Palensky v. Story County Board of Adjustment

IN THE COURT OF APPEALS OF IOWA

No. 22-0242
Filed May 10, 2023

JAMES W. PALENSKY and TERESA A. SCHEIB-PALENSKY, Individually and
as Trustees of THE PALENSKY 1998 TRUST DATED FEBRUARY 25, 1998,
Petitioners-Appellants,

vs.

STORY COUNTY BOARD OF ADJUSTMENT,
Respondent-Appellee,

and

BRADLEY PERKINS,
Indispensable Party.
________________________________________________________________

Appeal from the Iowa District Court for Story County, James C. Ellefson,

Judge.

Petitioners appeal the district court’s grant of summary judgment to

respondent on a petition for declaratory judgment and the annulment of a writ of

certiorari. AFFIRMED.

Gregory G.T. Ervanian and Joseph A. Cacciatore of Ervanian & Cacciatore,

L.L.P., Des Moines, for appellants.

Hugh J. Cain (until withdrawal), Brent L. Hinders, and Eric M. Updegraff of

Hopkins & Huebner, P.C., Des Moines, for appellee.

Heard by Tabor, P.J., and Schumacher and Buller, JJ.
2

SCHUMACHER, Judge.

James Palensky and Teresa Scheib-Palensky (Palenskys) appeal the

district court’s grant of summary judgment on a petition for declaratory judgment

to the Story County Board of Adjustment (Board) and the annulment of a writ of

certiorari. We find (1) the district court properly denied the Palenskys’ request for

declaratory relief; (2) the previous proceedings before the Board were not a nullity;

(3) the Board made adequate factual findings; (4) the Palenskys’ claims

concerning the modification of a conditional use permit (CUP) were untimely;

(5) the Board’s findings were supported by substantial evidence; (6) the Palenskys

were not denied due process; and (7) the Palenskys were not denied their right to

petition the Board for redress of their grievances. We affirm the decisions of the

district court and the Board.

I. Background Facts & Proceedings

The background facts in this case are set out in Palensky v. Story County

Board of Adjustment, No. 19-0349, 2020 WL 1879711, at *1 (Iowa Ct. App. Apr. 15,

2020). Bradley Perkins requested a CUP for an area in rural Story County where

he intended to build a bed and breakfast inn and event venue.1 Palensky, 2020

WL 1879711, at *1. The Board approved CUP09-17 and the Palenskys filed a

petition for writ of certiorari, which was sustained by the district court. Id. On

appeal, we affirmed the district court, finding the Board did not substantially comply

1 This appeal involves only the bed and breakfast and event venue. There is a
separate appeal that involves Perkins’s plans to develop a commercial
campground, CUP08-17, and that case has a slightly different procedural history.
See Palensky v. Story Cnty. Bd. of Adjustment, No. 22-0249, 2023 WL _______
(Iowa Ct. App. ___ __, 2023).
3

with a requirement to make written findings of fact. Id. at *7. The matter was

remanded to the Board. Id.

Following remand, the Board reconsidered CUP09-17. The Board did not

hold a new public hearing but made written findings based on the previous hearing.

The Board approved CUP09-17, which had some modifications due to CUP03-

19.1.2

The Palenskys filed a petition for declaratory judgment and a petition for writ

of certiorari. They claimed the Board’s proceeding on remand was a nullity, illegal,

or in excess of its jurisdiction because the court of appeals decision annulled the

earlier proceedings. They asserted that Perkins should be required to file a new

application and the Board should conduct a new public hearing. In the alternative,

they claimed the issuance of the CUP was arbitrary, capricious, unreasonable, and

not supported by substantial evidence.

The Board and the Palenskys each filed motions for summary judgment on

the issue of whether the Palenskys could seek declaratory relief. Each party

resisted the other party’s motion. The district court granted the Board’s motion for

summary judgment, finding “declaratory judgment may not be utilized for the

purpose of retrying matters previously adjudicated or as a substitute for an appeal.”

