from the Iowa District Court for Story County, Michael J.
2304, LLC appeals the district court order annulling its writ
Hulett of Nyemaster Goode, P.C., Des Moines, for appellant.
M. Updegraff, Brent L. Hinders, and Hugh J. Cain of Hopkins
& Huebner, P.C., Des Moines, for appellee.
by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
Ames Zoning Board of Adjustment (Board) denied an application
by Ames 2304, LLC for a permit to remodel the interior of its
apartment building that would increase the number of bedrooms
in the building but not the number of dwelling units. The
Board denied the application, determining the proposed
remodel was prohibited under the zoning ordinance because the
project would increase the intensity of a nonconforming use.
It reasoned that the addition of bedrooms and concomitant
addition of required off-street parking would intensify the
nonconforming use. Ames 2304 petitioned the district court
for a writ of certiorari. The district court annulled the
writ, and Ames 2304 appeals.
appeal, Ames 2304 alleges the Board acted illegally in
denying its application for a permit. In the context of the
facts presented, we interpret the ordinance to tie
"increase in intensity" to an increase in number of
dwelling units, and not to an increase in number of bedrooms,
occupants, or required off-street parking. We conclude that
because the proposed remodeling project does not increase the
number of dwelling units, it does not violate the
ordinance's prohibition against increases in intensity of
a nonconforming use. The Board's interpretation of the
ordinance on this issue is erroneous and denial of the permit
on that basis illegal. We therefore reverse the judgment of
the district court. We remand to the district court for an
order sustaining the writ of certiorari.
Background Facts and Proceedings.
2304 owns the property at 2304 Knapp Street in Ames. The
property is currently zoned as "Low Density
Residential," which only permits one single-family
residential dwelling per lot. The structure standing on the
lot was built in 1910 as a single-family structure. It was
converted into an apartment building consisting of four
one-bedroom apartments in 1928. Because the property was
converted before the current zoning ordinance went into
effect, it is allowed to continue as a legal nonconforming
2016, Ames 2304 applied for a permit to remodel the
property's interior. The remodel would change the four
one-bedroom units into two studio units, one two-bedroom
unit, and one three-bedroom unit. A zoning enforcement
officer denied the permit after determining that the increase
in the number of bedrooms to the building and increase in
required off-street parking would increase the intensity of
the nonconforming use, which the officer concluded was not
permitted under the zoning ordinance. Ames 2304 appealed the
decision to the Board. After a hearing, the Board affirmed
the decision of the zoning enforcement officer.
2304 filed an action for writ of certiorari in district
court. The district court determined the Board correctly
interpreted the zoning ordinance section pertaining to
nonconforming uses, correctly determined that the increase in
number of bedrooms constituted an increase in the intensity
of the nonconformance, and correctly interpreted the
provisions of the parking space ordinance as evidencing an
increase in intensity of the nonconforming use. The court
annulled the writ, and Ames 2304 appeals.
Scope of Review.
review the district court's judgment in a certiorari
action for correction of errors at law. See State v. Iowa
Dist. Ct. ex rel. Story Cty., 843 N.W.2d 76, 79-80 (Iowa
2014). We are bound by the findings of the trial court if
supported by substantial evidence in the record. See
Iowa R. App. P. 6.907; Nash Finch Co. v. City Council of
City of Cedar Rapids, 672 N.W.2d 822, 825 (Iowa 2003).
However, we are not bound by erroneous legal rulings that
materially affect the court's decision. See
Chrischilles v. Arnolds Park Zoning Bd. of Adjustment,
505 N.W.2d 491, 493 (Iowa 1993).
certiorari action is a procedure to test whether an inferior
board, tribunal, or court exceeded proper jurisdiction or
otherwise acted illegally. See Iowa R. Civ. P.
1.1401. An illegality exists when an inferior tribunal has
failed to apply the law properly or when its factual findings
are not supported by substantial evidence. See Denison
Mun. Utils. v. Iowa Workers' Comp. Comm'r, 857
N.W.2d 230, 234 (Iowa 2014). Ames 2304 bears the burden of
proving the illegality. See City of Grimes v. Polk Cty.
Bd. of Supervisors, 495 N.W.2d 751, 752 (Iowa 1993).
question before the Board and the district court involved an
interpretation of the zoning ordinance. "Although we
give deference to the board of adjustment's
interpretation of its city's zoning ordinances, final
construction and interpretation of zoning ordinances is a
question of law for us to decide." Lauridsen v.
City of Okoboji Bd. of Adjustment, 554
N.W.2d 541, 543 (Iowa 1996).
2304 contends the Board acted illegally in denying it a
permit for its proposed remodeling plan by incorrectly
applying the zoning ordinance's prohibition against
intensification of nonconforming uses. It also contends
substantial evidence does not support the Board's finding
that the plan would increase the intensity of the
property in question is a nonconforming use.
A nonconforming use is one "that lawfully existed prior
to the time a zoning ordinance was enacted or changed, and
continues after the enactment of the ordinance even though
the use fails to comply with the restrictions of the
ordinance." City of Okoboji v. Okoboji Barz,
Inc., 746 N.W.2d 56, 60 (Iowa 2008). This lawfully
existing prior use of the property creates a vested right in
the continuation of the nonconforming use once the ...