NICHOLAS S. BUSSANMAS, L.L.C., Plaintiff-Appellant,
CITY COUNCIL OF THE CITY OF DES MOINES, Defendant-Appellee.
from the Iowa District Court for Polk County, Scott D.
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
M. Borg and Benjamin D. Bruner of Dickinson, Mackaman, Tyler
& Hagen, P.C., Des Moines, for appellant.
Michelle Mackel-Wiederanders, Assistant City Attorney, for
Considered by Vogel, P.J., and Doyle and Bower, JJ.
City Council of the City of Des Moines 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. 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
Background Facts and Proceedings.
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.
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
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
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 ...