The court found all of the issues raised by the Palenskys could be decided in the

certiorari action and the petition for declaratory judgment should be dismissed. On

the Palenskys’ motion, the court determined the case was “remanded for findings

2 CUP09-17 was originally for an eight-bedroom bed and breakfast inn. The
approval of CUP03-19.1 in October 2019 modified the plans to a four-bedroom
bed and breakfast inn with an addition for indoor events.
4

of fact, which is entirely inconsistent with any need to start over.” The court denied

the Palenskys’ motion for summary judgment. The court noted the case would

proceed on the Palenskys’ petition for writ of certiorari. The Palenskys filed a

motion pursuant to Iowa Rule of Civil Procedure 1.904(2), which was denied by

the court.

The case proceeded to a trial to the court on August 24, 2021. The court

reiterated its previous ruling that our decision did not nullify all of the proceedings

of the Board but required the Board to make written factual findings to support the

CUP. The court ruled (1) the Board made adequate findings of fact; (2) the current

Board had authority to make factual findings; (3) the Board properly considered

the previous proceedings; (4) the Board properly considered whether to approve

the CUP; (5) the Board’s actions were not arbitrary, capricious, or unreasonable;

(6) the Board could modify the provisions of CUP09-17, based on CUP03-19.1;

(7) the Board complied with its rules for granting CUPs; (8) the Board’s proceeding

did not violate due process; (9) the Board did not violate the Palenskys’ right to

petition the government for redress of grievances; (10) the Board’s decision was

supported by substantial evidence; and (11) the CUP did not violate ordinances or

the Ames Urban Fringe Plan. The court concluded the writ should be annulled and

the actions of the Board affirmed.

The Palenskys filed a motion pursuant to rule 1.904(2). The court denied

the motion for reconsideration. The Palenskys now appeal.

II. Declaratory Judgment

The Palenskys’ petition for declaratory judgment sought a determination of

the parties’ rights and obligations under a previous decision of this court. They
5

claim the district court erred by granting the Board’s motion for summary judgment

and denying their motion on the grounds that a declaratory judgment was not

available to them. A declaratory judgment ruling entered on summary judgment is

reviewed for the correction of errors at law. Walton v. Gaffey, 895 N.W.2d 422,

426 (Iowa 2017).

In general, “a person claiming a decision by the board of adjustment is

illegal may seek relief from that decision by filing a writ of certiorari.” City of

Johnston v. Christenson, 718 N.W.2d 290, 296 (Iowa 2006). An action for a

declaratory judgment is not available as a substitute for an appeal. Id. There is,

however, an exception to the general rule:

We will permit a declaratory judgment as a claim for relief from an
action of an administrative board as a companion or alternative claim
to a statutory certiorari action if: (1) the statutory remedy of certiorari
will not afford complete relief, and (2) the legislature did not intend
certiorari to be the exclusive remedy. Thus, if the declaratory-
judgment action tests the constitutionality of a zoning ordinance, or
some other issue outside the action of a board of adjustment, both
the petition for writ of certiorari and declaratory judgment petition may
be pursued as remedies from a decision of the board of adjustment.
Otherwise, a declaratory judgment may not be used as a remedy
from a decision by the board of adjustment.

Id. (citations and footnote omitted).

The Palenskys assert that they come within this exception, citing C. Line,

Inc. v. Malin, where we found a declaratory judgment petition was not barred

because “the certiorari claim sought to remedy an alleged wrong, while the

declaratory judgment claim sought interpretation of the parties’ rights and

obligations under a [separate federal] court decree.” No. 10-1600, 2011 WL

6058580, at *5 (Iowa Ct. App. Dec. 7, 2011).
6

We determine the exception is not applicable in this case. “Where the

validity of the ordinances is at issue, declaratory relief is allowed; where only the

grant or denial of a particular application is at issue, declaratory relief is

disallowed.” Oehl v. Amana Colonies Land Use Dist. Bd. of Trs., No. 13-0328,

2014 WL 1234216, at *4 (Iowa Ct. App. Mar. 26, 2014). The Palenskys are not

challenging the validity or constitutionality of ordinances, or requesting an

interpretation of a ruling in separate court proceedings. We conclude the district

court did not err by finding declaratory judgment was not an available form of relief.

