IN THE COURT OF APPEALS OF IOWA
No. 17-1149
Filed October 10, 2018
AMES 2304, LLC,
Plaintiff-Appellant,
vs.
CITY OF AMES, ZONING BOARD OF ADJUSTMENT,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Michael J. Moon,
Judge.
Ames 2304, LLC appeals the district court order annulling its writ of
certiorari. REVERSED AND REMANDED.
Debra Hulett of Nyemaster Goode, P.C., Des Moines, for appellant.
Eric M. Updegraff, Brent L. Hinders, and Hugh J. Cain of Hopkins &
Huebner, P.C., Des Moines, for appellee.
Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
DOYLE, Judge.
The 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.
On 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.
I. Background Facts and Proceedings.
Ames 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
3
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 use.
In 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.
Ames 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.
II. Scope of Review.
We 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.
4
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).
III. Discussion.
A 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).
The 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).
Ames 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 nonconforming use.
A. Ordinance.
The property in question is a nonconforming use.
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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 ordinance takes effect unless the
nonconforming use is legally abandoned, enlarged, or extended. Id.
City of Des Moines v. Ogden, 909 N.W.2d 417, 423-24 (Iowa 2018). At issue is
Ames Municipal Ordinance section 29.307(2), the ordinance addressing
nonconforming uses. It states in part:
(2) Nonconforming Uses.
Any use of any structure or lot that was conforming or validly
nonconforming and otherwise lawful at the enactment date of this
ordinance and is nonconforming under the provisions of this
Ordinance or that shall be made nonconforming by a subsequent
amendment, may be continued so long as it remains otherwise
lawful, subject to the standards and limitations of this Section.
(a) Movement, Alteration and Enlargement.
(i) Enlargement.
a. A nonconforming use may not be increased in
intensity and may not be enlarged, expanded or
extended to occupy parts of another structure or
portions of a lot that it did not occupy on the
effective date of this Ordinance, unless the
enlargement, expansion or extension complies
with all requirements for the zone, does not
create an additional nonconformity, and is
approved for a Special Use Permit, . . . except
as described in subsection b. following.
b. Any building or structure containing a
nonconforming use may be enlarged up to
125% of the floor area existing on the effective
date of this ordinance, provided that the
expanded building structure complies with all
density, coverage and spatial requirements of
the zone in which it is located.
c. The enlargement of a nonconforming use that
has the effect of making a structure
nonconforming, other than as described in
subsection b. above, shall not be specially
permitted . . . , but rather shall be construed as
a request for a variance . . . .
6
(ii) Exterior or Interior Remodeling or Improvements to
Structure.
Exterior or interior remodeling or improvements
to a structure containing a nonconforming use shall be
permitted, provided that any proposed enlargement,
expansion or extension shall be subject to the
provisions set forth in the above paragraph.
Ames, Iowa Mun. Code § 29.307.
The Board determined that the paragraph (ii) incorporates paragraph (i) by
reference:
the reference in Section 29.307(2)(a)(ii) to the preceding paragraph,
29.307(2)(a)(i), was intended to incorporate subsection (i)’s
prohibition on increases in intensity in structures that are a non-
conforming use regarding remodeling of the structure. Therefore,
the ordinance does not allow increases in intensity for non-
conforming structures undergoing internal remodeling. This is in line
with the general purpose of the “Nonconformities” section of the
ordinance, expressed in Section 29.307(1).
In applying to the district court for a writ of certiorari, Ames 2304 argued that the
“increase in intensity” term in paragraph (i) only applies to remodels that enlarge,
expand, or extend a nonconforming structure, and that the language of paragraph
(ii) requires the Board to approve any interior remodel that does not enlarge,
expand, or extend a structure. The district court found that the Board correctly
interpreted the ordinance as prohibiting an increase in the intensity of a
nonconforming use through an interior remodeling project, noting, “[a]n
interpretation of the term ‘increase in intensity’ in the Ames ordinance cannot
ignore the practical effect of increasing the number of occupants.” The court also
found that the Board correctly determined that an increase from four to seven
bedrooms constitutes an increase in intensity of the nonconformance. Finally, the
court further found that the Board correctly concluded the additional parking
7
required because of the increase in bedrooms evidenced an increase in intensity
of the nonconforming use.
