Posted by: Patricia Salkin | November 8, 2020

IA Appeals Court Dismisses Due Process Claim in Case Involving Illegally Stored Materials

This post was authored by Matthew Loescher, Esq.

David Stuart and his company, Jade Engineering, L.L.C., owned two historical duplexes in Dubuque. After inspecting those properties, a city zoning enforcement officer mailed Stuart a notice of violations for illegally storing materials. Stuart challenged that notice before the city’s zoning board of adjustment and then petitioned for writ of certiorari in the district court – both of which ruled in favor of the city.

On appeal, Stuart argued that the board’s failure to follow a city ordinance describing how to conduct hearings “constitutes an illegality,” and deprived him of due process. He further claimed the board did not “allow him to cross examine city witnesses” or “rebut or impeach a number of statements made by city personnel.” Despite this contention, Stuart acknowledged he was represented by counsel at the meeting, and that the board allowed him to speak and present material. Here, the record demonstrated that Stuart had the chance to challenge the city’s position even without the formality of cross-examination. Additionally, the court found Stuart failed to explain how compliance with the “oath or affirmation” requirement for oral evidence would have enhanced his case. As such, the court affirmed the district court’s holding that Stuart’s petition failed to allege a cognizable claim that the process provided to him did not satisfy procedural due process.

Stuart next argued the board acted “arbitrarily and illegally” in failing to “make written findings and conclusions,” per its own procedure. The minutes reflected that the board’s “decision should be based simply on the code language outlined in the UDC and in the Notice of Violation that was issued” to Stuart. Furthermore, the minutes stated that the board voted to affirm the zoning officer’s interpretation that “storage of construction materials, old furniture, antiques, and other miscellaneous materials not accessory to a residential use, is not permitted in residential districts, including the properties at 1589 and 1591 Bluff Street, and is a violation of Section 16–5–6.1.” Based on the aforementioned, the court found that the board’s findings were sufficient to allow a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.

Stuart v City of Dubuque Zoning Board of Adjustment, 2020 WL 6484041 (IA App. 11/4/2020)


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