Posted by: Patricia Salkin | May 26, 2017

IA Appeals Court Finds Appeal from Decision of the City Board of Adjustment Regarding a Variance was Untimely and that Board Attorney Did Not Have to be Disqualified

In 2014, McCleary filed an appeal with the Board seeking various zoning variances and permits related to attempt to operate a pet boarding business out of his home. The Board issued its decision denying McCleary’s requests, and McCleary filed a petition for a writ of certiorari, which sought to overturn the Board’s decision on various grounds, including federal constitutional claims. The case was then removed to federal court. In this case, Jaysen McCleary appealed the district court’s dismissal of his writ of certiorari claiming the writ was timely filed, some of his claims survived the dismissal, and the attorney for the City of Des Moines Zoning Board of Adjustment should have been disqualified.

On appeal, McCleary first claimed the district court erred in dismissing his petition for being untimely because the deadline for him to file his appeal did not begin to run until he received actual notice of the Board’s final decision. As applicable to this case, Iowa Code section 414.15 (2014) establishes the right to appeal a decision from a zoning board and provides “such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.” Here, McCleary filed his appeal more than thirty days after the decision of the Board had been filed. Accordingly, the court held his appeal was not timely, and the district court did not have jurisdiction to hear it. Moreover, while section 414.15 referred to writs of certiorari as the method of appealing a zoning board’s decision, the court found that the timeliness requirements were not altered by the choice of a different course for relief, such as a petition for declaratory relief.

Lastly, McCleary claimed the Board’s attorney should have been disqualified because he had previously represented McCleary in another matter. The court found that the nature of the present action was unrelated to the Board’s attorney’s prior representation of McCleary. The prior representation involved the purchase of a business, while this suit involved a zoning dispute between the Board and McCleary. Despite the fact that the Board’s attorney probably had access to some confidential information while assisting McCleary with a potential business purchase, the court found that it was unclear how any of that information would be relevant to McCleary’s request for a zoning variance. As such, the court concluded the district court did not abuse its discretion in refusing to disqualify the Board’s attorney.

McCleary v City of Des Moines Zoning Board of Adjustment, 2017WL 1400870 (IA App. 4/19/2017)


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