and ultimately approved the CUP by a vote of three to one. The CUP

certificate was recorded with the Story County Recorder’s office on February 27,

2018.
3

The Palenskys timely petitioned for issuance of a writ of certiorari under

Iowa Code section 414.15 (2018), alleging that the issuance of the CUP was

arbitrary, unreasonable, and illegal. Hearing on the petition was held on

January 24, 2019. The district court first considered the Palenskys’ argument that

the Board failed to establish findings of facts, as required by Story County land

development regulations. The district court found the Board’s failure to make

written findings to be dispositive, relying on Story County land regulation

ordinances; Citizens Against Lewis & Clark (Mowery) Landfill v. Pottawattamie

County Bd. of Adjustment, 277 N.W.2d 921, 925 (Iowa 1979); and Bontrager Auto

Serv., Inc. v. Iowa City Bd. of Adjustment, 748 N.W.2d 483, 488 (Iowa 2008). The

court sustained the writ, annulled the Board’s proceedings, and remanded for

written findings of fact. The Board’s appeal followed. While the appeal was

pending, Perkins filed a motion to dismiss the appeal on the ground that the district

court’s order was not a final judgment, and therefore, the Palenskys did not

properly file for interlocutory relief.

II. Scope and Standard of Review

We review a district court’s order annulling board proceedings for correction

of legal error. Bontrager, 748 N.W.2d at 494–95; W & G McKinney Farms, L.P. v.

Dallas County Bd. of Adjustment, 674 N.W.2d 99, 103 (Iowa 2004). “The district

court’s factual findings are binding on appeal if they are supported by substantial

evidence.” W & G McKinney Farms, 674 N.W.2d at 103.

III. Analysis

We begin by considering and rejecting Perkins’s motion to dismiss. Perkins

argues the district court’s order annulling the board’s proceedings and remanding
4

for findings of fact required the Palenskys to file for interlocutory relief. We

disagree.

A final judgment or decision is one that finally adjudicates the rights
of the parties, and it must put it beyond the power of the court which
made it to place the parties in their original positions. It is a
determination which may be enforced by execution or in some similar
manner.

Crowe v. De Soto Consol. Sch. Dist., 66 N.W.2d 859, 860 (Iowa 1954). “A ruling

or order is interlocutory if it is not finally decisive of the case.” Helland v. Yellow

Freight Sys., Inc., 204 N.W.2d 601, 604 (Iowa 1973). A remand for further

proceedings is to be differentiated from a limited remand for further factfinding.

See Reiter v. Iowa Dep’t of Job Serv., 327 N.W.2d 763, 766–67 (Iowa Ct. App.

1982) (distinguishing between a limited remand and a remand for further

proceedings); compare Iowa Code § 17A.19(7) (limited remand), with Iowa Code

§ 17A.19(10) (remand for further proceedings). When a district court grants a writ

of certiorari holding a zoning board’s decision to be illegal and remanding for

further proceedings before the board, the district court fully relinquishes

jurisdiction. Sereda v. Zoning Bd. of Adjustment, 641 N.W.2d 206, 208 (Iowa Ct.

App. 2001) (citing Bugely v. State, 464 N.W.2d 878, 880 (Iowa 1991) (“[A]ll

jurisdiction is lost in a remand for further proceedings, and a dissatisfied party can

seek redress only by filing a new application, writ or appeal.”).

Here, the district court gave a final adjudication of the parties’ rights when it

annulled the proceedings that granted Perkins a CUP. The district court concluded

its order by saying, “It is therefore ordered the Petitioners’ Petition for Writ of

Certiorari is sustained, that the previous proceedings of the Board are annulled,

and this matter is remanded to the Board for creation of written findings of fact
5

regarding its decision to approve Perkins’ CUP application.” (Emphasis added).

Perkins would have us interpret the district court’s order as a limited remand

because the court did not rule on the “substantive legality” of the CUP, but a court

reviewing agency action “shall reverse, modify, or grant other appropriate relief

from agency action” when prejudice results from either procedural or substantive

error. See Iowa Code § 17A.19(10)(a)–(f). The annulment vacated the board’s

decision and determined the grant of the CUP to be illegal. Whether the dispositive

illegality derived from a procedural or substantive defect is of no significance to the

inquiry of finality.

