IN THE SUPREME COURT OF IOWA
No. 17–1149
Filed March 8, 2019
AMES 2304, LLC,
Appellant,
vs.
CITY OF AMES, ZONING BOARD OF ADJUSTMENT,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Story County, Michael J.
Moon, Judge.
The City of Ames’s Zoning Board of Adjustment seeks further review
of a court of appeals decision sustaining Ames 2304’s writ of certiorari
regarding the legality of the Board’s denial of Ames 2304’s permit for a
proposed interior remodel. WRIT SUSTAINED.
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.
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CHRISTENSEN, Justice.
Ames 2304, LLC (Ames 2304) filed a petition for writ of certiorari
after the City of Ames’s Zoning Board of Adjustment (ZBA) denied Ames
2304’s permit for an interior remodel of a nonconforming use residential
structure. The proposed remodel would increase the number of bedrooms
while maintaining the same number of apartment dwelling units, and the
ZBA determined the zoning ordinance prohibited this increase in
bedrooms because it would increase the intensity of the nonconforming
use. The district court annulled the writ, and the court of appeals reversed
the district court ruling on appeal. The ZBA sought further review.
On our review, we conclude the zoning ordinance defines an
“increase in intensity” as an increase in the number of dwelling units.
Consequently, the ZBA erred in denying Ames 2304’s interior remodeling
permit because the remodel would not increase the number of dwelling
units in the structure. Therefore, we affirm the court of appeals’ decision,
reverse the judgment of the district court, and remand to the district court
for entry of an order sustaining the writ of certiorari.
I. Background Facts and Proceedings.
Ames 2304 owns the property located at 2304 Knapp Street in Ames,
Iowa. The property was originally built as a single-family structure in
1910, and it was converted to its current four one-bedroom apartment
units in 1928. Two apartment units occupy each floor in the two-story
home. The property is zoned low density residential according to the City
of Ames (the City) Municipal Code, which permits only single-family
detached residential dwellings with one dwelling per lot. However, the
property was grandfathered in as a legal nonconforming use and has been
operating as one since the four-unit apartments were established prior to
the City’s current zoning ordinance.
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In April 2016, Ames 2304 sought a building permit to remodel the
property’s interior. 1 Under the proposal, the first floor would transform
from two one-bedroom units into one studio unit and one two-bedroom
unit. Additionally, Ames 2304 would convert the two one-bedroom units
on the second floor into one studio unit and one three-bedroom unit. In
total, Ames 2304 seeks to increase the number of bedrooms from four to
seven while maintaining the same number of apartments after the
remodel. 2 A zoning enforcement officer for the City’s ZBA denied Ames
2304’s building permit on April 19, noting the proposed remodel was not
permitted because the increase in the number of bedrooms constituted a
prohibited increase in the intensity of the nonconforming use. The zoning
enforcement officer informed Ames 2304 that the permit for the proposed
remodel could not “be issued until the remodel reduces the number of
bedrooms for the property to not exceed the allowed four units and four
total bedrooms for the site.”
Ames 2304 filed a timely appeal to the ZBA. The ZBA held a hearing
on June 22 and affirmed the zoning enforcement officer’s decision to deny
the permit by a vote of three to one. In its written decision, the ZBA noted
that “the addition of bedrooms has been in the past and is still considered
to be an intensification of such use.” Additionally, it concluded the change
in the number of bedrooms in the units “intensifies the site requirements
1The City’s Municipal Code states,
No Building/Zoning Permit shall be issued by the Building Official for any
building, building addition, structure, or structural alteration, and no
building or structure shall be erected, added to, or structurally altered,
and no change of use shall be permitted or established unless and until
the Zoning Enforcement Officer certifies that such building structure or
use is in conformity with this Ordinance or is a valid nonconforming use.
Ames, Iowa, Municipal Code § 29.1501(1)(a) (2017).
2TheCity noted throughout the proceedings that it considers studio units to have
one bedroom.
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for the property requiring that additional parking be provided.” The ZBA
determined the City’s zoning ordinance “does not allow increases in
intensity for non-conforming structures undergoing internal remodeling.”
Ames 2304 filed a petition for writ of certiorari on August 23. The
district court conducted a trial on June 14, 2017, in which Ames 2304
presented two arguments in support of its request for the district court to
reverse the ZBA’s decision. First, Ames 2304 argued the ZBA improperly
interpreted section 29.307(2)(a)(ii) of the City of Ames Municipal Code.
Second, Ames 2304 claimed the facts failed to support the ZBA’s finding
that the proposed remodel would increase the intensity of the property’s
nonconforming use. The district court rejected these arguments and
annulled the writ of certiorari.
