                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0784
                               Filed June 19, 2019


JOHN BARTON GOPLERUD, LESLIE CLEMENSON, LYLE HALE, and
DOROTHY HALE,
    Plaintiffs-Appellants,

vs.

DALLAS COUNTY, IOWA, DALLAS COUNTY BOARD OF ADJUSTMENT, and
NAPA VALLEY OWNERS ASSOCIATION,
     Defendants-Appellees.
________________________________________________________________

      Appeal from the Iowa District Court for Dallas County, Dustria A. Relph,

Judge.



      Plaintiffs appeal the district court decision dismissing their petition for writ
of certiorari challenging the decision of the Dallas County Board of Adjustment
finding they were in violation of zoning ordinances and their claim against the Napa
Valley Owners Association for tortious interference with their property rights.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


      J. Barton Goplerud of Shindler, Anderson, Goplerud & Weese, PC, West
Des Moines, and Leslie Clemenson of Clemenson Law Firm, PLC, Adel, for
appellants.
      Hugh J. Cain, Brent L. Hinders, and Eric M. Updegraff of Hopkins &
Huebner, P.C., Des Moines, for appellees Dallas County, Iowa and Dallas County
Board of Adjustment.
      Joseph F. Moser and Robert L. Johnson of Finley Law Firm, P.C., Des
Moines, for appellee Napa Valley Owners Association.


      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                            2


BOWER, Judge.

       Plaintiffs appeal the district court decision dismissing their petition for writ

of certiorari challenging the decision of the Dallas County Board of Adjustment

(Board) finding they were in violation of zoning ordinances and their claim against

the Napa Valley Owners Association (NVOA) for tortious interference with their

property rights. We determine the district court erred by dismissing the petition for

writ of certiorari based on its finding plaintiffs had not shown they were aggrieved

by the Board’s decision.       We reverse on this issue and remand for further

proceedings. We conclude the district court did not err in granting the motion to

dismiss filed by the NVOA for failure to state a claim upon which relief may be

granted, and affirm the court’s ruling on this issue.

       I.      Background Facts & Proceedings

       John Goplerud and Leslie Clemenson (Gopleruds) own a house in the Napa

Valley Estates housing division in Dallas County, Iowa. On May 20, 2014, the

Gopleruds filed an application with the Dallas County Department of Planning and

Development (Department) for a building permit for a combined carriage house

and garage on their property. The Department issued a building permit. During

the construction process they obtained subcontractor permits and passed building

inspections as required by the Department. A Certificate of Zoning Compliance

and Occupancy Permit was issued by the Department on February 13, 2015.

Clemenson’s parents, Lyle and Dotti Hale, moved into the carriage house.1




1
  The lower level of the building is a garage for vehicles. The upper level of the building
has living quarters.
                                         3


      The Gopleruds were subsequently sued by the NVOA, who claimed the

occupied carriage house did not meet the restrictive covenants of the homeowners

association.2 While the suit was pending, the NVOA contacted the Department,

stating the NVOA believed the Gopleruds were in violation of Dallas County zoning

ordinances, as two single-family residences on one lot were not permitted in the

R-2 Zoning District where the house was located.

      The Department issued a notice of violation to the Gopleruds on

January 10, 2017, which stated they were in violation of Dallas County ordinances

and the violation must be abated by March 10, 2017. The notice stated:

             Failure to correct/abate the violation within the above time
      frame will result in further action by the county, including prosecution
      as a simple misdemeanor punishable by a fine or imprisonment, or
      the issuance of a civil citation and assessment of a fine. Each day
      that you are determined to be in violation constitutes a separate
      offence.

In order to abate the violation, the Gopleruds were informed they needed to

(1) cease and desist using the building as a residence, (2) modify the building to

comply with the occupancy permit, and (3) use the building in compliance with

zoning regulations.

      The Gopleruds appealed the Notice of Violation to the Board. After a

hearing, the Board issued a decision on June 20, 2017, finding:

              Based on the evidence presented at the public hearing, the
      Board finds that the accessory building that Goplerud/Clemenson
      built is clearly a single family dwelling that does not meet the
      definition of an accessory building because more than 51% of the
      total square footage of the building is for residential use and not
      storage, and because the evidence shows that the building is used


2
 This matter is presently pending on appeal in Napa Valley Owners Ass’n v. Goplerud,
No. 18-0918.
                                          4


       as the primary residence for the parents of Clemenson, in violation
       of the ordinance.

The Board upheld the Notice of Violation.