While the district court did remand for “creation of written findings of fact

regarding its decision to approve Perkins’ CUP application,” this instruction on how

to proceed does not overcome the annulment of prior proceedings. As the board

noted, “Currently, there is no effective decision from the Board of Adjustment

concerning the Perkins CUP because the Iowa District Court annulled that

decision.”

Since the court annulled the Board’s decision and relinquished jurisdiction

over the case, its ruling was a final judgment. We therefore deny Perkins’s motion

to dismiss this appeal on the ground that the Palenskys were required to file for

interlocutory relief.

We next turn to the merits of the arguments on appeal. The Board argues

that the presentation by a county staff planner and comments from the public on

various issues sufficed to satisfy the requirement of written findings of fact. The

Palenskys argue the district court was correct in sustaining the writ and annulling

the Board’s proceedings given the Board’s failure to make written findings of fact.
6

In 1979, the Iowa Supreme Court promulgated the requirement that “boards

of adjustment shall make written findings of fact on all issues presented in any

adjudicatory proceeding.” Citizens, 277 N.W.2d at 925. The court later clarified

that substantial compliance with the written-findings requirement will suffice and

strict compliance is not required. Bontrager, 748 N.W.2d at 488. “[S]ubstantial

compliance means the statute or rule has been followed sufficiently so as to carry

out the intent for which it was adopted.” Id. (altered for readability) (citation

omitted). The intent of the written-findings requirement is “to enable a reviewing

court to determine with reasonable certainty the factual basis and legal principles

upon which the board acted.” Citizens, 277 N.W.2d at 925. However,

“proceedings before a board of supervisors and like tribunals are necessarily

informal and courts are not disposed to review them with technical strictness.”

Thorson v. Bd. of Supervisors, 90 N.W.2d 730, 735 (Iowa 1958).

In addition to the requirements of Bontrager and Citizens, the Board’s

decision in this case is subject to Chapter 90 of the Code of Ordinances of Story

County.1 Section 90.04(1) provides that “[t]he Board of Adjustment shall review

the proposed development for conformance to” six criteria: compatibility; transition;

traffic; parking and loading; signs and lighting; and environmental protection. Story

County, Iowa, Code of Ordinances § 90.04(1) (2020). Section 90.04 further

provides that

1
We observe that the parties’ references to particular sections of the Story County
Code of Ordinances are not in accord with the current numbering scheme of the
code, and the parties did not include the 2017 ordinances in the record on appeal.
Because none of the code provisions relevant and material to this appeal have
been modified since the parties submitted briefs, we use the current numbering
scheme.
7

[i]f the Board of Adjustment concludes that all development criteria
will be met by the development, it shall approve the application and
plans unless it concludes, based on the information submitted with
the official application materials and at the hearing that if completed
as proposed there is a strong probability the development will:
A. Not adequately safeguard the health, safety and general
welfare of persons residing or working in adjoining or surrounding
property; or
B. Impair an adequate supply (including quality) of light and
air to surrounding property; or
C. Unduly increase congestion in the roads, or the hazard
from fire, flood or similar dangers; or
D. Diminish or impair established property values on adjoining
or surrounding property; or
E. Not be in accord with the intent, purpose and spirit of the
Ordinance or the Cornerstone to Capstone (C2C) Comprehensive
Plan.

Id. § 90.04(2).

In reviewing the six affirmative criteria in section 90.04(1) and considering

the five dangers in 90.04(2), the code provides that the Board “shall establish a

finding of facts based upon information contained in the application, the staff

report, and the Commission recommendation and presented at the Commission or

Board of Adjustment hearings.” Id. § 90.03(3)(G)(1)(a). We read the Story County

Ordinance in concert with the dictate of Citizens and Bontrager that boards must

substantially comply with a requirement of written findings. “Although we give

deference to the board of adjustment’s interpretation of its city’s 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). Because Iowa cases create a requirement of substantial

compliance with a written-findings requirement, we need not reach the question of

whether the Story County ordinance alone requires written findings. We conclude
8

the Board was required under Bontrager and its own ordinances to substantially

comply with a requirement of written findings.