B. Principles of statutory construction.
In interpreting an ordinance, we do not search for meaning beyond its
express terms if the ordinance is plain and its meaning is clear. See Baker v. Bd.
of Adjustment, 671 N.W.2d 405, 416 (Iowa 2003). Because reasonable persons
can disagree as to whether the requirements of section 29.307(2)(i) apply to
interior remodels of nonconforming structures, the ordinance is ambiguous.1 See
City of Okoboji v. Okoboji Barz, Inc., 717 N.W.2d 310, 314 (Iowa 2006) (stating
ambiguity exists if reasonable persons can disagree on the meaning of a provision
and may arise from either the meaning of particular words or the general scope
and meaning of the ordinance in its totality). Therefore, we must apply the general
rules of statutory construction. See id.
“The goal of statutory construction is to determine legislative intent.” Id. In
doing so, we look at the words used in the ordinance rather than what the
ordinance should or might have said. See id. Unless the ordinance defines a term
or it has an established meaning in the law, we give the words in the ordinance
their ordinary and common meaning by considering the context within which they
are used. See id. We consider the ordinance in its entirety in order to discern its
natural and intended meaning. See id. We avoid construing statutory provisions
in a manner that will lead to absurd results. See Brewer-Strong v. HNI Corp., 913
N.W.2d 235, 251 (Iowa 2018). Furthermore, zoning restrictions are construed
1
In the understatement of the day, the City acknowledged at oral argument the ordinance
was ambiguous.
8
strictly to favor the free use of property and will not be extended by implication or
interpretation. Ernst v. Johnson Cty., 522 N.W.2d 599, 602 (Iowa 1994).
C. Error preservation.
On appeal, Ames 2304 makes two arguments in support of its claim that the
Board misapplied the law in denying its permit for an interior remodel. First, it
reiterates the argument it made before the district court—that the provisions of
paragraph (i) only apply to interior remodels that enlarge, expand or extend the
size of the nonconforming structure and, because its remodel plan does not
change the structure’s size, it was error to apply the “increase in intensity”
prohibition found in paragraph (i). Second, Ames 2304 cites the municipal code
definition of “intensity” to argue the “increase in intensity” prohibition does not apply
to its proposed remodel of a residential building.2
The City of Ames concedes that Ames 2304 preserved error on the specific
argument it made below—that the “increase in intensity” prohibition set forth in
paragraph (i) does not apply to proposed remodels that do not increase the size of
the structure. However, it argues Ames 2304 failed to preserve error on its
argument that the “increase in intensity” prohibition does not apply to any property
used for residential purposes under the definition of “intensity” set forth in the
ordinance because Ames 2304 never presented the argument to the district court.
2
The municipal code defines “intensity” as “the degree or level of concentration to which
land is used for commercial, industrial or any other nonresidential purpose.” Ames, Iowa
Mun. Code § 29.201(109). Even if found to be applicable to residential uses, this definition
provides no guidance as to how it is to be applied here. Is “degree or level of
concentration” tied to number of dwelling units, bedrooms, occupants, required parking
spaces, or some other factor? Who knows?
9
“It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002); accord Vincent v.
Four M Paper Corp., 589 N.W.2d 55, 64 (Iowa 1999) (“We will not address an
argument which the district court did not have an opportunity to consider.”). The
purpose of our error-preservation rule is to give “opposing counsel notice and an
opportunity to be heard on the issue and a chance to take proper corrective
measures or pursue alternatives in the event of an adverse ruling.” Lee v. State,
815 N.W.2d 731, 739 (Iowa 2012) (citation omitted).
Based upon considerations of fairness, this court is not ordinarily a
clearinghouse for claims which were not raised in the district court.