III. Annulment

In the petition for writ of certiorari, the Palenskys claimed the Board’s

proceeding on remand was a nullity based on language in our earlier appellate

decision. The Palenskys contend that all of the proceedings leading to CUP09-17

were annulled, thereby requiring the Board to engage in new proceedings. Our

review of a district court ruling on a writ of certiorari is for the correction of legal

error. Earley v. Bd. of Adjustment, 955 N.W.2d 812, 816 (Iowa 2021).

In the previous appellate proceedings, Perkins filed a motion to dismiss,

claiming “the district court’s order annulling the board’s proceedings and

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

Palensky, 2020 WL 1879711, at *2. We rejected this argument, stating, “Since the

court annulled the Board’s decision and relinquished jurisdiction over the case, its

ruling was a final judgment.” Id. In the reasoning leading to this conclusion, we

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

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

how to proceed does not overcome the annulment of prior proceedings.” Id. Our
7

discussion in this portion of the decision addressed only the question of whether

the district court’s ruling was a final judgment. See id.

Outside of this discussion of whether the Palenskys were seeking

interlocutory relief, there was no discussion of whether the Board’s proceedings

were a nullity. In the conclusion of the case we found the Board did not

substantially comply with a requirement for written findings. Id. at *7. We reversed

and remanded for findings of fact. Id. There was no ruling that the CUP

proceedings needed to be reinitiated. See id. In our discussion of Perkins’s motion

to dismiss we were not making a larger statement concerning the nullity of the

Board’s proceedings that would be in contrast to our other statements in the same

decision that the case was remanded to the Board for written findings of fact. See

id.

On remand, the district court stated,

None of those [prior] decisions require anything from the Board
beyond findings of fact. This court understands that the CUPs were
annulled or vacated, but concludes that there was no intention by
any previous court to hold that the work done by the Board and the
staff and the statements of persons who appeared before the Board
somehow disappeared.

We conclude the district court did not err by finding that while CUP09-17 was

annulled, the Board’s previous proceedings were not annulled.

IV. Analysis of the CUP

A. The Palenskys assert the Board failed to make adequate factual

findings to support the CUP following remand. We previously stated:

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.” The court later clarified
that substantial compliance with the written-findings requirement will
8

suffice and strict compliance is not required. “[S]ubstantial
compliance means the statute or rule has been followed sufficiently
so as to carry out the intent for which it was adopted.” 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.” However, “proceedings
before a board of supervisors and like tribunals are necessarily
informal and courts are not disposed to review them with technical
strictness.”

Palensky, 2020 WL 1879711, at *3 (citations omitted). In addition, Story County

Ordinance section 90.03(3)(G)(1)(a) “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.

The Palenskys point out that in our analysis of CUP09-17, we noted that a

“staff analysis of the review standards . . . could not serve as a substitute for the

Board’s findings.”3 Id. at *7. The Palenskys assert the Board did no more following

remand than it did previously, other than adopting a staff report, and they claim

this was not sufficient.

The district court found:

The Palenskys contend that previous courts determined the
staff report was not adequate as findings of fact. That is not
accurate. In fact, the inadequacy the previous courts found was that
the Board did not adopt the staff report, or anything else, as its
findings in its 2018 decision. The Court of Appeals was clear in
distinguishing between the presentation of information to the Board
and adoption of that information as findings. . . . The courts, both

3This action is a continuation of the proceedings in Palensky, 2020 WL 1879711,
and we are bound by our rulings in that case under the law of the case doctrine.
See New Midwest Rentals, LLC v. Iowa Dep’t of Commerce, 910 N.W.2d 643, 649
n.4 (Iowa Ct. App. 2018) (“The law of the case doctrine ‘represents the practice of
courts to refuse to reconsider what has once been decided.’” (citation omitted)).
An appellate decision is controlling in later appeals in the same case. Id.
9

district and appellate, did not say that the staff report would have
been inadequate if it had been adopted by the Board.

The staff report, which was adopted by the Board after the case was

remanded, substantially complies with “the written-findings requirement . . . ‘to

enable a reviewing court to determine with reasonable certainty the factual basis

and legal principles upon which the board acted.’” See id. at *3 (citation omitted).