In Bontrager, a provider of homeless shelter housing sought to build a new

facility and thus sought a zoning exception for the proposed site, which was zoned

for commercial use. 748 N.W.2d at 485. The Iowa City Board of Adjustment

approved the exception and filed a “written decision granting the application”

several days later. Id. The written decision explained the board’s finding that the

new homeless shelter “will not be detrimental overall to the public health, safety,

comfort or general welfare”; however, it failed “to specifically find in its written

decision that the proposed exception would not substantially diminish or impair

property values in the neighborhood.” Id. at 486, 489. The district court reversed,

holding the shelter “had failed to present substantial evidence [that] the proposed

special exception would not substantially diminish or impair property values in the

neighborhood.” Id. at 486. The Iowa Supreme Court held that by making a factual

finding on one of the two contested issues, the board substantially complied with

the Citizens requirement to make written factual findings. Id. at 489–90. Relevant

to the present case, the Bontrager court noted multiple instances in which board

members expressed their views or commented on the applicable standards. Id. at

489. Moreover, the board’s written decision in Bontrager, although it omitted

mention of a critical governing standard, still “contained findings of fact,

conclusions of law, and a disposition.” Id. at 489.

In the instant case, the Board made no findings of fact or conclusions of law

in the CUP certificate, the minutes, or the meeting itself, as reflected in the
9

transcript. In the “Certificate of Conditional Use Permit,” the Board stipulated the

following conditions on the award of the CUP:

1. All parking stall areas shall be clearly marked in order to
meet the Story County Land Development Regulations [s]ection
88.08 that all parking spaces and circulation routes are well-defined
and clearly marked.
2. The applicant shall provide dust control on 240th Street
adjacent to existing and future dwellings if daily traffic counts to and
from the subject property exceed 150 vehicles per day. At any time,
the Planning and Development Department may request the
applicant to hire an engineer to study the traffic counts on 240th
Street to and from the subject property.
3. A site plan meeting all requirements of the Story County
Land Development Regulations shall be submitted for action by the
Story County Board of Supervisors prior to the issuance of any
Zoning Permits.

These conditions place limitations on the CUP that relate to the traffic,

parking, and environmental protection criteria in section 90.04(1). However, the

imposition of conditions on an issued permit cannot be read to constitute

“establish[ing] a finding of facts” as required by the ordinance, particularly where,

as here, the imposed conditions are taken verbatim from a recommendation by the

planning and zoning commission. Likewise, while the transcript and minutes from

the Board meeting reflect many of the board members’ questions, neither the

transcript nor the minutes contain findings of fact on the criteria set forth in section

90.04(1). Members of the Board made several statements to the effect that the

panel would “deliberate,” but any deliberation was off the record or devoid of

explicit findings. A “finding of fact” is “[a] determination by a judge, jury, or

administrative agency of a fact supported by the evidence in the record, usu[ally]

presented at the trial or hearing.” Finding of Fact, Black’s Law Dictionary (11th ed.

2019) (emphasis added). Since a question cannot constitute a determination, the
10

Board made no determinations by simply asking questions about the criteria set

out in section 90.04.

We recently encouraged zoning boards “to undertake a more thorough

examination of ordinance requirements in future proceedings.” Graziano v. Bd. of

Adjustment of Des Moines, No. 16-1753, 2017 WL 5185434, *1 (Iowa Ct. App.

Nov. 8, 2017). In this unpublished case, the board issued a written decision five

days after the meeting in which the board granted the requested exception, and in

the written decision the board “adopt[ed] nearly verbatim the rationale provided in

the written report of the city staff member.” Id. at *3 (emphasis added). While we

upheld the zoning exception in that case, we characterized the result as “a close

call.” Id. at *1. In contrast with Graziano’s “close call,” the Raspberry Hill Resort

CUP Certificate contained no written rationale and no other written decision was

issued aside from the certificate, which contained only bare conditions

unaccompanied by findings or reasoning.

The district court characterized three of our recent unpublished cases as

expanding on Bontrager’s departure from the strict rule of Citizens, saying we have

upheld board decisions “with no written findings whatsoever.” While the district

court disregarded these cases as nonbinding, we find it instructive to consider their

holdings.

First, in Condon Cabin, LLC v. Dickinson County Bd. of Adjustment, No. 15-

1345, 2016 WL 5484947, at *3 (Iowa Ct. App. Sept. 28, 2016), we found substantial

compliance when the board made three written findings in its grant of a variance.