It is fundamentally unfair to fault the trial court for failing to rule
correctly on an issue it was never given the opportunity to consider.
Furthermore, it is unfair to allow a party to choose to remain silent in
the trial court in the face of error, taking a chance on a favorable
outcome, and subsequently assert error on appeal if the outcome in
the trial court is unfavorable.
Bill Grunder’s Sons Constr., Inc. v. Ganzer, 686 N.W.2d 193, 197 (Iowa 2004)
(cleaned up).3
Ames 2304 claims it preserved error because its general argument—that
the Board incorrectly interpreted the provisions of paragraph (i) as applying to the
remodel because it increased the intensity of the nonconforming use—was raised
and decided below and is being reasserted on appeal. In its view, the two
arguments it presents on appeal in support of the issue—that the “increase in
3
Cleaned up” is a relatively new parenthetical used to indicate that internal quotation
marks, alterations, and citations have been omitted from quotations for readability
purposes. See United States v. Steward, 880 F.3d 983, 986 n.3 (8th Cir. 2018); Jack
Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143 (Fall 2017).
10
intensity” test is inapplicable because (1) its remodel does not propose to enlarge,
expand, or extend the nonconforming structure and (2) the definition of “intensity”
cannot be applied to apartment buildings—are merely different theories in support
of its claim. It argues our error-preservation rules do not preclude a party from
presenting a new theory in support of its claim on appeal. In other words, Ames
2304 contends that making any argument below in support of the general position
that the Board incorrectly applied the “increase in intensity” prohibition preserved
for appeal all conceivable arguments in support of the proposition, regardless of
whether it made the argument below.
There is support for this proposition. For instance, a party need not cite a
specific statute or rule in support of an issue in order to cite that statute or rule on
appeal. State v. Christensen, 792 N.W.2d 685 (Iowa 2010); accord Schneider v.
State, 789 N.W.2d 138, 147 (Iowa 2010) (holding the plaintiffs’ failure “to cite the
specific statute or rule in support of an issue at the district court level is not
dispositive of whether the issue has been preserved for appeal”; although the
plaintiffs failed to cite the applicable state law cited on appeal, it cited the corollary
federal regulation and district court’s ruling implicitly rejected the claim, thus
preserving error on its claim regarding the state statute). Rather, the preservation
question turns on whether “the nature of the error has been timely brought to the
attention of the district court.” Summy v. City of Des Moines, 708 N.W.2d 333, 338
(Iowa 2006), overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d
699, 708 n.3 (Iowa 2016) (acknowledging that, although it would be helpful for a
party to provide the district court with the same authorities raised on appeal, “[e]rror
preservation does not turn . . . on the thoroughness of counsel’s research and
11
briefing”); see also Bartlett Grain Co., LP v. Sheeder, 829 N.W.2d 18, 24 n.4 (Iowa
2013) (finding error preserved, even though parties did not cite to specific UCC
provision because appellant alerted the court of its “essential claim”); Collister v.
City of Council Bluffs, 534 N.W.2d 453, 454–55 (Iowa 1995) (holding that the city
preserved error on a statutory immunity argument by claiming at trial, without citing
the statute, that there was no duty to warn the plaintiffs).
In JBS Swift & Co. v. Ochoa, 888 N.W.2d 887, 893 (Iowa 2016), the
appellant failed to argue before the agency that Iowa Code section 85.34(3)(b)
prohibits simultaneous receipt of permanent partial and permanent total disability
payments. However, “the issue of whether section 84.34 taken as a whole
authorizes concurrent awards of permanent partial disability and permanent total
disability benefits was certainly briefed by both sides and raised before the
agency.” JBS Swift & Co., 888 N.W.2d at 893. The supreme court characterized
the appellant’s cite to section 85.34(3)(b) for the first time on appeal as “additional
ammunition for the same argument . . . made below—not a new argument
advanced on appeal.” Id.4
We choose to address both of Ames 2304’s increase-in-intensity
arguments.
