Nicholas S. Bussanmas, L.L.C. v. City Council of the City of Des Moines

IN THE COURT OF APPEALS OF IOWA

No. 17-1498
Filed July 18, 2018

NICHOLAS S. BUSSANMAS, L.L.C.,
Plaintiff-Appellant,

vs.

CITY COUNCIL OF THE CITY OF DES MOINES,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.

Nicholas S. Bussanmas, L.L.C. appeals from the denial of its petition for writ

of certiorari challenging the Des Moines City Council’s denial of its preliminary

subdivision plat “Winterfell.” AFFIRMED.

Joseph M. Borg and Benjamin D. Bruner of Dickinson, Mackaman, Tyler &

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

Michelle Mackel-Wiederanders, Assistant City Attorney, for appellee.

Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

The City Council of the City of Des Moines1 denied Nicholas S. Bussanmas,

L.L.C.’s (Bussanmas) request for review and approval of its preliminary plat to

subdivide Bussanmas’s property into three lots for development of single-family

dwellings. Bussanmas appealed by filing a petition for writ of certiorari in district

court challenging the Council’s refusal to approve its application.2 Following a trial

de novo as an equitable proceeding under Iowa Code section 354.10(3) (2017),

the district court denied Bussanmas’s petition, finding sufficient evidence

supported the Council’s decision to reject Bussanmas’s preliminary plat.

Bussanmas appeals the district court’s denial, asserting the Council’s decision was

unreasonable, and thus the district court’s denial unreasonable. Upon our review,

we affirm.

I. Background Facts and Proceedings.

In 2015, Bussanmas purchased 2.34 acres of land located at 3816 John

Lynde Road in Des Moines. The property, located in a one-family-residential-

district zone, contained a single-family dwelling and undeveloped timbered land

along a ravine. Prior to purchasing the property, Bussanmas contacted the City to

see whether this was a property that could be subdivided, and a City employee in

city development indicated that the property could be subdivided into four lots if

the Council granted a variance to subdivide the property. After purchasing the

1
For ease of reference, we hereinafter refer to the City of Des Moines itself as “City” and
to the City’s Council as “Council.”
2
The appeal was captioned “Petition for Writ of Certiorari” and filed pursuant to Iowa Code
§ 354.10(3) (2017) (appeal to district court by applicant aggrieved by a governing body’s
subdivision plat decision), and Iowa Rule of Civil Procedure 1.1401 (certiorari petition).
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property, a four-lot subdivision plat was prepared. Bussanmas applied for

preliminary approval of the plat, including requesting the necessary variance

concerning the lots’ proposed frontages. Neighbors of the property received notice

of Bussanmas’s application. Neighbors were generally opposed to Bussanmas’s

plans, and numerous persons sent responses to the City citing their objections.

The Zoning Board of Adjustment denied the four-lot plan in October 2015. After

receiving feedback from the City, Bussanmas went back to the drawing board and

a three-lot subdivision plat was prepared that would not require a variance to

accommodate frontage requirements.

In April 2016, Bussanmas presented three-lot preliminary plat “Winterfell” to

the City’s Plan and Zoning commission. Neighbors continued to object to

Bussanmas’s development plans. The commission voted to deny the staff’s

recommendation for approval of the preliminary plat.

Bussanmas appealed the denial of the preliminary plat to the Council.

Neighbors attended the Council’s June 13, 2016 meeting and voiced their

opposition to the plan. The Council voted to deny Bussanmas’s preliminary

subdivision plat, making the following findings of fact and objections:

a. In accordance with Iowa Code Section 354.8, the City
Council is charged with considering the burden on public
improvements and balancing interests between the appellant, future
purchasers, and the public interest in reviewing proposed subdivision
plats, and that Council finds that the preliminary plat “Winterfell”
would create a burden on the City’s storm water management
system and the surrounding neighborhood that outweighs the
interest of the developer and future purchasers of the subject
property.
b. The preliminary plat “Winterfell” does not meet the
requirements of Des Moines Municipal Code Section 106-3(b) which
states that “land to be subdivided shall be of such character that it
can be used safely for building purposes without danger to health or
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peril from fire and flood and shall not be subdivided until adequate
utilities, drainage, streets and similar improvements exist or are
satisfactorily provided.”
c. The preliminary plat “Winterfell” is not consistent with the
following purposes stated in the City’s subdivision ordinance
(Municipal Code Chapter 106): (i) to “protect and provide for the
public health, safety, and general welfare of the city”; (ii) to “secure
safety from . . . flooding”; (iii) to “ensure the adequacy of drainage
facilities; safeguard the water table; and encourage the wise use and
management of natural resources throughout the city in order to
preserve the integrity, stability, and beauty of the community and the
value of land”; and (iv) to “provide for due consideration to be given
to the preservation of canopied areas and mature trees and to
provide for the mitigation of canopied areas and mature trees which
are removed for development.”
d. Following public hearing, the City Plan and Zoning
Commission voted 11-1 to recommend denial of the Preliminary Plat
“Winterfell” on the basis of storm water management concerns in the
general neighborhood and specifically upon the subject property at
3816 John Lynde Road and adjoining properties, and neighborhood
opposition to the project.
e. The proposed subdivision and development of the subject
property should not be allowed due to existing storm water concerns
in the area, including the volume of water that currently accumulates
and flows through the ravine upon the subject property. The subject
property currently acts as a natural water shed, and development
thereon may negatively impact this existing storm water
management.
f. The proposed subdivision and development of the subject
property further should not be allowed due to the planned removal of
large mature trees on the property, which provide natural storm water
management. Replacement trees are not anticipated to be able to
fully compensate for removal of existing trees, and further erosion of
the ravine may occur in the event of mature tree removal on the
subject property.