Ames 2304 filed a notice of appeal to our court on July 14, and we
transferred the case to the court of appeals. On appeal, Ames 2304 argued
(1) the ZBA acted illegally in denying Ames 2304’s permit for the proposed
interior remodel and (2) substantial evidence did not support the ZBA’s
determination that the proposed interior remodel would increase the
intensity. The court of appeals concluded the intensity of the property’s
use is tied to the number of dwelling units. Thus, since Ames 2304 is not
increasing the number of dwelling units in the property, the court of
appeals determined the proposed remodel does not violate the City’s
prohibition against an increase in the intensity of the nonconforming use.
Based on this interpretation of the City’s Municipal Code, the court of
appeals also concluded the ZBA’s findings were not supported by
substantial evidence and the ZBA acted illegally in denying Ames 2304’s
permit for the proposed remodel. The ZBA sought further review, which
we granted.
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II. Standard of Review.
We “review an original certiorari action for the correction of errors at
law.” Vance v. Iowa Dist. Ct., 907 N.W.2d 473, 476 (Iowa 2018). A party
may present a certiorari action “when authorized by a statute or when an
‘inferior tribunal, board, or officer’ exceeded its jurisdiction or otherwise
acted illegally in executing judicial functions.” Bowman v. City of Des
Moines Mun. Hous. Agency, 805 N.W.2d 790, 796 (Iowa 2011) (quoting
Iowa R. Civ. P. 1.1401). “An inferior tribunal commits an illegality if the
decision violates a statute, is not supported by substantial evidence, or is
unreasonable, arbitrary, or capricious.” Id. “Evidence is considered
substantial when reasonable minds could accept it as adequate to reach a
conclusion.” Vance, 907 N.W.2d at 476 (quoting State v. Garrity, 765
N.W.2d 592, 595 (Iowa 2009)). We are bound by the findings in the record
if there is substantial evidence to support the inferior tribunal’s decision.
Bowman, 805 N.W.2d at 796. Finally, “we give deference to the board of
adjustment’s interpretation of its city’s zoning ordinances,” but the “final
construction and interpretation of zoning ordinances is a question of law
for us to decide.” Lauridsen v. Okoboji Bd. of Adjustment, 554 N.W.2d 541,
543 (Iowa 1996).
III. Analysis.
The ZBA maintains the district court correctly determined the ZBA
acted legally and had substantial evidence to support its findings of fact.
However, before we can address the merits of the zoning challenge, we
must first address the ZBA’s error preservation claim. The ZBA argues
Ames 2304 failed to preserve error for our court’s review on its claim that
the prohibition on increases in intensity does not apply to residential
properties under the City ordinance’s definition of “intensity” because it
never raised this claim before the ZBA or district court.
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A. Error Preservation. According to the ZBA, Ames 2304 only
partially preserved error on its claim that the ZBA acted illegally. The ZBA
concedes Ames 2304 preserved error on its argument that the ZBA
improperly interpreted City of Ames Municipal Code section 29.307(2)(a)(ii)
as permissive rather than mandatory. However, the ZBA contends Ames
2304 failed to preserve error on its argument that the City ordinance’s
definition of “intensity” does not apply to residential use because Ames
2304 never raised it until Ames 2304 appealed the district court decision.
The court of appeals concluded Ames 2304 preserved error on all of its
arguments, noting Ames 2304 was merely providing an additional theory
of statutory interpretation on appeal when it raised its claim regarding the
definition of “intensity” instead of advancing a new argument altogether.
We agree that Ames 2304 preserved error.
The parties have consistently disputed the interpretation of the
City’s Municipal Code in their argument over whether an increase in
bedrooms is an increase in the intensity of a nonconforming use under the
City’s Municipal Code. Ames 2304 has maintained the Municipal Code’s
language governing increases in intensity was inapplicable to its
remodeling permit request and no increase in intensity would occur under
its proposed remodel. Before the district court, Ames 2304 stated its
“proposed interior remodeling does not increase the intensity of any
nonconforming use.” The district court concluded that “[t]he Ames ZBA
correctly interpreted the requirements of Section 29.307(2)(a) as
prohibiting an increase in the intensity of a nonconformity through a
remodeling project.” On appeal, Ames 2304 continues to declare that
“[t]he proposed interior-remodeling plan was not an increase in intensity.”
