The Lamar Company, LLC d/b/a Lamar Outdoor Advertising v. City of Des Moines, Iowa, City of Des Moines, Building and Fire Code Board of Appeals and City of Des Moines Zoning Board of Adjustment

IN THE COURT OF APPEALS OF IOWA

No. 21-0550
Filed June 29, 2022

LAMAR COMPANY, LLC d/b/a LAMAR OUTDOOR ADVERTISING,
Plaintiffs-Appellants,

vs.

CITY OF DES MOINES, IOWA, CITY OF DES MOINES, BUILDING AND FIRE
CODE BOARD OF APPEALS and CITY OF DES MOINES ZONING BOARD OF
ADJUSTMENT,

Defendants-Appellees.

Appeal from the lowa District Court for Polk County, Paul D. Scott, Judge.

A sign company appeals the denial of its certiorari actions challenging the
city’s rejection of permits for digital billboards. REVERSED AND REMANDED

WITH DIRECTIONS.
William M. Reasoner and Richard A. Malm of Dickinson, Mackaman, Tyler
& Hagen, P.C., Des Moines, for appellants.

John O. Haraldson, Des Moines, for appellees.

Heard by Vaitheswaran, P.J., and Tabor and Badding, Ju.
TABOR, Judge.

“Sign, sign. Everywhere a sign. Blockin’ out the scenery breakin’ my mind.
Do this, don’t do that, can’t you read the sign?”'

The Des Moines City Council may have had those lyrics in mind when it
enacted a new zoning ordinance in October 2019 that outlawed digital signs on
certain traffic corridors, effective December 15, 2019. Seeking the benefit of a
grandfather clause, Lamar Outdoor Advertising (Lamar) applied before that
effective date to convert five of its existing billboards from static to digital.2 City
officials started processing Lamar’s applications but denied the permits after
council members expressed concern about the digital billboard sites. Lamar
appealed to the Building and Fire Code Board of Appeals (Building Board) as well
as the Zoning Board of Adjustment (Zoning Board). Unsuccessful in both venues,
Lamar petitioned for writ of certiorari to the district court. That court consolidated
the actions and denied relief.

Lamar now alleges (1) the Building Board lacked jurisdiction to deny his
appeal under the new zoning ordinance and (2) the city and its boards acted
illegally in interpreting the grandfather clause. On the first point, the Zoning
Board’s independent finding that Lamar’s application was incomplete resolves any
jurisdictional question. On the second point, we agree the Zoning Board acted

illegally in denying Lamar’s sign permits based on the language of the grandfather

' Les Emmerson, Signs, recorded by Five Man Electric Band on Good-byes and
Butterflies (Lionel Records 1970).

@ Although the updated ordinance banned electronic signs prospectively, it
included a “transition provision” grandfathering in billboards for which “a complete
building permit had been accepted for processing” before December 15.
clause. Thus, we reverse and remand for the district court to enter an order
sustaining Lamar’s petition for writ of certiorari.

I. Facts and Prior Proceedings

In mid-November and early December 2019, Lamar submitted five permit
applications.? Lamar’s application materials included a completed permit request
form, leasing agreements, and details on the traditional billboards that would be
converted to digital On December 10, company manager Jason Pomrenke
emailed Neighborhood Inspection Zoning Administrator SuAnn Donovan for an
update on Lamar’s applications. Two days later, Donovan responded that she
used the credits that his company “had in the bank’ to allow the conversion of the
five proposed signs. The email also mentioned a sixth sign.* Donovan closed by

saying: “I will have staff process the permits.”

3 The proposed digital billboards were slated for 1922 Ingersoll Avenue; 2742 East
University Avenue; 4837 Park Avenue; 3519 Hubbell Avenue; and 215 University
Avenue. Through a conversion process, Lamar could earn credits by taking down
traditional static billboards. It could then apply those credits toward the
construction of those digital billboards.

4 The sixth sign was slated for install on East Fourteenth Street
The next morning, Development Zoning Inspector Hollie Burgus emailed

Pomrenke, asking for more documents.

From: Burgus, Hollie A.