Bussanmas subsequently appealed to the district court challenging the

Council’s refusal to approve its application. After reviewing the evidence

presented at a trial de novo, the district court concluded it could not find that the

Council acted unreasonably or that the Council’s decision was contrary to a rule of

law.

Bussanmas now appeals.
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II. Standard of Review.

Both parties submit that our review of the district court’s ruling is de novo.

We agree. Review by the district court of a city council’s denial of approval of a

subdivision plat is by trial de novo as an equitable proceeding. Iowa Code

§ 354.10(3). The district court reviews the facts anew, but if the facts found by the

court leave the reasonableness of the board’s decision “open to a fair difference

of opinion,” the court may not substitute its judgment for that of the board. Oakes

Constr. Co. v. City of Iowa City, 304 N.W.2d 797, 799 (Iowa 1981) (quoting Weldon

v. Zoning Board, 250 N.W.2d 396, 401 (Iowa 1977)). “The reasonableness of the

council’s decision is not open to ‘a fair difference of opinion,’ of course, if the

decision is contrary to a rule of law, notwithstanding that it may be within the facts.”

Id. On appeal, our review is the same as that of the district court. Id.

III. Discussion.

Iowa Code chapter 354, which governs platting, division, and subdivision of

land, was enacted “to provide for a balance between the review and regulation

authority of governmental agencies concerning the division and subdivision of land

and the rights of landowners.” Iowa Code § 354.1. To that end, the governing

body, applying “reasonable standards and conditions in accordance with

applicable statutes and ordinances for the review and approval of subdivisions,”

shall determine whether the subdivision conforms to its
comprehensive plan and shall give consideration to the possible
burden on public improvements and to a balance of interests
between the proprietor, future purchasers, and the public interest in
the subdivision when reviewing the proposed subdivision and when
requiring the installation of public improvements in conjunction with
approval of a subdivision.

Id. § 354.8(1)-(2). Pursuant to Iowa Code section 354.8(2):
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If the subdivision plat and all matters related to final approval
of the subdivision plat conform to the standards and conditions
established by the governing body, and conform to [chapters 354
and] 355, the governing body, by resolution, shall approve the plat
and certify the resolution which shall be recorded with the plat.

Ultimately, the goals of chapter 354 require a balancing of numerous interests,

many of which are subjective.

We apply a liberal approach to subdivision decisions. Our supreme court

has stated:

On balance, we incline toward a reasonably liberal reading of
subdivision legislation, subject to the watchful eyes of the courts
under their de novo review. At the same time, we hold that councils
must not approve or disapprove on whim, see Knutson v. State ex
rel. Seberger, 239 Ind. 656, 662-63, 157 N.E.2d 469, 473 (1959), but
rather on the facts of each case and on the manifest objects and
purposes of the legislation. 62 C.J.S. Municipal Corporations s 83c,
at 200-01 (1949) (“In exercising its powers a planning board or
commission should act reasonably, and should be guided by factors
affecting the welfare of the community, and by the provisions of the
statute or charter under which it operates.”).

Oakes Constr. Co., 304 N.W.2d at 806.

Here, Bussanmas asserts, “‘There is no room for difference of opinion

among reasonable minds,’ the decision to deny the Winterfell plat was contrary to

the evidence, arbitrary, and without any regard to reasonable standards or the right

of Bussanmas to safely develop the Subject Property.” (Citations omitted.) The

district court disagreed, explaining:

Keeping in mind that the court cannot substitute its judgment for that
of the Council, the court still must view the facts anew. However, if
the facts found by the court leave the reasonableness of the
[Council’s] decision “open to a fair difference of opinion,” the court
again may not substitute its judgment for that of the Council.
Although the experts in this case all indicated that there would
not be a detriment to other properties by the “Winterfell” plat and, in
fact, all testified that there would be improvement regarding flooding,
erosion and preservation of trees, there was evidence brought by
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neighbors to the adjacent property which was reasonably contrary to
[Bussanmas’s] evidence. In addition, such considerations as
adopted by the Council in its resolution of June 13, 2016, regarding
such matters as “the wise use and management of natural
resources,” “due consideration to be given to the preservation of
canopied areas and mature trees and to provide for the mitigation of
canopied trees and mature trees which are removed for
development,” the removal of large mature trees and replacement
trees that would not be able to fully compensate for the removal of
such trees were all well within the prerogative of the Council and also
well within the goals of the City of Des Moines’s comprehensive plan
adopted in April of 2016 . . . .
There is no evidence to suggest that the Council did not
perform its function as required by law. It appears that the Council
took into consideration all of the evidence provided by both
[Bussanmas] and by neighbors and other public comments,
considered the pros and cons and balanced the interest of the
[Bussanmas], including the proposed development, against the
interest of the City, its citizens and the comprehensive plan adopted
by the [City]. Therefore, the court finds that there is sufficient
evidence in the record to support the Council’s decision to reject the
preliminary plat “Winterfell.”

Upon our review of the record, we agree with the district court.

Here, there is room for a difference of opinion among reasonable minds.

Stated another way, a reasonable mind could accept the record evidence as

adequate to reach the same findings as the Council. The Council clearly

considered all of the relevant evidence and balanced that evidence as required by

section 354.8(1), including the interests of Bussanmas, the neighbors, and the

City, and it determined Bussanmas’s preliminary plat must be rejected. We agree

with the district court that there is sufficient evidence to support the Council’s

decision to reject the preliminary plat.
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IV. Conclusion.

Because we agree with the district court that there is sufficient evidence to

support the Council’s decision to reject Bussanmas’s preliminary plat, we affirm

the district court’s order.

AFFIRMED.