While it is true Ames 2304 did not specifically refer to the definition
of “intensity” under the Municipal Code before the district court, the issue
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of whether the increase in bedrooms constitutes an increase in intensity
of a nonconforming use under the Municipal Code was briefed by both
sides and raised before the ZBA. See State v. Christensen, No. 09–1457,
2010 WL 5276884, at *2 (Iowa Dec. 17, 2010) (per curiam) (“That a party
fails 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.”). Ames 2304’s reliance on the Municipal Code’s definition of
“intensity” on appeal is simply “additional ammunition for the same
argument [it] made below—not a new argument advanced on appeal.” JBS
Swift & Co. v. Ochoa, 888 N.W.2d 887, 893 (Iowa 2016). In concluding
that Ames 2304 preserved error, it is also important to note this case turns
on statutory interpretation. Our court must consider a statute or
ordinance “in its entirety [and] not just [through] isolated words or
phrases.” State v. Romer, 832 N.W.2d 169, 176 (Iowa 2013) (quoting In re
Estate of Bockwoldt, 814 N.W.2d 215, 223 (Iowa 2012)). Since this case
turns on our interpretation of the City’s Municipal Code, we must properly
consider the Code as a whole—including other references to the term
“intensity” in the City’s zoning chapter of the Code. For these reasons, we
hold Ames 2304 properly preserved error on all of its arguments.
B. The Scope of the Challenged Ordinance. The parties agree the
property at issue has been operating as a legal nonconforming use, but
they dispute whether Ames 2304’s proposed interior remodel is a
prohibited increase in the intensity of the property’s nonconforming use.
A nonconforming use is a use “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 Des Moines v. Ogden, 909 N.W.2d
417, 423 (Iowa 2018) (quoting City of Okoboji v. Okoboji Barz, Inc., 746
8
N.W.2d 56, 60 (Iowa 2008)). Since a nonconforming use was lawfully in
existence at the time a zoning ordinance was enacted or changed, there is
“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. at 423–24.
These limitations on the nonconforming use of property are
expressed within the City of Ames Municipal Code, which states in relevant
part,
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 by the Zoning Board of Adjustment, pursuant to
the procedures of Section 29.1503, excluding
29.1503(4)(b)(vii) of the Review Criteria General Standards,
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 or 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 pursuant to Section 29.1503, but rather
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shall be construed as a request for a variance, subject to the
procedures of Section 29.1504.
(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, Municipal Code § 29.307(2)(a) (2012). The ZBA claims
subsection (ii) governing “Exterior or Interior Remodeling or Improvements
to Structure” incorporated subsection (i)’s prohibition on increases in
intensity of the nonconforming use, so “the ordinance does not allow
increases in intensity for nonconforming structures undergoing internal
remodeling.” Based on this interpretation, the ZBA argues it was
appropriate to deny Ames 2304’s remodeling permit because an increase
from four to seven bedrooms and the additional parking required due to
the increase in bedrooms constitutes a prohibited increase in intensity of
the nonconforming use.
We apply our general rules of statutory construction to interpret an
ambiguous ordinance. City of Okoboji v. Okoboji Barz, Inc., 717 N.W.2d
310, 314 (Iowa 2006). An ordinance is ambiguous “if reasonable persons
can disagree” on its meaning. Id. “An ambiguity may arise from the
meaning of particular words or from the general scope and meaning of a
statute in its totality.” Id. In this case, the ZBA concedes section 29.307(2)
is ambiguous, and we agree given the conflicting rulings in this case.
Thus, we must apply our general rules of statutory construction. Id.
Our goal in interpreting a statute is to determine legislative intent.
Id. In doing so, we examine the words the legislature chose in the
ordinance rather than pondering what the legislature “should or might
have said.” Id. (quoting Auen v. Alcoholic Beverages Div., 679 N.W.2d 586,
590 (Iowa 2004)). Unless the ordinance defines a word or uses a word with
10
an established legal meaning, we give the words in the ordinance their
“ordinary and common meaning by considering the context within which
they are used.” Id. (quoting Auen, 679 N.W.2d at 590). We also consider
the ordinance in its entirety to give it its “natural and intended meaning.”
Id.
To determine whether Ames 2304’s proposed increase in the number
of bedrooms constitutes a prohibited increase in the intensity of the
nonconforming use, we first must determine whether section
29.307(2)(a)(i), which governs the enlargement of a nonconforming use,
applies to the interior remodeling discussed in section 29.307(2)(a)(ii) of
the Municipal Code. The relevant portion of section 29.307(2)(a)(i) states,
“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, Municipal Code
§ 29.307(2)(a)(i)(a) (emphasis added). Section 29.307(2)(a)(ii) provides in
relevant part, “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). Thus,
Ames 2304 contends, the City must permit Ames 2304’s interior
remodeling permit because the remodel does not change the structure’s
size. This proposed interpretation appears to focus solely on the first part
of section 29.307(2)(a)(ii) and ignores the restrictions after the word
“provided.” Nevertheless, this proposed interpretation is nonsensical
when read in the greater context of the City’s zoning code.