       The Gopleruds and Hales (plaintiffs) filed a petition for writ of certiorari,

request for a stay or restraining order, and request for declaratory relief against

Dallas County, the Board, and the NVOA. They stated the Board improperly

considered ex parte evidence, violated the Iowa Open Meetings Law, and the

proceedings constituted an untimely appeal of the building permit. The plaintiffs

also claimed the Board’s decision was not supported by the evidence, was

arbitrary and capricious, and was an appropriation of the Gopleruds’ property

without due process of law. The petition claimed the NVOA engaged in tortious

interference with the Gopleruds’ use of their property by contacting the Department

on several occasions, requesting a decision finding the Gopleruds were in violation

of Dallas County ordinances.       Additionally, the plaintiffs requested a stay or

restraining order preventing the Board from attempting to seek criminal or civil

penalties as set out in the Notice of Violation.

       Dallas County filed a pre-answer motion to dismiss, claiming the Board’s

decision was not a final decision on the issue of whether the Gopleruds violated

Dallas County ordinances. It pointed out the alleged infractions had not been

submitted to a court and the Gopleruds had not yet been subjected to any

sanctions. Dallas County claimed the Notice of Violation was in the nature of a

warning. The NVOA joined in the pre-answer motion to dismiss. After a hearing,

the district court denied the pre-answer motions to dismiss, finding, “[T]he

Petitioners are aggrieved by the Board of Adjustment’s decision to agree with the
                                           5


Department’s decision to issue a Notice of Violations concerning a county zoning

matter. Therefore, Plaintiffs are authorized by Iowa Code § 335.18 [(2017)] to

present the present Petition to the court.”

       The NVOA additionally filed a separate motion to dismiss, claiming the

Gopleruds’ petition failed to state a claim upon which relief may be granted in their

assertions against the NVOA. The district court granted NVOA’s motion to dismiss

the claims of tortious interference against it.

       A hearing was held on whether the court should issue the writ of certiorari.

See Iowa R. Civ. P. 1.1406. Dallas County stated, “We agree that this petition is

sufficient and you should issue a writ of certiorari against the Dallas County Board

of Adjustment for purposes of making a record return.” The court noted the petition

stated the Hales “have been injured in a manner special to them.” The court then

stated:

               There is no other allegation, no evidence in the petition to
       support a finding that the plaintiffs have been aggrieved or that there
       is any specific and injurious effect that the plaintiffs have suffered as
       a result of essentially the Board of Adjustment’s findings and
       agreement with the director’s decision to issue a notice of violation.
               Certainly, as we know, no effort has been made by the County
       or the Board to enforce the notice. There’s not been any judicial
       determination that an actual violation has occurred, that the
       petitioners have even violated an ordinance, and there’s not been
       any evidence or any allegation or any claim that the petitioners have
       suffered any injurious effect in an attempt to cure the alleged
       violation.
               So based upon those things, I believe that the petition is
       insufficient and should be dismissed.

       The court entered a written decision on April 13, 2018, stating:

              Based upon the contents of the Petition and the record made
       on this date, the Court finds that the Petitioners have failed to allege
       the [Board’s] decision has resulted in any specific and injurious effect
       on their interest in [the] subject matter of the [Board’s] decision as
                                          6


       required by Iowa Code section 335.18 and as defined in Iowa law.
       See Chrischelles v. Arnolds Park [Zoning Bd. of Adjustment], 505
       N.W.2d 491, 494 (Iowa 1993) (requiring a petitioner in an action for
       writ of certiorari to provide evidence of “(1) a specific personal and
       legal interest in the subject matter of the agency decision and (2) a
       specific and injurious effect on this interest by the decision”).

The court dismissed the petition for writ of certiorari. Plaintiffs now appeal.

       II.    Standard of Review

       A party “aggrieved” by a decision of a county board of adjustment may file

a petition for writ of certiorari claiming the board’s decision is illegal. See Iowa

Code §§ 335.18, .19. The matter is tried de novo by the court. Id. § 335.21. As

used in section 335.21, the term “de novo” “does not bear its equitable

connotation.” Martin Marietta Materials, Inc. v. Dallas Cty., 675 N.W.2d 544, 551

(Iowa 2004). “It authorizes the taking of additional testimony, but only for the

submission and consideration of those questions of illegality raised by the statutory

petition for writ of certiorari.” Id. (quoting Trailer City, Inc. v. Bd. of Adjustment,

218 N.W.2d 645, 647 (Iowa 1974)). The district court makes its own factual

findings, but does not decide the case anew. Id. Plaintiffs have the burden to

show the Board’s decision was illegal. See Iowa Code § 335.18.