4
A number of states provide an exception to the error-preservation rule when a party
raises a new theory of statutory interpretation on appeal. See, e.g., Bleecker St. Mgmt.
Co. v. New York State Div. of Hous. & Cmty. Renewal, 727 N.Y.S.2d 76, 77 (N.Y. App.
Div. 2001) (considering claim involving “solely a question of statutory interpretation” raised
for the first time on appeal); Bennett v. Hardy, 784 P.2d 1258, 1260 (Wash. 1990) (“[A]
statute not addressed below but pertinent to the substantive issues which were raised
below may be considered for the first time on appeal.”).
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D. Analysis.
We address Ames 2304’s argument made to the district court—that the
provisions of section 29.307(2)(a)(i) only apply to interior remodels that enlarge,
expand or extend the size of the nonconforming structure, and, because its
remodel plan does not change the structure’s size, it was error to apply the
“increase in intensity” prohibition found in paragraph (i). The “Enlargement”
paragraph states in relevant part: “A nonconforming use may not be increased in
intensity and may not be enlarged, expanded, or extended to occupy parts of
another structure or portions of a lot that it did not occupy.” Ames, Iowa Mun. Code
§ 29.307(2)(a)(i)(a). It is not disputed that the proposed remodel is not an
enlargement, expansion, or extension. It follows, as Ames 2304 argues, that it is
entitled to a permit for the interior remodel because the ordinance provides:
“Exterior or interior remodeling or improvements to a structure containing a
nonconforming use shall be permitted, provided that any proposed enlargement,
expansion or extension shall be subject to the provisions set forth in the above
paragraph.” Id. § 29.307(2)(a)(ii) (emphasis added). The argument is attractive at
first blush, particularly in view of the ordinance’s ambiguity. But, we must consider
the ordinance in its entirety, not just isolated words or phrases, in order to discern
its natural and intended meaning. See Brewer-Strong v. HNI Corp., 913 N.W.2d
235, 251 (Iowa 2018); City of Okoboji, 717 N.W.2d at, 314.
In addressing the argument made by Ames 2304, the district court
determined that the “increase in intensity” term set forth in section 29.307(2)(a)(i)
applies equally to interior remodels that do not enlarge the nonconforming
structure and those that do enlarge the nonconforming use, reasoning:
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It would be incongruent to assert that paragraph (ii) denied the City
discretion to prohibit the remodeling in light of the overarching
responsibilities set out in (1)(a). [Ames 2304]’s argument would
allow remodeling that would increase the intensity of the
nonconformance without any oversight by the City of Ames. [Ames
2304]’s initial position is that it could remodel the existing structure
to add 50 occupants and the [Board] could not prevent such a
remodeling as long as the building’s interior dimensions did not
change.
The ordinance concerning nonconforming uses states the following as its purpose:
It is the general policy of the City to allow uses, structures and
lots that came into existence legally, in conformance with then-
applicable requirements, to continue to exist and be put to productive
use, but to mitigate adverse impact on conforming uses in the
vicinity. This Section establishes regulations governing uses,
structures and lots that were lawfully established but that do not
conform to one or more existing requirements of this Ordinance. The
regulations of this Section are intended to:
(i) Recognize the interests of property owners in continuing to
use their property;
(ii) Promote reuse and rehabilitation of existing buildings; and
(iii) Place reasonable limits on the expansion of
nonconformities that have the potential to adversely affect
surrounding properties and the community as a whole.
Id. § 29.307(1)(a). The purpose set forth in section 29.307(1)(a)(iii)—limiting the
expansion of nonconforming uses, structures, and lots that have the potential to
adversely affect the area and community—aligns with a prohibition of increases in
intensity in the context of nonconforming residential uses. Therefore, we agree
with the district court that remodeling of a nonconforming use, residential or not, is
subject to the application of the section 29.307(2)(a) prohibition against increasing
the intensity of the nonconforming use.