As the district court noted, under this interpretation, Ames 2304
“could remodel the existing structure to add 50 occupants and the Ames
ZBA could not prevent such a remodeling as long as the building’s interior
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dimensions did not change.” This result contravenes the City’s purpose of
its ordinance governing nonconformities, which states,
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 the 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). In light of the City’s purpose to reasonably limit property
owners from expanding nonconformities that could potentially adversely
impact the surrounding area and greater community, we cannot imagine
the City intended to give property owners the ability to increase the
intensity of the nonconformance carte blanche so long as the property
owners did not alter the building’s interior dimensions. See Brakke v. Iowa
Dep’t of Nat. Res., 897 N.W.2d 522, 537 (Iowa 2017) (“It is universally
accepted that where statutory terms are ambiguous, courts should
interpret the statute in a reasonable fashion to avoid absurd results.”).
Consequently, we agree with the ZBA and lower courts that section
29.307(2)(a)(ii)’s reference to section 29.307(2)(a)(i) incorporates section
29.307(2)(a)(i)’s prohibition on increases in the intensity of a
nonconforming use. However, this does not end our analysis, as we must
determine whether Ames 2304’s proposed interior remodel constitutes an
increase in intensity under section 29.307(2).
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C. The Intensity of a Nonconforming Use. The City zoning 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, Municipal Code § 29.201(109) (2017). Yet, the ordinance does
not define “intensity” concerning residential purposes, which is how Ames
2304 uses its structure. 3 According to Ames 2304, this renders “intensity”
inapplicable to a residential use, so a residential use like Ames 2304’s
apartment building can never increase in intensity under the ordinance.
This reading of the zoning code is inappropriate for a couple reasons.
First, the ordinance governing nonconforming uses refers to structures in
general and does not distinguish between residential and nonresidential
structures that are nonconforming. See Ames, Iowa, Municipal Code
§ 29.307. To apply Ames 2304’s proposed interpretation, we would have
to read a distinction into the ordinance that does not exist. “[W]e may not
read language into the [ordinance] that is not evident from the language
the legislature has chosen.” Jahnke v. Deere & Co., 912 N.W.2d 136, 143
(Iowa 2018). Second, this interpretation would create absurd results, as
it would lead to virtually no regulation of nonconforming uses for
residential purposes that could allow a property owner to expand his or
her residential nonconforming use to include an unlimited number of
bedrooms and residents so long as there are five or less unrelated persons
living in each residential unit. See Ames, Iowa, Municipal Code
§ 29.201(14) (“Apartment dwellings may be occupied by families only, or
by a group of unrelated persons limited to five or less per residential
unit.”); see also Brakke, 897 N.W.2d at 534 (“[C]ourts should interpret the
3Ames 2304 is considered an apartment dwelling because it contains more than
three residential units. Ames, Iowa, Municipal Code § 29.201(14). An apartment dwelling
is considered residential under the City’s zoning code if it has twelve units or less. Id.
§ 29.702, tbl. 29.702(2) (2017).
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statute in a reasonable fashion to avoid absurd results.”). For these
reasons, the ordinance’s prohibition against increases in intensity of
nonconforming uses is applicable to residential structures. Therefore, we
must determine the definition of “intensity” in order to analyze whether
Ames 2304’s proposed interior remodel constitutes an increase in intensity
under the ordinance.
Though section 29.307(2) does not define “intensity,” our
examination of section 29.307 as a whole gives us a clue as to the meaning
of intensity concerning residential structures that operate as a
nonconforming use. See State v. Iowa Dist. Ct., 889 N.W.2d 467, 473 (Iowa
2017) (noting other parts of a statute may inform the court’s resolution of
a statutory ambiguity). Section 29.307(3)(c) governs the restoration of a
damaged nonconforming structure and allows property owners to rebuild
a nonconforming structure damaged by natural disaster to the extent of
70% or less of its assessed value, “provided such rebuilding does not
increase the intensity of use, as determined by the number of dwelling units
(for residences).” Ames, Iowa, Municipal Code § 29.307(3)(c) (emphasis
added). Thus, section 29.307(3)(c) connects the intensity of a residential
nonconforming use to the number of dwelling units, and we interpret
section 29.307(2)(a)’s prohibition on increases in intensity to provide
“intensity” with the same connection to the number of dwelling units.
Since Ames 2304’s proposed interior remodel does not increase the
number of dwelling units in the structure, we affirm the decision of the
court of appeals and reverse the district court judgment. There was not
substantial evidence to support the ZBA’s findings, and it was erroneous
for the ZBA to deny Ames 2304’s permit on the basis that the remodel
would increase the intensity of the nonconforming use.
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IV. Conclusion.
For the aforementioned reasons, we affirm the court of appeals
decision, reverse the judgment of the district court, and remand to the
district court for entry of an order sustaining the writ of certiorari.
WRIT SUSTAINED.
All justices concur except McDonald, J., who takes no part.