Similar to the instant case, the plaintiff claimed the board of adjustment failed to

make written findings as required by zoning ordinances. Condon Cabin, 2016 WL
11

5484947, at *1. However, in Condon Cabin, we noted “[t]he Board made findings

on the issues required of them.” Id. at *3. Handwritten on a form titled “Findings

of the Board of Adjustment [:] Variance Application” were the following statements:

“Approved: 1Ai.-something unique or special about the property”; “Deny: B.[V]. The

variance will be harmful to the neighborhood or detrimental to the public welfare”;

“3a. Merely a convenience to the applicant”; and “Application is approved with the

change in the garage plan to 5′ side yards with Jim Blum’s proposed drainage plan

on the Mohling property only.” Id. at *4. Though there was conflict between the

statements indicating approval and those indicating denial, we found no illegality

since the two dissenting votes on the panel of five explained the conflict. Id. In

addition to written findings, we considered the relevant ordinance, the application,

and testimony from a number of people. Id. at *3. While we said “[w]ith this

information the Board could decide all three of the findings required of them,” which

could be read to imply that presentation of information to a board is sufficient to

constitute “findings,” the board did in fact make truncated written findings. Id. We

do not therefore read Condon Cabin as standing for the proposition that mere

presentation of information to a board alone suffices to satisfy the board’s

obligation to make findings. Because the board conducted a hearing on the issues

on which it subsequently made written findings, we found the Condon Cabin board

complied with the requirements of Bontrager and Citizens.

Second, in A-Line Iron & Metals Inc. v. Cedar Rapids Bd. of Adjustment,

No. 10-0232, 2010 WL 4484399, at *3 (Iowa Ct. App. Nov. 10, 2010), we upheld

the board’s denial of a conditional use permit even though the written order “fail[ed]

to include written findings of facts or conclusions of law.” Finding the record
12

nevertheless sufficient “to enable a reviewing court to determine with reasonable

certainty the factual basis and legal principles upon which the board acted,”

Citizens, 277 N.W.2d at 925, we held “the minutes of the meeting and the transcript

from the meeting clearly show the Board denied the petition because the intended

use of the property was not consistent with the use of nearby property, did not

match the character of the neighborhood, and was not compatible with surrounding

property.” A-Line, 2010 WL 4484399 at *3. Most importantly, the meeting minutes

in A-Line “nearly recite verbatim” a board member’s statement emphasizing how

the proposed use was out of character for the neighborhood:

I would go to what I would call the three Cs. As I go back into the
book here and look at the three Cs it was pointed out that I would just
call them consistency, or consistent character, and compatible and
as I look at this and as much as I would like to see a new business
and new employees, I would say in my opinion we don’t have
consistency with the land use. We are out of character for the
neighborhood and being out of character it lacks the compatibility
that I would like see to be able . . . .

Id. at *2. After discussing the facts of Bontrager, our decision in A-Line almost

wholly relied on the above statement in finding substantial compliance with the

requirement of written findings. See id. at *3. In contrast, a review of the hearing

transcript in the instant case reveals no statement rising to the same level of import.

Thus, while A-Line and the instant case similarly lack “written findings of facts or

conclusions of law,” the A-Line board made at least one on-the-record comment

synthesizing the merits of the application with the applicable standards.

Third, in Wiebbecke v. Benton County Bd. of Supervisors, No. 06-1672,

2008 WL 2746342, at *2 (Iowa Ct. App. July 16, 2008), we affirmed the district

court’s approval of a board decision denying a requested variance. The board in
13

that case issued no written findings. Wiebbecke, 2008 WL 2746342, at *2. While

in finding substantial compliance we considered public comments, questions from

the board, and the availability of minutes and a transcript—as the Board here

argues should suffice for substantial compliance—we found that the minutes of the

meeting stated a crucial reason for the denial of the requested variance. Id. at *1.

The land in question had a corn suitability rating of eighty-five, and Benton County

prohibited the granting of variances to land with ratings over seventy. Id. The

result in Wiebbecke is thus easily distinguishable from the instant case because

the Wiebbecke board’s minutes stated a clear rationale for the denial of the

variance. See id.

