CRAIG F. GRAZIANO, Plaintiff-Appellant,
BOARD OF ADJUSTMENT OF THE CITY OF DES MOINES, Defendant-Appellee.
from the Iowa District Court for Polk County, Robert B.
owner challenges the issuance of a front yard setback
exception to a neighboring property owner. AFFIRMED.
F. Graziano, Des Moines, appellant.
Michelle R. Mackel-Wiederanders, Assistant City Attorney, Des
Moines, for appellee.
by Vogel, P.J., and Tabor and Bower, JJ.
on 44th Street between Ingersoll and Grand Avenues in Des
Moines must be set back at least fifty feet from the street.
Property owner Cecelia Kent asked the Des Moines Zoning Board
of Adjustment to make an exception, allowing her to build a
house with a front yard setback of just thirty feet. The
board agreed, and the district court upheld the board's
decision. Neighbor Craig Graziano challenges that decision.
challenges the legality of the board's action, contending
(1) the board failed to make required written findings and
(2) substantial evidence does not support the grant of an
exception. See Des Moines, Iowa, Municipal Code
§ 134-64. First, he alleges Kent did not show practical
difficulties with building a house on the lot could not be
overcome by "any feasible alternative means" other
than an exception. Second, he contends the exception was not
"in harmony with the essential character of the
neighborhood." Third, he argues the board did not
address concerns the exception would "diminish or impair
property values in the surrounding areas." Graziano also
attacks the board's action on constitutional grounds,
asserting its procedures did not afford interested parties
reasonable notice of the proceedings or a meaningful
opportunity to be heard. Lastly, Graziano argues the district
court abused its discretion when it denied his request for a
stay of the board's decision without addressing the
merits of his case.
argument, counsel for the city acknowledged the board's
actions were far from a "textbook" example of
proper fact finding in the realm of zoning decisions. But the
city urges us to find the board substantially complied with
the ordinance and the exception was adequately supported by
evidence presented and discussed at the board meeting.
recognize boards of adjustment, and like tribunals, are by
their nature informal, and we do not review their decisions
with "technical strictness." See Thorson v. Bd.
of Supervisors, 90 N.W.2d 730, 735 (Iowa 1958). But our
deference is not limitless. While we find sufficient evidence
in this record to support the board's action, it is a
close call. We strongly encourage zoning boards to undertake
a more thorough examination of ordinance requirements in
not reach the merits of Graziano's other arguments.
Graziano waived error on his constitutional claim, and his
appeal of the district court's denial of his stay request
Facts and Prior Proceedings
issue is a previously undeveloped lot located near the corner
of Grand Avenue and a stretch of 44th Street colloquially
referred to as "Snake Drive." Grand Oaks
Condominiums owned the lot, as well as adjacent property
featuring two condominium buildings, which face Grand Avenue,
and a rear parking area. Cecilia Kent contracted to purchase
the property from Grand Oaks with the intent to build a
single-family home facing 44th Street.
thirty-foot easement for a public storm sewer running
diagonally across the back of the undeveloped lot complicated
Kent's plans. On November 14, 2015, Kent appealed to the
board for an exception to the district's fifty-foot front
yard setback requirement. She alleged the exception was necessary
to accommodate the construction of her new home-with an
anticipated footprint of sixty-five feet by forty feet-in a
location that would not encroach on the easement. In addition
to the front yard setback exception, Kent asked the board for
two other measures: (1) a variance of ten feet less than the
minimum ten-foot paving setback required for a parking lot
and (2) an exception of five feet less than the minimum
ten-foot side yard setback required for a single-family
did not provide any proposed renderings of the home with her
application but did provide the following
attachment to the application, Kent explained the location of
The property is bisected on the diagonal by a utility storm
drain that runs from the middle of the eastern property line
to the southwest corner of the proposed lot. . . . A public
utility easement of [fifteen feet] to either side of the
storm drain necessitates that the proposed structure . . .
will be limited in placement.
board heard Kent's application on December 16, 2015. The
hearing began with a city staff member's presentation of
a written report, which recommended granting Kent's
request for an exception to the front yard setback
Staff believes there are practical difficulties in providing
the necessary front yard setback given the shallow depth of
property available for single-family development. If the
front setback were met, it would likely require relief of the
rear yard setback. In this instance, there is also a good
portion of the rear yard that is encumbered by the public
storm sewer easement making it a challenge to shift the
proposed building footprint further east to increase the
front yard setback.
city's report also addressed the serpentine nature of the
street and the complexion of the neighborhood:
44th Street is a curvilinear street pattern between Grand
Avenue and Ingersoll Avenue. The homes fronting 44th Street
have varying front yard setbacks because the street is not
straight north to south. The subject property is also the
only parcel fronting 44th Street that does not extend as deep
to the east. Staff believes reducing the front yard setback
to [thirty] feet would remain in character with the
surrounding neighborhood, so long as the home would be built
with an architectural design that is compatible with
surrounding residential properties.
the variance Kent sought, the city staff member opined Kent
had not demonstrated the requisite level of hardship because
"[t]he dividing of the property is clearly creating a
situation of [her] own making . . . there is nothing
preventing meeting the required setback" from the
parking lot. Finally, because he believed meeting the side
yard setback requirement "would still provide an ample
building envelope to build a home with a footprint that would
be compatible with the character of home on the surrounding
properties, " the staff member also recommended denial
of Kent's request for a side yard setback exception.
staff member elaborated on these recommendations at the
hearing. He observed the neighborhood was characterized by
both "deep front yard setbacks" and "large
homes" and reasoned, because of the location of the
easement, a home built on the lot at issue could not satisfy
both characteristics. The staff member did not know the
average setback of the houses in the neighborhood, but he
estimated a range of 135 to 150 feet based on aerial
photography. He concluded granting an exception to the
front yard setback requirement would not have an "undue
impact" on the character of the neighborhood,
particularly considering the curvature of the street.
son, Mike Kent, who also lived on 44th Street, spoke on her
behalf at the hearing. He revised the anticipated footprint
of the proposed house to seventy-three feet by fifty-six feet
and explained that size would accommodate
sixty-seven-year-old Cecilia's plan to have a master
suite on the first floor. He maintained his mother had no
knowledge of the easement at the time of purchase and
estimated moving the sewer line would cost $20, 000 to $30,
000. He also emphasized the design of the home would "be
in conformity with the look and the feel of the neighborhood
as it currently sits, " which he hoped would protect the
neighborhood property values.
spoke in opposition to Kent's front yard setback request.
He read from a letter submitted to the board before the
hearing,  in which he described the neighborhood as
having a "stately character, " due to "the
large front yard setbacks on this segment of this
street." He believed granting a setback exception would
detract from the neighborhood aesthetic and "diminish
and impair established property values in the surrounding
area." Graziano concluded: "It just seems to me
they ought to be working harder to find a way to move [the
home] back, and if they can't do that, then I don't
think that's a proper justification for altering the
character of the neighborhood."
Bill Brown, who lived next to Cecilia Kent's property,
spoke in opposition to her requests. He, too, expressed
concern about property values. He believed that considering
the significant setback of his own home, an adjacent home
located just thirty feet from the street would look out of
brief response, Mike Kent disagreed with the objectors'
concerns and reiterated his commitment to upholding the
integrity of the neighborhood. He asserted the front yard
setback exception would not be out of character with the
neighborhood because two other houses "up on the corner
[of 44th Street and Ingersoll] . . . also have ...