To: jpomrenke@lamar.com

Subject Billboard Conversions

Date: Friday, December 13, 2019 10:07:00 AM
Attachments: image001.pnq

SpecialInspectionTestingAgreementForm. pdf

Good morning,

| am entering the billboard conversion permits into the system that you have requested and require
the following documents:

1. Engineering report for each billboard
2. Special Inspection Testing Agreement Farm (attached)
Thank you.

On December 18, Donovan emailed city manager Scott Sanders to let him
know that Lamar had “submitted sign permits” to convert those six signs to “digital
faces” using credits the company had “in the bank.” Donovan explained: “The
signs will have a single digital panel on each sign of 300 square feet.” She also
suggested: “It might be worth sharing this with council as they may have questions
when the conversions begin.”

Heeding Donovan’s advice, Sanders did share. Four days after the
effective date of the new zoning ordinance, Sanders notified the mayor and city

council members that Lamar’s billboard changes “have been requested and will be

processed.” Sanders advised them to direct questions to Donovan.
Indeed, council member Josh Mandelbaum worried about the conversions.

Sent: Monday, December 30, 2019 4:31 PM
To: Donovan, SuAnn M.

Ce: Sanders, Scott E.

Subject: FW: Digital sign conversions

| thought Ingersoll was going to be designated a Scenic Route and conversions wouldn't
be allowed? Could | get an update on the way our electronic billboard ordinance
works?

Are all of these able to go through by right?

Donovan replied: “Lamar had several credits banked.” She explained that
when Lamar “removed the static billboards they were not restricted as to where
they could use them to convert a board to electronic.” She confirmed that Lamar
“came in a couple of weeks before the new ordinance was adopted to use the
credits to convert the billboards to electronic. One was on Ingersoll.”

Council member Mandelbaum asked more questions: “When (specific date)
were the permits pulled? Were there any shortcomings in the permits that would
prevent them from being granted?” Donovan assured Mandelbaum that she found
no “shortcomings” in Lamar’s applications.

From: Donovan, SuAinn Ma.
Sent: Monday, December 30, 2019 4:44 PM
Te: Wandelbaum, Josh T. «loch! andeling yen a) doo ore

Ce: Sanders, Soott £E. : Hankins, Malcolm A.
i Johansen, Chris MM.

Cc: Sanders, Scott E. ; Hankins, Malcolm A. ;
Johansen, Chris M.

Subject: RE: Digital sign conversions

The Ingersoll location appears to be right across the street from apartments, does that violate the

old code?

lf we can’t prevent it based on the old code, could we prospectively fully ban billboards on Ingersoll
only (or maybe Merle Hay as well) and amortize all of the billboards on Ingersall/Merle Hay?

Josh

In her reply, Donovan outlined the chronology for the city’s processing of
Lamar’s applications. She noted that her review was “completed and the permits
were entered into the system” two days before the effective date of the code
changes. So in her view, Lamar’s applications for the digital billboards satisfied

the grandfather clause included in the new ordinance.
From: “Donovan, SuAnn M."

Date: January 2, 2020 at 9:04:23 AM CST

To: “Mandelbaum, Josh T."

Ce: “Sanders, Scott FE." , “Hankins, Malcolm A.”
, “Johansen, Chris M."
Subject: RE: Digital sign conversions

Councilmember Wandelbaum,
We started the review around November 22, 2019. The review was completed and the
permits were entered into the system December 13,2019. | believe we are waiting for

engineering reports te issue the permits.

lf there were any short comings in the application we would not have issued them.

Knowing (hese are contirowers al | took extra time and dida Very COMPPENENSIVe Feview

Since they were issued under the old code there was nothing to prevent the use of the
conversion credits.

After receiving that news, Mandelbaum looped in another council member,
Bill Gray. In early January 2020, Gray emailed Mandelbaum: “Disappointing. |
wish they had got me or you involved before this. | am still up for a fight.”

Eleven days later, Donovan sent Lamar a letter that contradicted her
position expressed in the email exchange with Mandelbaum. She told Pomrenke
that under the municipal code his “application submittals were not complete”
without “the required engineers report and a special testing agreement form.” And,
without a completed permit application, Lamar could not benefit from the
grandfather clause, according to the denial letter.

Believing that Donovan misinterpreted the grandfather clause, Lamar

appealed to the Zoning Board of Adjustment. But Donovan informed Lamar that it
should instead appeal to the city’s Building and Fire Code Board of Appeals. To
be safe, Lamar contested the denial before both boards.

