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Daniel R. Ollenburg and Kristen N. Ollenburg v. Board of Adjustment of the City of Clear Lake

March 13, 2013

DANIEL R. OLLENBURG AND KRISTEN N. OLLENBURG, PLAINTIFFS-APPELLANTS,
v.
BOARD OF ADJUSTMENT OF THE CITY OF CLEAR LAKE, IOWA, DEFENDANT-APPELLEE.



Appeal from the Iowa District Court for Cerro Gordo County, Christopher Foy, Judge.

The opinion of the court was delivered by: Eisenhauer, C.J.

Landowners filed a petition for writ of certiorari challenging the grant of a conditional use permit by the Board of Adjustment of the City of Clear Lake. AFFIRMED.

Heard by Eisenhauer, C.J., and Danilson and Bower, JJ.

Kristen and Daniel Ollenburg appeal the district court's denial of a writ of certiorari. They challenge the grant of a conditional use permit to LifeLine Resources, L.L.C. to operate a counseling center in a vacant elementary school. The Ollenburgs assert the district court erred in determining: (1) Clear Lake's zoning ordinance section 165.13(3)(M) is not unconstitutionally vague and overbroad;*fn1 (2) factors set out in Clear Lake's zoning ordinance section 165.52(5) were considerations rather than prerequisites; and (3) the Clear Lake Board of Adjustment's findings were supported by substantial evidence. We affirm.

I. Background Facts and Proceedings.

The City of Clear Lake published notice of a public hearing on October 26, 2010, to discuss LifeLine's proposed conditional use of the school. Additionally, notice was mailed to nearby property owners.

A LifeLine life-skills coach and a LifeLine co-owner spoke at the hearing. They stated the LifeLine activities would include small group counseling, individual counseling, and perhaps recreation. The activities would occur from approximately 4:00 p.m. to 7:00 p.m. for children ages ten to fourteen. Most attendees are voluntary participants, and they would be constantly supervised. Next, the Board gave community residents the opportunity to be heard. Nine residents addressed the Board, four spoke in favor and five spoke against the conditional use permit. In addition to speaking against the permit, Kristen Ollenburg presented a petition opposing the proposal signed by numerous citizens and an affidavit from an area realtor. At the conclusion of the meeting, the Board voted unanimously to approve LifeLine's application. The Board's written minutes of the meeting accurately summarize the speakers' statements. The Board's findings of fact and notice of decision states:

Findings of Fact

. . . 2. [T]he proposed land use . . . is not inconsistent with the types of conditional land uses identified within the RM-12 Zoning District [Low-Density, Multi-Family Residential Zone].

3. . . . [Section 165.13(3)(M)] specifically permits the Board to grant approval to "other uses when there is clear evidence that such uses will not seriously affect the value and character of the surrounding neighborhood." *fn2

4. [T]he utilization of the former Sunset School building and property by Lifeline Resources will not be detrimental to the value of the properties in the general area of the facility.

5. [T]he subject property abuts and is adjacent to properties of the same zoning district classification (RM-12).

6. [T]he evidence presented at the hearing does not adequately demonstrate that such use of the property would seriously affect the value and character of the surrounding neighborhood.

7. The use of the former Sunset School building and property by LifeLine Resources would be similar but less intrusive to the general character of the neighborhood in terms of traffic, noise, and parking than the building [and] property's ...


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