       Our role on appeal has been set out by the supreme court, “Our review on

appeal of the district court’s decision is at law. We are therefore bound by the

district court’s findings if supported by substantial evidence. But we are not bound

by erroneous legal rulings that materially affect the court’s decision.”          Martin

Marietta Materials, 675 N.W.2d at 551 (citing Baker v. Bd. of Adjustment, 671

N.W.2d 405, 414 (Iowa 2003)).
                                           7


       III.   Writ of Certiorari

       Under section 335.18, a person “aggrieved by any decision of the board of

adjustment” may file a petition for writ of certiorari “setting forth that such decision

is illegal, in whole or in part, specifying the grounds of the illegality.” Iowa Code

§ 335.18. Iowa Rule of Civil Procedure 1.1406 provides the court may hold a

hearing prior to issuing the writ. “Any hearing shall be confined to the sufficiency

of the petition, what records or proceedings shall be certified, and the terms of any

bond to be given.” Iowa R. Civ. P. 1.1406. At this stage, “[w]e are confronted only

with the question whether certiorari will lie in the pleaded circumstances.” Hoefer

v. Sioux City Cmty. Sch. Dist., 375 N.W.2d 222, 224 (Iowa 1985).

       In ruling on the pre-answer motions to dismiss, the district court found the

Gopleruds were “aggrieved by the Board of Adjustment’s decision to agree with

the Director’s decision to issue a Notice of Violations concerning a county zoning

matter.” The court concluded the Gopleruds were “authorized by Iowa Code

§ 335.18 to present the present Petition to the court.” At the rule 1.1406 hearing,

however, the court found there was no evidence to show “plaintiffs have been

aggrieved or that there is any specific and injurious effect that the plaintiffs have

suffered as a result of essentially the Board of Adjustment’s findings and

agreement with the director’s decision to issue a notice of violation.” The court

determined the petition for writ of certiorari should be dismissed because plaintiffs

did not show they were “aggrieved by any decision of the board of adjustment.”

See Iowa Code § 335.18.

       “Proof that a party is ‘aggrieved’ by agency action is shown by evidence of

‘(1) a specific personal and legal interest in the subject matter of the agency
                                           8


decision and (2) a specific and injurious effect on this interest by the decision.’”

Chrischilles, 505 N.W.2d at 493–94 (quoting Iowa–Illinois Gas & Elec. Co. v. Iowa

State Commerce Comm’n, 347 N.W.2d 423, 426 (Iowa 1984)). “The specific

interest required for standing needs only to be distinguishable from ‘a general

interest, such as is the concern . . . of the community as a whole.’” Iowa Power &

Light Co. v. Iowa State Commerce Comm'n, 410 N.W.2d 236, 239 (Iowa 1987)

(quoting Iowa–Illinois Gas & Elec. Co., 347 N.W.2d at 426).

       As noted, “[w]e are confronted only with the question whether certiorari will

lie in the pleaded circumstances,” meaning we must concentrate on the claims in

the petition. See Hoefer, 375 N.W.2d at 224. We first consider whether the claims

in the petition adequately show “a specific personal and legal interest in the subject

matter of the agency decision.” See Chrischilles, 505 N.W.2d at 493–94. The

petition states the “Gopleruds and Hales spent several hundreds of thousands of

dollars constructing this carriage house/garage.” Also, the Hales relied upon the

building permit issued by the Department and “sold their acreage of 25 years in

anticipation of living in the completed carriage house/garage.” The petition states,

“The Hales have a specific personal, property, and legal interest in this matter, as

they have been injured in a manner special to them, and not any other party,

homeowner, or the public as a whole, by the illegal actions of the Dallas County

[Board].”

       We find the district court erred in concluding the petition for writ of certiorari

did not set out a claim plaintiffs had “a specific personal and legal interest in the

subject matter of the agency decision.” See id. The petition shows the plaintiffs

have an interest in the Board’s decision upholding the Notice of Violation which is
                                          9


distinguishable from the interest of the community as a whole, as the notice relates

to the Gopleruds’ property and residence of the Hales. See Iowa Power & Light

Co., 410 N.W.2d at 239.

       We next consider whether the petition contains a claim plaintiffs received “a

specific and injurious effect on [their] interest by the [Board’s] decision.” See

Chrischilles, 505 N.W.2d at 494. The petition claims the Department issued a

Notice of Violation, stating the carriage house on the Gopleruds’ property was in

violation of county ordinances. The Gopleruds appealed the Notice of Violation to

the Board, which upheld the decision of the Department. The petition claims the

Board’s findings were unsubstantiated and insufficient, both factually and legally,

and were not supported by the ordinances cited in its decision. The petition also

claims the Gopleruds and Hales had a vested right to proceed under the building

permit and they spent “hundreds of thousands of dollars” in reliance on the building

permit.    Furthermore, the petition claims the Board’s decision “was an

appropriation of Plaintiffs’ property without due process of law.”