We also determine the Board’s factual findings meet the requirements of Story

County Ordinance section 90.03(3)(G)(1)(a). The Board did not fail to comply with

its own rules or the law relating to findings of fact.4 We note, and counsel for the

board agreed, that the approach taken by the board following remand from this

court was somewhat of a minimalistic approach. But as highlighted previously, our

supreme court has indicated we are not to review these proceedings with technical

strictness. We conclude the CUP is not invalid due to inadequate written factual

findings.

B. The Palenskys contend the Board acted illegally by modifying

CUP09-17, based on its approval of CUP03-19.1. The Palenskys’ appellate brief

states, however, “The Palenskys have no objection to the bed and breakfast with

1,200 square feet of attached event space.” Hence, they challenge the process

that led to the approval of CUP03-19.1, not the actual modifications to CUP09-17.

The Board’s written findings of fact dated August 19, 2020, included a

special note:

4 The Palenskys claim the Board failed to consider new facts. In a supplement to
the trial briefs, the Palenskys sought to introduce evidence that Perkins was
operating a “care farm” for animals on his property. The district court found the
evidence “had no relevance to the issues properly before the court in these cases.”
We agree that the evidence is not relevant to the issues raised in this appeal.
10

CUP09-17 included a request for bed and breakfast for eight
bedrooms that included a proposed addition to the dwelling to add
four bedrooms and the separate event venue building. CUP03-19.1
approved with conditions by the Board of Adjustment on October 16,
2019, changed CUP09-17. CUP03-19.1 was submitted by Bradley
Perkins for a Bed and Breakfast Inn, with scheduled events
(receptions, private parties & meetings) by appointments that
involves construction of an addition on the south side of the dwelling
to enclose an existing outdoor patio area primarily to create space
throughout the year for bed and breakfast scheduled events guests,
add dining room space, and make the entry accessible to access the
existing master bedroom.
The Board of Adjustment’s action of the Written Findings of
Fact for CUP09-17 acknowledges the above identified changes due
to the Board of Adjustment’s approval of CUP03-19.1.

The district court did not address the merits of the Palenskys’ claims

regarding the modification of CUP09-17 by CUP03-19.1, finding, “The approval of

CUP03-19.1 was an accomplished fact by the time of the September 16, 2020

meeting. This is an untimely attack on CUP03-19.1.” CUP03-19.1 was approved

by the Board on October 16, 2019. We find no error in the court’s conclusion that

the Palenskys’ attacks on CUP03-19.1 were untimely. See Arkae Dev., Inc. v.

Zoning Bd. of Adjustment, 312 N.W.2d 574, 577 (Iowa 1981).

C. The Palenskys also claim the Board did not consider the combined

effects of CUP09-17 as modified and another CUP obtained by Perkins,

CUP08-17, for a commercial campground. They assert this failure violated Story

County Ordinances chapter 90 but do not clarify which provisions of the ordinances

they claim were violated.

Both CUP09-17 and CUP08-17 were considered by the Board on

September 16, 2020. In the factual findings for CUP09-17, the Board addressed

the modifications occasioned by approval of CUP03-19.1. The Board was not

required to hold a new hearing to consider the combined effects of the CUPs. The
11

Board followed our remand instructions in Palensky, 2020 WL 1879711, at *7, and

made written factual findings to support CUP09-17.

D. The Palenskys claim CUP09-17 is not supported by substantial

evidence. They state there were no factual findings that the CUP (1) was in accord

with the Ames Urban Fringe Plan; (2) was compatible with the character of the

immediate vicinity; (3) would adequately safeguard the health, safety, and general

welfare of persons residing in surrounding property; and (4) would not unduly

increase congestion in the roads. See Story County, Iowa, Code of Ordinances

§ 90.04(1), (2).

We consider whether the Board’s decision was supported by substantial

evidence. See Bontrager Auto Serv., Inc. v. Iowa City Bd. of Adjustment, 748

N.W.2d 483, 495 (Iowa 2008); TSB Holdings, L.L.C. v. Bd. of Adjustment, 913

N.W.2d 1, 10 (Iowa 2018) (“Fact-findings or issues that were before the board for

decision are ‘reviewed under the substantial evidence standard.’” (citation

omitted)). The court does not substitute its judgment for that of the Board. See

Bontrager, 748 N.W.2d at 495. “Evidence is substantial ‘when a reasonable mind

could accept it as adequate to reach the same findings.’” Id. (citation omitted).