The Building Board took the first bite at the apple. During its proceedings,
Lamar argued that, under the building code, its permit application was complete
before submission of an engineer’s report. To support its position, Lamar detailed
prior experiences when the city granted building permits despite months-long
delays between submission of the application and the engineering report.> As for
these digital billboard applications, Lamar pointed to Donovan’s December 12
email—in which she confirmed that she would have “staff process the permits’—
as proof that the applications were complete. Lamar also argued that the emails
between Donovan and the council members showed that the elected officials
pressured Donovan to craft a pretext for denial. But the Building Board was not
swayed by these arguments. In a March 2020 decision, it determined that “a
complete permit submittal had not been provided at a time before the zoning code
changed.”

Four months later, in July, the Zoning Board held its hearing. Lamar
reprised several of its arguments to this board. Plus, Lamar contended that the
Building Board improperly interpreted the grandfather clause, exceeding its
jurisdiction. But the Zoning Board too rejected Lamar’s appeal, noting that it had

no jurisdiction to review a decision of the Building Board. In the alternative, for

° Lamar grounded its claim in a code section that allows permit applications to
“expire” if no permit is issued within 180 days. See Des Moines City Code
§ 26-138(h)(4).
each sign, the Zoning Board found Lamar’s permit application was incomplete
“since it was lacking the required engineer’s report and special testing agreement.”

By August 2020, Lamar had filed two petitions for writ of certiorari in the
district court. On Lamar’s uncontested motion, the court consolidated the two
actions. In a March 2021 ruling, the district court denied the writs and sustained
the decisions of both boards. Lamar appeals.

ll. Scope and Standards of Review

lowa Rule of Civil Procedure 1.1412 governs our review. That rule provides
that “[a]Jn appeal from an order or judgment of the district court in a certiorari
proceeding is governed by the rules of appellate procedure applicable to appeals
in ordinary civil actions.” lowa R. Civ. P. 1.1412. In other words, we review on
assigned errors only. Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d
541, 543 (lowa 1996). Where evidence is in dispute, we are bound by the district
court’s fact findings, if supported by substantial evidence. See Chrischilles v.
Arnolds Park Zoning Bd. of Adjustment, 505 N.W.2d 491, 493 (lowa 1993). But
we are not bound by erroneous legal rulings that materially affect the court’s
decision. /d. And when the facts are undisputed, the construction of the ordinance
is a question of law. Jersild v. Sarcone, 149 N.W.2d 179, 184 (lowa 1967).

Hl. Analysis

A. Jurisdiction

To begin, we address Lamar’s argument that the Building Board and Zoning

Board ignored jurisdictional limitations. Lamar contends that, by deciding Lamar’s

6 The Building Board is a creature of chapter 26 of the Des Moines City Code and
may interpret that chapter and hear appeals from decisions of building officials. By
10

application was incomplete, the Building Board ventured outside its lane by
expressing an “interpretation and application” of the zoning code’s grandfather
clause. On the other hand, Lamar asserts that the Zoning Board wrongfully
conceded its jurisdiction by deferring to the Building Board’s determination on that
same provision.

Upon review of the record, we find no jurisdictional defect. True, the
Building Board determined that Lamar’s applications were incomplete as of the
effective date of the new ordinance. Also true, the Zoning Board determined it had
no jurisdiction to overturn that decision. But critically, the Zoning Board a/so issued
its own determination under the grandfather clause. The Zoning Board made the
independent finding that Lamar

ha[d] not provided any evidence that demonstrates that a complete

application was submitted prior to the retirement of the previous

zoning regulations .... The application was deemed incomplete

since it was lacking the required engineer’s report and special testing

agreement .... Since the application was not complete, the sign

permit was denied.
This alternative finding by the Zoning Board that Lamar did not qualify under the
transitional provision resolves any jurisdictional complaint.”

B. Interpretation of Grandfather Clause

Jurisdiction settled, we turn to the Zoning Board’s legal determination. The

purpose of a certiorari petition is “to test the legality of the action taken by an

inferior tribunal.” Bush v. Bd. of Trs. of Mun. Fire & Police Ret. Sys. of lowa, 522

contrast, chapter 134 of the city code governs the Zoning Board, and its scope is
limited to zoning disputes under that chapter.

