PAUL J. BURROUGHS, KENNETH BURROUGHS, TERRI SPINNER, DAVID SPINNER, SEAN HARVEY, and TY HARVEY, Appellants,
THE CITY OF DAVENPORT ZONING BOARD OF ADJUSTMENT, THE CITY OF DAVENPORT, IOWA, an Iowa Municipal corporation, and MZ. ANNIE-RU DAYCARE CENTER, an Iowa Limited Liability Company, Appellees.
from the Iowa District Court for Scott County, Mark J. Smith,
appeal the district court's dismissal of their petition
for writ of certiorari seeking review of city zoning
decisions upholding a conditional use permit for a daycare
Michael J. Meloy, Bettendorf, for appellants.
R. Marshall of Lane & Waterman LLP, Davenport, for
appellees Zoning Board of Adjustment and City of Davenport.
Vesey, Davenport, for appellee MZ Annie-Ru Daycare Center.
case requires us to interpret Iowa Code section 414.15, which
requires a petition for writ of certiorari seeking review of
a decision of a city zoning board of adjustment to be filed
in district court "within thirty days after the filing
of the decision in the office of the board." Iowa Code
§ 414.15 (2015). We conclude that the thirty-day period
is triggered when the board posts the decision on its public
website. However, what is posted must be an actual
decision. Proposed minutes that have not yet been
approved do not constitute a decision. Our conclusion is
supported by out-of-state appellate decisions where the same
statutory terms were applied. For these reasons, we affirm
the judgment of the district court in part, reverse it in
part, and remand for further proceedings.
Facts and Proceedings.
operate a daycare facility in Davenport, one must obtain a
special use permit from the Davenport Zoning Board of
Adjustment. In March 2014, the Board of Adjustment granted
Tiny Tots Learning Center (Tiny Tots) a permit to operate at
1112 Bridge Avenue. Tiny Tots had leased the premises from
the landowner. Tiny Tots, however, closed its doors in
December 2014. The property stood vacant from December 2014
to July 2016.
2016, Mz. Annie-Ru Daycare Center (Annie-Ru), a new lessee of
the premises, opened a daycare at the same location. Annie-Ru
supervises more children and is open for longer hours than
Tiny Tots.The Davenport Zoning Administrator
nonetheless determined the special use permit issued to Tiny
Tots "run[s] with the land." Therefore, Annie-Ru
was allowed to operate without having to apply for and obtain
a new special use permit.
following month, a nearby resident named Kenneth Burroughs
and several other residents wrote the zoning administrator,
challenging Annie-Ru's right to operate. In response, the
zoning administrator reiterated his view that the special use
permit ran with the land, that it was still valid, and that
Annie-Ru's operations complied with that special use
permit. He also advised the complaining residents they could
appeal his decision to the Board of Adjustment. Burroughs and
the others did so on September 7.
residents' appeal came on for a public hearing before the
Board of Adjustment on October 13. Burroughs and others who
appeared argued that Tiny Tots' special use permit was
not transferable to Annie-Ru. City staff disagreed. At the
conclusion of the hearing, the Board of Adjustment voted 4-0
to uphold the City staff's recommendation. After the
vote, the chairperson of the Board of Adjustment advised the
complaining residents they could file a petition to revoke
Annie-Ru's special use permit.
minutes of the Board of Adjustment's October 13 meeting
describe the appeal and then state as follows:
Flynn presented the staff report. Staff position is that a
Special Use Permit runs with the land and not with the
Staff stated that notices were sent to 8 property owners
within 200 feet of the subject property. Staff received 0
letters in opposition to the request.
Recommendation and Findings of Fact
City Staff stands by its interpretation that Mz. Annie-Ru
Daycare Center LLC is legally entitled to operate under the
provisions of the Special Use Permit issued to Tiny Tots
Daycare and requests the Zoning Board of Adjustment uphold
The petitioner [(Burroughs)] addressed the Board and
reiterated the request, claiming that Special Use Permits do
not run with the land.
Numerous persons spoke in favor of the appeal (please see the
video for name and addresses).
Two persons spoke against the appeal and in favor of
staff's interpretation of the code.
One was the representative of the owner of 1112 Bridge Avenue
and the other was City staff attorney Chris Jackson.
Attorney Chris Jackson quoted three separate zoning
authorities on the topic which all confirmed that Special Use
Permits do run with the land (and not the applicant).
Reistroffer moved to uphold staff[']s recommendation.
Woodard seconded the motion and it carried (4-0) on a roll
Strayhall, yes; Reistroffer, yes; Woodard, yes; and Hart,
minutes were posted on the City's website and available
for public inspection in advance of the next meeting on
October 27. However, when posted they had not been actually
approved. Approval did not occur until the October 27
November 14, Burroughs and other nearby residents filed a
petition to revoke Annie-Ru's special use
permit. The petition came on for a public hearing
at the Board of Adjustment's December 8 meeting.
Following discussion of various issues, the Board of
Adjustment unanimously voted against revoking the special use
minutes of the Board of Adjustment's December 8 meeting
summarize the petition to revoke and then contain the
Staff stated that notices were sent to adjacent owners within
200 feet of the subject property. Staff received 3 emails in
support of the request.
Recommendation and Findings of Fact
1. The location, design, construction and operation of the
day care center adequately safeguard the health, safety,
and general welfare of persons residing or working in
adjoining or surrounding property.
2. The day care center does not impair an adequate supply of
light and air to surrounding property.
3. The day care center does not unduly increase congestion in
the streets, or public danger of fire and safety.
4. The day care center does not diminish or impair
established property values in adjoining or surrounding
5. The day care center is in accord with the intent, purpose
and spirit of the Zoning Ordinance and Davenport 2025:
Comprehensive Plan for the City.
The Special Use Permit [(SUP)] is in compliance with the
'Criteria for Granting a Special Use Permit' and the
conditions placed on the Permit at the time of granting.
Based on this compliance and the Findings above, staff
recommends that the revocation be denied.
The petitioner addressed the Board and reiterated the
Multiple persons spoke in favor of the request. Multiple
persons spoke against the request, including the property
owner and the daycare operator.
The Board discussed the request and the issues surrounding
the neighborhood. There are two SUPs in the neighborhood, one
at 1112 Bridge and the other at 1118 Bridge. The Board found
that the issues have to do with enforcement of on-street
Hart stated that the Board has the authority to impose
conditions on SUP14-02, but that could be a separate ...