“The possibility that two persons might reach differing conclusions upon review of

the evidence does not prevent a finding from being supported by substantial

evidence.” Galinsky Fam. Real Est., LLC v. City of Des Moines Zoning Bd. of

Adjustment, No. 10-0356, 2011 WL 227589, at *3 (Iowa Ct. App. Jan. 20, 2011).

1. The district court found the Board was not required to follow the

Ames Urban Fringe Plan, noting the implementing agreement of the Plan “does

not create any explicit limitations on [CUP] applications.” Story County Ordinance
12

section 90.01 provides, “The objective of the [CUP] process is to encourage

compatibility with the proposed development with the environment, and with

existing and future land uses in the area.” (Emphasis added). As the district court

noted, this statement is aspirational and does not limit the Board’s discretion in

granting CUPs. We find no error in the district court’s conclusion that because the

Ames Urban Fringe Plan was not binding on the Board, there is no requirement

that there be substantial evidence to show the CUP was compatible with the Ames

Urban Fringe Plan.

2. One of the factors the Board should consider when reviewing a

proposed CUP is compatibility. Palensky, 2020 WL 1879711, at *3. The ordinance

requires “[t]he proposed buildings or use shall be constructed, arranged and

operated so as to be compatible with the character of the zoning district and

immediate vicinity, and not to interfere with the development and use of adjacent

property in accordance with the applicable district regulations.” Story County

Ordinance § 90.04(1)(A).

Perkins’s property is in an A-1 agricultural zoning district. Perkins stated he

intended to use the property subject to CUP09-17 for events, such as weddings.

The district court found, “The evidence demonstrates that the event venue would

be between 1000 and 1500 feet from any residence and the topography would

shield those residences from noise and light.” The court concluded, “A reasonable

person, and thus the Board, could conclude that placing a bed and breakfast and

event center on a 70-plus acre parcel in an A-1 Agricultural zone was consistent

with ‘the character of the zoning district and immediate vicinity.’” We determine

there is substantial evidence in the record to support a finding that CUP09-17 is
13

“compatible with the character of the zoning district and immediate vicinity.” See

id.

3. In reviewing a proposed CUP, the Board should not approve the CUP

if there is a “strong probability” it will “[n]ot adequately safeguard the health, safety

and general welfare of persons residing or working in adjoining or surrounding

property.” Story County Ordinance § 90.04(2)(A). The district court noted the

Palenskys focused on fire safety issues, which are actually governed by section

90.04(2)(C), providing a CUP should not be approved if there was a “strong

probability” it would “[u]nduly increase . . . the hazard from fire, flood or similar

dangers.”

The district court found:

The Board of Adjustment received testimony from Bradley
Perkins, the applicant and a mechanical engineer that the building
would comply with International Building Codes concerning ingress
and egress standards for fire protection. Perkins also testified that
he could design the building with materials that were designed to
prevent the spread of fire. He explained that he would design the
building with these materials specifically to address the lack of a fire
sprinkler system. Additionally, Perkins explained that he would
require events at the event venue to be catered in as opposed to
cooked on-site. The event venue would have no on-site kitchen and
no on-site grease traps or other hazards associated with cooking. All
of this was included in the findings of fact. The Board of Adjustment
considered that any fire that one district could not handle would result
in cooperation from other districts. The record contains sufficient
evidence for a reasonable person to conclude there is not a “strong
probability” that the CUP would “[u]nduly increase . . . [the] hazard
from fire.”

We find no error in the district court’s conclusion that there was substantial

evidence supporting a finding there was not “a strong probability” that CUP09-17

would “unduly increase . . . the hazard from fire.”
14

4. The Palenskys claim there is not substantial evidence in the record

to show CUP09-17 would not unduly increase traffic congestion. Section

90.04(1)(C) provides “[t]he development shall provide for adequate ingress and

egress, with particular attention to vehicular and pedestrian safety and

convenience, traffic flow and control, and emergency access.” Additionally, a

proposed CUP should be denied if there is a “strong probability” it would “[u]nduly

increase congestion in the roads.” Story County Ordinance § 90.04(2)(C).