7 Indeed, during oral argument, Lamar’s attorney agreed that the Zoning Board’s
alternative finding largely disposed of its jurisdictional argument.
14

N.W.2d 864, 866 (lowa Ct. App. 1994). The petitioner can show an illegality if that
tribunal has not followed a statute or substantial evidence does not support its
findings. /d. In Lamar’s view, the Zoning Board acted illegally because it
misinterpreted the transitional provision of the new city ordinance. That
“grandfather clause” allows applicants to proceed under the old ordinance if their
“complete building permit application” was “accepted for processing” before
December 15, 2019.8 Lamar contends its applications were “accepted for
processing” by December 12, pointing to the emails from zoning administrator
Donovan and city manager Sanders.

But in denying Lamar’s petition, the district court did not rest its
determination on the “accepted for processing” phrase. The court instead focused
on what was required for a “complete” permit application under the grandfather
clause. In addressing that question, the court rejected the city’s argument that,
from the moment they were filed, Lamar’s applications were incomplete without
the engineering reports and a special inspection testing agreement under Des

Moines City Code section 26-803.2 Because that building code provision included

8 The city ordinance says:
Any building, development or structure for which a building permit
was issued or a complete building permit application had been
accepted for processing before the effective date specified in section
134-1.3 of this article may be completed in conformance with the
issued building permit and other applicable permits and conditions,
even if such building, development or structure does not comply with
provisions of this zoning ordinance.
Des Moines City Code § 134-1.11.1 (emphasis added).
° That provision states:
Sign and billboard permit application; plans and
specifications.
(a) Application for a sign permit shall be made in writing upon
forms furnished by the zoning enforcement officer. Such application
12

“when required” language, the court decided the applications could be “complete”
without submission of those added documents.

That said, the court then pivoted to find Lamar’s applications were no longer
complete after zoning inspector Burgus requested the engineering reports and
testing agreement. The court held that as of December 13 those documents were
required for a complete application under chapter 26. Based on that interpretation,
the court accepted the determinations of the Building Board and Zoning Board that
“Lamar did not submit a complete permit application as of December 15, 2019.”

We disagree with the district court’s analysis. When reading ordinances,
we apply the general rules of statutory interpretation. City of Okoboji v. Okoboji
Barz, Inc., 717 N.W.2d 310, 313-14 (lowa 2006). Thus, we start with ordinance
language, looking for “a plain and clear meaning within the context of the
circumstances presented by the dispute.” McGill v. Fish, 790 N.W.2d 113, 118
(lowa 2010). If, after consulting the text, the ordinance is ambiguous, we apply
rules of construction. /d. at 118. Ambiguity exists when reasonable minds could

differ on the meaning. /d.

shall contain the street address or legal description, as required, of
the property upon which the sign is to be located, the name and
address of the owner and the sign erector, and such other
information as may be required by the zoning enforcement officer.
(ob) Two copies of plans and specifications shall be submitted
when required with the application for each sign permit. Such plans
shall show complete details, methods of attachment or support,
location, and materials to be used. Computations, stress diagrams,
and other data sufficient to show the correctness of the plans shall
be submitted when required by the community development
department.
Des Moines City Code § 26-803 (emphasis added.).
13

These principles in mind, we turn to the text of section 134-1.11.1(A), the
grandfather clause. Both the city and the district court isolated the term “complete”
when deciding that Lamar’s applications were not saved by the grandfather clause.
But to decipher the meaning of the language, we must consider the full context of
the clause. See In re Est. of Glaser, 959 N.W.2d 379, 386 (lowa 2021). In context,
an application is considered complete if it has been “accepted for processing.” And
if the city accepted the application for processing before December 15, then the
project may proceed under the prior zoning regulations. Read as a whole, no
ambiguity appears in the grandfather clause.

What’s more, the intended meaning of completeness and acceptance for
processing in section 134.1.11.1(A) is even clearer when read along with
section 134.6.1.4(D). Under that section, the city will consider an application
“complete and ready for processing’ if it is submitted “in the required number and
form, is accompanied by all required information, . . . and is accompanied by the
required application filing and notification fees.” Des Moines City Code
§ 134.6.1.4(D)(1). “If an application is determined to be incomplete, the official
responsible for accepting the application must provide notice to the applicant along
with an explanation of the application’s deficiencies.” /d. § 134.6.1.4(D)(2). “No
further processing of incomplete applications will occur and incomplete
applications will be pulled from the processing cycle.” /d. § 134.6.1.4(D)(3). On
the other hand, “[a]pplications deemed complete will be considered to be in the
processing cycle and will be reviewed by staff and other review and decision-
making bodies in accordance with applicable review and approval procedures of

