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Graziano v. Board of Adjustment of the City of Des Moines

Court of Appeals of Iowa

November 8, 2017

CRAIG F. GRAZIANO, Plaintiff-Appellant,
v.
BOARD OF ADJUSTMENT OF THE CITY OF DES MOINES, Defendant-Appellee.

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

         A home owner challenges the issuance of a front yard setback exception to a neighboring property owner. AFFIRMED.

          Craig F. Graziano, Des Moines, appellant.

          Michelle R. Mackel-Wiederanders, Assistant City Attorney, Des Moines, for appellee.

          Heard by Vogel, P.J., and Tabor and Bower, JJ.

          TABOR, Judge.

         Houses 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.

         Graziano 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.

         At oral 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.

         We 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 future proceedings.

         We do 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 is moot.

         I. Facts and Prior Proceedings

         At 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.

         But a 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.[1] 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[2] 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 dwelling.

         Kent did not provide any proposed renderings of the home with her application but did provide the following sketch:[3]

         (Image Omitted)

         In an attachment to the application, Kent explained the location of the easement:

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.

         The 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 requirement:

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.

         The 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.

         As to 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.

         The 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.[4] 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.

         Cecilia's 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.

         Graziano spoke in opposition to Kent's front yard setback request. He read from a letter submitted to the board before the hearing, [5] 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."

         Next, 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 place.

         In a 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 ...


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