Perkins proposed to provide fifty-eight parking places for the event venue.

He anticipated having one large event per week, with as many as fifty-eight cars

traveling to and then from the venue. In addition, he planned to have one smaller

event per week, with less than fifty people traveling to and from the event venue.

The district court noted, “the fact that a project increases traffic does not mean that

there is a failure to provide adequate ingress or egress.” While approval of

CUP09-17 means there likely will be more traffic in the area, the evidence does

not show a “strong probability” it would “[u]nduly increase congestion in the roads.”

See id. We conclude there is sufficient evidence in the record to show the CUP

would not unduly increase traffic congestion.

V. Due Process

The Palenskys claim the Board’s proceedings following remand violated

due process. They note the members of the Board changed from when a hearing

was held on the CUP on February 21, 2018, to when the Board approved the CUP

following remand on September 16, 2020. The Palenskys assert that they were

denied due process because a decision was not made by the entity that heard the

evidence. We review constitutional issues, such as due process claims, de novo.
15

PSFS 3 Corp. v. Michael P. Seidman, D.D.S., P.C., 962 N.W.2d 810, 832 (Iowa

2021).

The Palenskys cite to In re Marriage of Seyler, which stated, “Generally in

cases tried to the court, due process entitles a litigant to a decision on the facts by

a judge who has heard the evidence.” 559 N.W.2d 7, 9 (Iowa 1997). “[A]

successor judge may render a judgment consistent with due process so long as

he or she orders a full or partial retrial, or in appropriate cases, becomes familiar

with the entire existing record.” Id.

The Board “is a continuous body, and its power is a continuing power.” See

Schumacher v. City of Clear Lake, 239 N.W. 71, 73 (Iowa 1931). Similarly,

There can be no serious contention that every time there is an annual
charter election in the city of Bayonne, wherein one–half of the
council go out of office and their successors are elected, that all prior
proceedings end, and must be again commenced. The city council
is a continuous body, and, as to street improvements, the new city
council can take up the proceedings where they were left by the old
council, and proceed to carry out the provisions of the charter in
reference thereto.

State v. Mayor of City of Bayonne, 28 A. 381, 382 (N.J. 1893).

We find the change in membership of the Board does not create a due

process violation. Furthermore, the record shows that following remand, the Board

was familiar with the matters presented at the February 18, 2018 hearing. See

Seyler, 559 N.W.2d at 9 (finding a matter might be decided by a successor judge

who has become familiar with the record). The findings of fact referred to evidence

presented at the hearing. We conclude the Palenskys have not shown they were

denied due process.
16

VI. Petition for Redress of Grievances

Finally, the Palenskys assert their constitutional right to petition for the

redress of grievances was violated. See U.S. Const. amend. I (providing a right

“to petition the Government for a redress of grievances”); Iowa Const. art. I, § 20

(“The people have the right freely to assemble together to counsel for the common

good; to make known their opinions to their representatives and to petition for a

redress of grievances.”). The Palenskys claim that following the remand, the

Board would not permit them to make written submissions or provide a public

hearing prior to voting to approve CUP09-17. Our review of constitutional claims

is de novo. Mitchell Cnty. v. Zimmerman, 810 N.W.2d 1, 6 (Iowa 2012).

The district court denied the Palenskys’ claims, finding:

The Board did not deny the Palenskys their right to petition for
redress of grievances when it created written findings of fact as
directed by the district court. They had already been heard by the
Board on February 21, 2018. On remand, the Board was simply
following the instructions of the district court issued in compliance
with [Iowa Rule of Civil Procedure] 1.1411, as affirmed by the Court
of Appeals, to create written findings of fact. This certiorari case and
this decision are further demonstration that the Palenskys have been
afforded the right to petition for redress.

On our de novo review, we agree with the district court’s conclusions. The

Palenskys presented their arguments at the Board’s hearing in February 2018.

They have not been denied their right to petition the Board for redress of their

grievances.

We affirm the decisions of the district court and the Board.

AFFIRMED.