this zoning ordinance.” /d. § 134.6.1.4(D)(4).
14

Viewing the grandfather clause in tandem with section 134.6.1.4(D), we find
a lack of substantial evidence to show that Lamar’s applications were not
“accepted for processing” before the deadline. In fact, just the opposite occurred.
Donovan, the zoning official responsible for accepting the application, told Lamar
three days before the effective date of the new ordinance that she would “have
staff process the permits.” In ruling on Lamar’s motion to reconsider, the district
court decided that Donovan’s statement was different from saying that the permits
had been “accepted for processing.” We disagree. Every indication was that
Donovan would have the applications reviewed by staff. That message was
reinforced by Donovan's confirmation that she has used Lamar’s banked
conversion credits to facilitate the installation of the proposed digital signs. '°

And nothing about Burgus’s email on Friday, December 13, asking Lamar
for an engineering report and a special inspection testing agreement, changes the
fact that the city had already accepted the applications for processing. Burgus was
not the person responsible for accepting or rejecting the applications. And even if
she had been, she did not inform Lamar that the applications were incomplete, as
alleged in the city’s appellee’s brief. Burgus’s email did not use the word
“incomplete.” In fact, even as Burgus requested additional documents, she told

Pomrenke that she was “entering the billboard conversion permits into the system.”

10 In its appellee’s brief, the city contends that Lamar misconstrues Donovan’s
statements about conversion credits as a guarantee that their digital billboard
permits were approved. But the grandfather clause applied if the building permits
were issued or if a complete application had been “accepted for processing’—a
step short of approval. Thus, the city’s reference to approval, rather than
processing, is off the mark.
15

Likewise, it was obvious that Donovan did not believe that Lamar’s
applications had been “pulled from the processing cycle.” Rather, she contacted
the city manager three days after the effective date of the new ordinance to let him
know that Lamar had submitted the applications. She even described the size of
the digital panels that the new signs would feature. And expecting that the city
council might have questions about the sign conversions, Donovan urged Sanders
to give them a heads up. When Sanders did so, he was equally definitive about
the city’s acceptance of the applications, telling the mayor and city council that
Lamar’s billboard conversions “have been requested and will be processed.”

That certainty that the digital signs would be grandfathered in persisted
when Donovan first received pushback from council member Mandelbaum. In
emails that the district court described as “bordering on” an attempt to apply
improper pressure on Donovan, or at least having “the appearance of impropriety,”
Mandelbaum asked Donovan if there were any “shortcomings” in Lamar’s
applications that would allow the city to reject them. Donovan assured him that
she had done “a very comprehensive review” because she knew the digital signs
would be “controversial? and found no shortcomings that would prevent the
application of the “old code” to Lamar’s applications. A second city council
member, Bill Gray, called the situation “disappointing,” and expressed his
willingness to intervene in the matter.

Our record does not show what communication, if any, occurred between
city council members and Donovan after January 2. But on January 13, she
changed her tune and notified Pomrenke that the applications were denied. For

the first time, she informed Lamar that the applications “were not complete”
16

without the engineering report and special testing agreement form. Pointing to
Donovan's about-face, Lamar contends the city’s decision was made “arbitrarily”
under “political pressure.” See City of lowa City v. Hegen Elecs., Inc., 545 N.W.2d
530, 535 (lowa 1996) (“Zoning decisions ‘must not be arbitrary and capricious so
as to amount to an abuse of governmental power.” (citation omitted)).

We agree with Lamar. An arbitrary decision is not governed by fixed rules
or standards, but springs from the decider’s will or discretion. See Churchill Truck
Lines, Inc. v. Transp. Regul. Bd. of lowa Dep't of Transp., 274 N.W.2d 295, 299
(lowa 1979) (citing Paul v. Bd. of Zoning Appeals of City of New Haven, 110 A.2d
619, 621 (Conn. 1955)). The city’s denial of Lamar’s sign permits, affirmed by the
Zoning Board, appears to reflect the will of the council members rather than city
officials’ own previous interpretation of the grandfather clause as applying to the
applications. The arbitrary denial of Lamar’s application was counter to the
language of the grandfather clause. Applying sections 134.1.11.1(A) and
134.6.1.4(D) to these facts, we cannot find substantial evidence to support the
Zoning Board’s decision. Thus, we reverse the district court’s ruling and remand
with directions to enter an order sustaining Lamar’s petition for writ of certiorari.

REVERSED AND REMANDED WITH DIRECTIONS.