Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hilkemann v. City of Carter Lake City Council

Court of Appeals of Iowa

September 11, 2019

VERNON L. HILKEMANN and MARY E. HILKEMANN, Plaintiffs-Appellants,
v.
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.

          Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.

         Petitioners appeal the district court ruling on a writ for certiorari.

          Troy A. Howell and Brett R. Marshall of Lane & Waterman LLP, Davenport, for appellant.

          Robert M. Livingston of Stuart Tinley Law Firm, LLP, Council Bluffs, for appellee City of Carter Lake.

          David 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.

          BOWER, JUDGE.

         Vernon 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.

         I. Background Facts & Proceedings

         Lakeside 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.[1] Lakeside sought variances to upgrade its facilities.

         On May 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.[2] 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 plaintiffs.

         On 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.

         As to 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.[3] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.