Posted by: Patricia Salkin | May 28, 2018

IA Supreme Court Holds Thirty-Day Period to Petition for Writ of Certiorari Challenging Decision of Zoning Board is Triggered When the Board Posts Its Decision on Its Public Website

This post was authored by Matthew Loeser, Esq.

In 2014, the Board of Adjustment granted Tiny Tots Learning Center a permit to operate. Tiny Tots closed, and the property was vacant from December 2014 to July 2016. In July 2016, Mz. Annie-Ru Daycare Center, a new lessee of the premises, opened a daycare at the same location. Annie-Ru supervised more children and was open for longer hours than Tiny Tots. Regardless of this, the Davenport Zoning Administrator determined the special use permit issued to Tiny Tots “runs with the land.” A nearby resident, Kenneth Burroughs, and several other residents appealed the Zoning Administrator’s decision to the Board of Adjustment. The Board of Adjustment upheld the City staff’s recommendation. Burroughs and other nearby residents then filed a petition to revoke Annie-Ru’s special use permit, and the Board of Adjustment unanimously voted against revoking the special use permit. Burroughs filed a petition for writ of certiorari in the Iowa District Court for Scott County challenging the Board of Adjustment’s decisions. The court denied the petition, concluding that the “thirty day time period begins to run from the time the appealing party has either actual knowledge or is chargeable with knowledge of the decision to be appealed.”

At the outset, the court noted that Iowa Code section 414.15 provides that a petition for certiorari seeking review of a board of adjustment decision “shall be presented to the court within thirty days after the filing of the decision in the office of the board.” The court then determined that a document has been filed in the “office of the board” when it has been posted on the board’s publicly available website that the board uses as a repository for official documents. Here the plaintiffs sought certiorari review of the Board’s: recognition of Annie-Ru’s special use permit; and refusal to revoke that permit. The first action occurred at an October 13, 2016 Board meeting, and the second action occurred at a December 8, 2016 Board meeting. The plaintiffs did not file suit until January 25, 2017. As such, the court found that the challenge to the refusal to revoke the permit was timely because the unapproved minutes of the December 8, 2016 meeting, posted to the Board’s website on December 19, did not amount to “the filing of the decision.” Nevertheless, the plaintiffs did not contest that the minutes of the October 13 Board meeting had been posted, that they had been approved, and that the approval had been posted on the Board’s website more than thirty days before the plaintiffs went to court. The court therefore held that portion of plaintiffs’ challenge untimely.

Burroughs v City of Davenport Zoning Board of Adjustment, 2018 WL 2372570 (IA 5/25/2018)

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