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Dewit v. Madison County Zoning Board

Court of Appeals of Iowa

September 13, 2017

NEIL DEWIT and MELISSA DEWIT, Plaintiffs-Appellants,
v.
MADISON COUNTY ZONING BOARD and MADISON COUNTY BOARD OF ADJUSTMENT, Defendants-Appellees.

         Appeal from the Iowa District Court for Madison County, Gregory A. Hulse, Judge.

         Plaintiffs appeal from an order dismissing without prejudice their petition for want of timely service of original notice. AFFIRMED.

          Lisa M. Noble of Noble Law Office, Des Moines, for appellants.

          Matthew D. Schultz, County Attorney, Madison County, for appellees.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          MCDONALD, Judge.

         The question presented is whether the district court erred in dismissing without prejudice plaintiffs Neil and Melissa DeWit's petition for writ of certiorari and declaratory action for failure to timely serve original notice on defendants Madison County Zoning Board and Madison County Board of Adjustment. Our review is for the correction of legal error. See Palmer v. Hofman, 745 N.W.2d 745, 747 (Iowa Ct. App. 2008). "When considering a motion to dismiss for delay of service, the district court's factual findings are binding if they are supported by substantial evidence." Id.

         This case involves a land use dispute between the Dewits and Madison County. In March 2015, the Madison County Office of Zoning and Environmental Health filed civil infractions against the Dewits for several violations of county zoning ordinances. The case number assigned to the civil infractions was CVCV034188. The civil-infractions case was resolved by way of consent order in September of 2015. The consent order required the Dewits to abate the violations within six months.

         After the consent order was issued, the Dewits filed an application for an agricultural exemption from the zoning ordinances. The Office of Zoning and Environmental Health denied the application. The Board of Adjustment affirmed the denial of the application.

         On April 20, 2016, the Dewits filed a petition for writ of certiorari and declaratory action challenging the Board of Adjustment's decision that denied the Dewits' application for an exemption. The Dewits filed their petition in the civil-infraction case, CVCV034188. The county attorney accepted service of the petition. Original notice was not included in the materials sent to or accepted by the county attorney.

         The defendants moved to dismiss the petition on the ground the petition should have been docketed as a new action and not as a filing in the civil-infraction case. On June 7, 2016, the district court denied the motion to dismiss. The district court ordered the clerk of court to transfer the petition and all related filings to the appropriate docket and to assign a new case number to the petition. The order specified the petition would relate back to and be deemed to have commenced on the date of filing, April 20. The district court's order also stated that original notice had not been issued or served on the board of adjustment and that the district court lacked personal jurisdiction until service of the original notice was obtained. The petition was transferred to the appropriate docket and assigned a new case number on June 14, 2016.

         The Board of Adjustment filed a motion to dismiss the petition on September 1, 2016, for failure to timely serve original notice. The next day, the DeWits served original notice on the board. This service occurred 135 days from the date of filing-April 20-but fewer than 80 days from the date the petition was transferred and assigned a new case number. The district court granted the second motion to dismiss, concluding service of original notice was not timely pursuant to Iowa Rule of Civil Procedure 1.302.

         Iowa Rule of Civil Procedure 1.302 governs the service of original notice. It provides in relevant part:

If service of the original notice is not made upon the defendant, respondent, or other party to be served within 90 days after filing the petition, the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice as to that defendant, respondent, or other party to be served or direct an alternate time or manner of service. If the party filing the papers shows good ...

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