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Nicholas S. Bussanmas, L.L.C. v. City Council of City of Des Moines

Court of Appeals of Iowa

July 18, 2018

NICHOLAS S. BUSSANMAS, L.L.C., Plaintiff-Appellant,

          Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

         Nicholas S. Bussanmas, L.L.C. appeals from the denial of its petition for writ of certiorari challenging the Des Moines City Council's denial of its preliminary subdivision plat "Winterfell."

          Joseph M. Borg and Benjamin D. Bruner of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellant.

          Michelle Mackel-Wiederanders, Assistant City Attorney, for appellee.

          Considered by Vogel, P.J., and Doyle and Bower, JJ.

          DOYLE, JUDGE.

         The City Council of the City of Des Moines[1] denied Nicholas S. Bussanmas, L.L.C.'s (Bussanmas) request for review and approval of its preliminary plat to subdivide Bussanmas's property into three lots for development of single-family dwellings. Bussanmas appealed by filing a petition for writ of certiorari in district court challenging the Council's refusal to approve its application.[2] Following a trial de novo as an equitable proceeding under Iowa Code section 354.10(3) (2017), the district court denied Bussanmas's petition, finding sufficient evidence supported the Council's decision to reject Bussanmas's preliminary plat. Bussanmas appeals the district court's denial, asserting the Council's decision was unreasonable, and thus the district court's denial unreasonable. Upon our review, we affirm.

         I. Background Facts and Proceedings.

         In 2015, Bussanmas purchased 2.34 acres of land located at 3816 John Lynde Road in Des Moines. The property, located in a one-family-residential-district zone, contained a single-family dwelling and undeveloped timbered land along a ravine. Prior to purchasing the property, Bussanmas contacted the City to see whether this was a property that could be subdivided, and a City employee in city development indicated that the property could be subdivided into four lots if the Council granted a variance to subdivide the property. After purchasing the property, a four-lot subdivision plat was prepared. Bussanmas applied for preliminary approval of the plat, including requesting the necessary variance concerning the lots' proposed frontages. Neighbors of the property received notice of Bussanmas's application. Neighbors were generally opposed to Bussanmas's plans, and numerous persons sent responses to the City citing their objections. The Zoning Board of Adjustment denied the four-lot plan in October 2015. After receiving feedback from the City, Bussanmas went back to the drawing board and a three-lot subdivision plat was prepared that would not require a variance to accommodate frontage requirements.

         In April 2016, Bussanmas presented three-lot preliminary plat "Winterfell" to the City's Plan and Zoning commission. Neighbors continued to object to Bussanmas's development plans. The commission voted to deny the staff's recommendation for approval of the preliminary plat.

         Bussanmas appealed the denial of the preliminary plat to the Council. Neighbors attended the Council's June 13, 2016 meeting and voiced their opposition to the plan. The Council voted to deny Bussanmas's preliminary subdivision plat, making the following findings of fact and objections:

a. In accordance with Iowa Code Section 354.8, the City Council is charged with considering the burden on public improvements and balancing interests between the appellant, future purchasers, and the public interest in reviewing proposed subdivision plats, and that Council finds that the preliminary plat "Winterfell" would create a burden on the City's storm water management system and the surrounding neighborhood that outweighs the interest of the developer and future purchasers of the subject property.
b. The preliminary plat "Winterfell" does not meet the requirements of Des Moines Municipal Code Section 106-3(b) which states that "land to be subdivided shall be of such character that it can be used safely for building purposes without danger to health or peril from fire and flood and shall not be subdivided until adequate utilities, drainage, streets and similar improvements exist or are satisfactorily provided."
c. The preliminary plat "Winterfell" is not consistent with the following purposes stated in the City's subdivision ordinance (Municipal Code Chapter 106): (i) to "protect and provide for the public health, safety, and general welfare of the city"; (ii) to "secure safety from . . . flooding"; (iii) to "ensure the adequacy of drainage facilities; safeguard the water table; and encourage the wise use and management of natural resources throughout the city in order to preserve the integrity, stability, and beauty of the community and the value of land"; and (iv) to "provide for due consideration to be given to the preservation of canopied areas and ...

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