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McCleary v. City of Des Moines Zoning Board of Adjustment

Court of Appeals of Iowa

April 19, 2017

JAYSEN MCCLEARY, Plaintiff-Appellant,
v.
CITY OF DES MOINES ZONING BOARD OF ADJUSTMENT, Defendant-Appellee.

         Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

         Jaysen McCleary appeals the district court's dismissal of his writ of certiorari. AFFIRMED.

          Jaysen McCleary, Des Moines, appellant pro se.

          Luke DeSmet, Assistant City Attorney, Des Moines, for appellee.

          Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.

          PER CURIAM.

         Jaysen McCleary appeals the district court's dismissal of his writ of certiorari claiming the writ was timely filed, some of his claims survived the dismissal, and the attorney for the City of Des Moines Zoning Board of Adjustment (the Board) should have been disqualified. Because we conclude McCleary's appeal from the decision of the Board was untimely, we affirm the district court's grant of the motion to dismiss. We also conclude the court did not abuse its discretion in refusing to disqualify the Board's attorney and affirm on that claim.

         I. Background Facts and Proceedings

         In September 2014, McCleary filed an appeal with the Board seeking various zoning variances and permits related to his desire to operate a pet boarding business out of his home. A public hearing was held on September 22, and the Board issued its decision denying McCleary's requests on October 23, 2014. On November 25, 2014, McCleary filed a petition for a writ of certiorari, seeking to overturn the Board's decision on various grounds, including federal constitutional claims. On January 2, 2015, the case was removed to federal court.

         On January 20, 2015, McCleary filed a "First Amended Petition for Certiorari and Application for Restraining Order and Request for Declaratory Relief and Damages under 42 U.S.C. § 1983." McCleary also filed a motion to disqualify the Board's counsel because he had represented McCleary prior to gaining employment with the Board. On March 11, the federal district court denied McCleary's motion after concluding the matter the Board's counsel had previously represented McCleary on was not substantially related to the current matter and did not give rise to any conflicts. Following the Board's motion to dismiss, the federal district court dismissed all of McCleary's federal claims, and the case was remanded to state court.

         On October 6, 2015, the Board filed a motion to dismiss in Polk County district court, arguing McCleary's November 25, 2014 petition for a writ of certiorari was untimely. On November 2, McCleary again filed a motion to disqualify the Board's counsel. The district court concluded McCleary had "not produced substantial evidence of any prior representation by [the Board's counsel] that bears any relationship to the instant matter" and denied McCleary's request. On December 18, the court determined McCleary's petition "was untimely in that it was filed with the court later than thirty days after the filing of the subject decision" and granted the Board's motion to dismiss. On December 23, McCleary filed a motion asserting his claims for declaratory relief survived the motion to dismiss and seeking a trial on those claims. On March 12, 2016, the court, treating McCleary's motion as a motion to amend and enlarge under Iowa Rule of Civil Procedure 1.904(2), denied the motion, concluding McCleary had failed "to bring this issue to the court's attention in connection with his resistance to the motion to dismiss and the hearing regarding that motion." McCleary appeals.

         II. Standard of Review

         We review rulings on a motion to dismiss for correction of errors at law and will affirm "if the petition fails to state a claim upon which relief may be granted." Hedlund v. State, 875 N.W.2d 720, 724 (Iowa 2016). Our review of a ruling on a motion seeking to disqualify an attorney is for abuse of discretion, and we give deference to the district court's factual findings if they are supported by substantial evidence. Bottoms v. Stapleton, 706 N.W.2d 411, 414-15 (Iowa 2005).

         III. ...


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