VERNON L. HILKEMANN and MARY E. HILKEMANN, Plaintiffs-Appellants,
CITY OF CARTER LAKE CITY COUNCIL, CITY OF CARTER LAKE BOARD OF ADJUSTMENT, CITY OF CARTER LAKE PLANNING BOARD, and LAKESIDE AUTO RECYCLERS INC., Defendants-Appellees.
from the Iowa District Court for Pottawattamie County,
Kathleen A. Kilnoski, Judge.
appeal the district court ruling on a writ for certiorari.
A. Howell and Brett R. Marshall of Lane & Waterman LLP,
Davenport, for appellant.
M. Livingston of Stuart Tinley Law Firm, LLP, Council Bluffs,
for appellee City of Carter Lake.
Richter, Council Bluffs, and Robert S. Sherrets, Omaha,
Nebraska, for appellee Lakeside Auto Recyclers Inc.
Considered by Mullins, P.J., Bower, J., and Vogel, S.J.
and Mary Hilkemann appeal a district court ruling relating to
zoning decisions by the City of Carter Lake City Council,
Planning Board, and Board of Adjustment (BOA) (collectively
"City Entities"). The Hilkemanns contest the
district court's finding the relation-back doctrine did
not apply and the court's authority to remand annulled
variances to the board of adjustment for further proceedings.
We find the relation-back doctrine does not apply to
plaintiffs who join in a petition for writ of certiorari and
the court has the authority to order a remand.
Background Facts & Proceedings
Auto Recyclers (Lakeside) has operated a salvage yard in the
City of Carter Lake for over forty years. The operation was a
legal non-conforming use under the city's zoning
ordinances during that time. On April 24, 2017, the city
amended the zoning ordinance to permit recycling and
reclamation in the relevant district. Lakeside sought variances to
upgrade its facilities.
24, 2017, Craig and Lacey Akridge and John Doe filed a writ
of certiorari challenging the zoning decision and variances
issued. The Akridges verified the petition; John Doe did not.
The petition was served on Lakeside and the City Entities on
May 26. On June 9, the petition was amended to withdraw
Akridges and join Vernon and Mary Hilkemann as plaintiffs;
John Doe remained a petitioner. The Hilkemanns verified the
amended petition, which remained unchanged beyond the
difference in plaintiffs. In December, the court denied John
Doe's request to proceed anonymously and, on January 3,
2018, granted Doe's motion for voluntary dismissal
without prejudice, leaving the Hilkemanns as the only
January 5, a hearing was held on the petition for writ of
certiorari. In a written order filed on April 20, the
district court dismissed the petition for writ of certiorari
in part and sustained the writ in part. The court found the
relation-back doctrine does not apply to certiorari actions
challenging municipal decisions and held the joinder of the
Hilkemanns as petitioners did not relate back to the filing
of the writ by the Akridges and John Doe. With no petitioner
remaining in the case from the original May 24 petition, the
court found the Hilkemanns could only challenge municipal
decisions made within thirty days of the June 9 amended
petition-five variances made on or after May 10. The court
did not consider the zoning decision or twenty-five variances
issued by the city council and planning board between April
24 and May 9.
the five variances still under consideration, the district
court sustained the writ of certiorari. The court found under
Iowa Code chapter 414 (2017), the city council and planning
board did not have the authority to issue variances to the
zoning ordinances-the court found the BOA "has exclusive
authority" to issue variances. Any variances granted by the
planning board or city council would be ultra vires
and outside that entity's legal authority. The court
annulled three variances granted by the city council after
May 10 based on lack of authority. The court found Lakeside
had not established the economic-hardship requirement for ...