We move on to the argument Ames 2304 did not make to the district court:
that the “increase in intensity” prohibition does not apply to its remodel based on
the definition of “intensity” set forth in the ordinance. Article 2 of the Ames
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Municipal Code pertains to rules of construction and definitions. See Ames, Iowa
Mun. Code §§ 29.200-29.201. Specifically, it supplies definitions for various
ordinance terms. See id. § 29.201. It defines intensity to mean “the degree or
level of concentration to which land is used for commercial, industrial or any other
nonresidential purpose.” See id. § 29.201(109). Apartment buildings are classified
as residential use.5 See id. § 29.501(4), tbl. 29.501(4)-1. Because the “intensity”
definition concerns only nonresidential purposes, Ames 2304 argues the Board
acted illegally in denying its request for a permit for interior remodel of its apartment
building—a residential use. The argument is not without merit. The ordinance’s
“intensity” definition specifically applies to “commercial, industrial, and other
nonresidential purpose[s].” See id. § 29.201(109) (emphasis added). Residential
uses are not mentioned. “[L]egislative intent is expressed by omission as well as
by inclusion, and the express mention of one thing implies the exclusion of others
not so mentioned.” Homan v. Branstad, 887 N.W.2d 153, 166 (Iowa 2016) (quoting
Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995). It would thus appear that the
section 29.201(109) definition of “intensity,” is not applicable to nonconforming use
residential remodels. But that does not end the matter.
Having decided the ordinance’s prohibition against increases in intensity of
nonconforming uses is applicable to the proposed remodel, and that the section
29.201(109) “intensity” definition is not applicable to residential uses, we must look
for a definition elsewhere. The logical place is to first look at other provisions of
5
Apartment dwellings containing twelve or less units belong in Residential Medium
Density (RM) zones. See Ames, Iowa Mun. Code § 29.702, tbl. 29.702(2). “Apartment
dwelling means a dwelling containing three or more residential units.” Id. § 29.201(14).
15
ordinance. We found only one instance where “intensity” is tied to residential uses.
Section 29.307(3)(c), concerning restoration of damaged nonconforming
structures, provides that any nonconforming structure damaged by natural disaster
to the extent of 70% of its assessed value may be rebuilt “provided such rebuilding
does not increase the intensity of use, as determined by the number of dwelling
units (for residences).” Although “intensity,” as applied to residential uses in the
context of the general purposes of the nonconformities section of the ordinance,
could well be tied to the number of bedrooms, number of occupants, number of
required off-street parking spaces, or other factors, the ordinance does not do so.
Instead, at least in the one instance we could find, the ordinance ties “intensity” to
just the number of dwelling units. We therefore conclude the section 29.307(2)(a)
prohibition of increases in intensity, as applied to residential uses, is tied only to
an increase in the number of dwelling units. If it was intended that increase in
intensity be tied to other factors, such as increase in number of bedrooms, increase
in number of occupants, or increase in number of required off-street parking
spaces, the ordinance could well have been so drafted.
The proposed remodel does not increase the number of dwelling units.
Under our interpretation of the ordinance, the proposed remodel does not violate
the ordinance’s prohibition against an increase in intensity of the nonconforming
use. The Board erroneously concluded otherwise. It follows that substantial
evidence does not support the Board’s findings and the Board acted illegally in
denying the permit on the basis the proposed remodel would increase the intensity
of the nonconforming use.
16
IV. Conclusion.
The Board correctly determined the ordinance concerning nonconforming
uses prohibits it from approving a permit for an interior remodel that increases the
intensity of the nonconforming use. But, in relying on its erroneous interpretation
of section 29.307(2)(a), the Board acted illegally in denying Ames 2304 a permit
for its proposed interior remodel. We therefore reverse the judgment of the district
court. We remand to the district court for entry of an order sustaining the writ of
certiorari.
REVERSED AND REMANDED.