Relying on a statement in Bontrager that emphasized the Board’s

awareness of an applicable standard, the Board argues we have a sufficient basis

for review since the board’s approval of the CUP indicates by implication that the

board found compliance with the relevant Story County ordinances. The Board

argues “[t]he situation might be different if the Board of Adjustment denied the CUP

application and did not indicate which factor weighed against the decision.

However, in the situation where a Board of Adjustment approves an application,

then it obviously found that all of the factors were met.” We find this argument

unavailing, as such an approach would apply different procedural requirements on

the basis of whether a decision issued in the affirmative or the negative. The Board

also argues “[t]he Court should avoid requirements that a Board of Adjustment fill

out paperwork that essentially says ‘We find factor 1 is met’ and then have a

detailed finding of fact addressing each argument.” Our previous decisions make

clear that we have not reviewed board decisions with “technical strictness.”
14

Thorson, 90 N.W.2d at 735. But we cannot approve of a board decision completely

without findings. To do so would increase “judicial usurpation of administrative

functions” by forcing reviewing courts to review large records and make divinations

about the boards’ processes; assure less “careful administrative consideration” by

allowing sophisticated advisor presentations to substitute for determinations by

board members; and eviscerate a mechanism that safeguards jurisdictional

boundaries. See Citizens, 277 N.W.2d at 925 (discussing the practical reasons

for a requirement of administrative findings).

The Story County Code of Ordinances further supports the district court’s

decision. It requires that “[t]he Board of Adjustment shall establish a finding of

facts based upon information contained in the application, the staff report, and the

Commission recommendation and presented at the Commission or Board of

Adjustment hearings.” Story County, Iowa, Code of Ordinances

§ 90.03(3)(G)(1)(a). This language indicates that the finding of facts are to be not

substituted by but based upon the information in the application, staff and

Commission recommendations, and hearing testimony. Put another way, Story

County Code stipulates that a staff report is not a substitute for the Board’s

findings. See id. In the county planner’s presentation of the CUP application, she

addressed the standards for approval set out in section 90.04. This process

ensured that the Board would consider the affirmative criteria in subsection (1) and

the health and safety dangers in subsection (2), thereby complying with the

requirements of section 90.04. Yet this staff analysis of the review standards did

not dispense with the Board’s duty to “establish a finding of facts based upon

information contained in . . . the staff report.” Id. Nor did it dispense with the
15

Board’s duty to substantially comply with a requirement of written findings of fact

that would “enable [this] reviewing court to determine with reasonable certainty the

factual basis and legal principles upon which the board acted.” Citizens, 277

N.W.2d at 925. In short, it could not serve as a substitute for the Board’s findings.

One board member offered something approximating a finding that the

proposed use was highly desired in the Ames area but noted that the desirability

of a proposed use is not one of the relevant criteria or grounds of review:

I mean, there’s no doubt, Ames can use this type of venue. And
the—the fact that it’s on almost 80 acres to me is a very high plus.
The fact that it’s—the residence and the lodging is going to be into
the middle of the property is a plus. The fact that it’s in a natural
environment, there are people—I mean, there’s—the type of venue
they want to produce is a very needed thing in Story County . . . but
. . . that’s not our job to decide on those merits. We have to go into
the compatibility and all that kind of stuff . . . .

Aside from that comment, which was explicitly qualified as outside of the scope of

the Board’s review, the Board also engaged in a lengthy discussion of the fire

safety implications of the proposed development. Yet, the fire safety discussion

did not include findings. Beyond these, the record reflects no reasoning or

conclusions regarding the standards for approval set out in section 90.04.

We are ever mindful of the informal nature of such proceedings; however,

the Board’s complete lack of findings here does not allow a reviewing court to

“determine with reasonable certainty the factual basis and legal principles upon

which the board acted.” Citizens, 277 N.W.2d at 925. The Board made no written

or oral findings of fact; no board member affirmatively commented on the proposed

exception’s compliance or noncompliance with the relevant criteria; and no

rationale for approval was offered, written or otherwise. It is not an excessively
16

technical requirement to demand that boards of adjustment offer reasoning for their

decision, and we do not require a sophisticated synthesis of facts and law.

Because the Board’s decision lacked substantial compliance with the

written findings requirement of Bontrager and Citizens and lacked compliance with

Story County ordinances, we affirm the district court’s decision reversing and

remanding for findings of fact.

AFFIRMED.