       The Notice of Violation issued by the Department informed the Gopleruds

the accessory structure on their property, the carriage house, was in violation of

county ordinances because it was a residence, and under the ordinances two

single-family residences could not be located on one lot. The notice stated in order

to correct the violation, the Gopleruds would need to:

              1. Cease and desist from using (or allowing any third party to
       use) the purported accessory structure as a principal and primary
       residence.
              2. Modify the accessory building to comply with the certificate
       of zoning compliance and occupancy permit issued by Dallas
       County.
                                         10


               3. Use [the] accessory building in compliance [with] R-2
       District Regulations.

The notice warned a failure to correct the violation by March 10, 2017, “will result

in further action by the county, including prosecution as a simple misdemeanor

punishable by a fine or imprisonment, or the issuance of a civil citation and

assessment of a fine.” Additionally, the notice stated each day the Gopleruds

remained in violation of the ordinances after March 10 would be considered a

separate offense.

       The Notice of Violation presents the plaintiffs with two alternative

consequences, both of them negatively affecting the rights and interests of the

plaintiffs. If plaintiffs made corrections so they were no longer considered to be in

violation of the ordinances the Hales would be required to move from the carriage

house, the plaintiffs would need to modify the carriage house so it could no longer

be used as a residence, and they could only use the building for storage in the

future. On the other hand, if plaintiffs did not make the requested corrections, the

notice states this “will result in further action by the county, including prosecution

as a simple misdemeanor punishable by a fine or imprisonment, or the issuance

of a civil citation and assessment of a fine.” (Emphasis added.) Each day the

plaintiffs were determined to be in violation of the ordinances would constitute a

separate offense, potentially resulting in a large number of fines or days of

imprisonment.

       We conclude the district court erred by finding the petition did not

adequately claim the plaintiffs were subjected to “a specific and injurious effect on

[their] interest by the [Board’s] decision.” See id. The plaintiffs “show[ed] some
                                         11

injury to an interest which is distinguishable from that of the general public.” See

Richards v. Iowa Dep’t of Revenue & Fin., 454 N.W.2d 573, 575 (Iowa 1990). A

showing the party is “subject to the allegedly invalid [decision] demonstrates the

requisite injurious effect.” Lundy v. Iowa Dep’t of Human Servs., 376 N.W.2d 893,

895 (Iowa 1985).

       We conclude the petition for writ of certiorari filed by plaintiffs contains

claims of “‘(1) a specific personal and legal interest in the subject matter of the

agency decision and (2) a specific and injurious effect on this interest by the

decision.’” See Chrischilles, 505 N.W.2d at 493–94 (citation omitted). We note

Dallas County stated at the hearing, “We agree that this petition is sufficient and

you should issue a writ of certiorari against the Dallas County Board of Adjustment

for purposes of making a record return.” We find plaintiffs have shown they are

aggrieved by a decision of the Board. See Iowa Code § 335.18.

       We determine the district court erred by dismissing the petition for writ of

certiorari. We reverse on this issue and remand for further proceedings.

       IV.    Tortious Interference

       Plaintiffs’ petition included a claim NVOA improperly influenced the

Department and Board, and this amounted to tortious interference with the use of

their property. The petition noted the NVOA had filed suit against the Gopleruds

on October 29, 2015. It states the NVOA contacted the Department in August

2016 and requested the Department find the Gopleruds were in violation of county

zoning ordinances. Some information about the violation was then presented at

the civil trial in the NVOA action. Additionally, plaintiffs claim the NVOA improperly

communicated in writing with the Board during the Gopleruds’ appeal of the Notice
                                          12


of Violation. The petition states the NVOA’s “conduct demonstrates clearly its

improper purpose to harass, and cause needless increase in cost of litigation to

Gopleruds, subjecting it to damages on behalf of Gopleruds, and was an

appropriation of the Plaintiffs’ property without due process of law.”

       The NVOA filed a motion to dismiss, claiming the petition failed to state a

claim upon which relief may be granted. See Iowa R. Civ. P. 1.421(1)(f). The

NVOA stated the petition failed to give notice of a legally cognizable claim under

Iowa law and NVOA could not be subject to civil liability for “exercising its

constitutional right to petition its government for governmental action.” Plaintiffs

resisted the motion.

       At the hearing on the motion, plaintiffs conceded there were no Iowa cases

to support a claim of tortious interference with property rights. They stated the

claim could be raised as an issue of first impression. Plaintiffs stated the facts

could also support claims of private nuisance and wrongful use of civil

proceedings.

       The district court made an oral ruling:

       In this case, even if I do accept the facts as alleged in paragraphs 43
       through 45 concerning Napa Valley Owners Association as true, I am
       in agreement with Napa Valley Owners Association that there is no
       right to recovery in Iowa under a theory of tortious interference with
       property rights. And while [plaintiffs’ attorney] argues that this will be
       an issue of first impression for this Court, this Court is not going to
       create a new cause of action in Iowa as I don’t believe that’s
       appropriate at the district court level.
               I also find that the causes of action concerning private
       nuisance and wrongful use of civil proceedings are not appropriate
       for me to consider as those causes were not pled in the petition.
                                           13


The court also issued a written ruling granting NVOA’s pre-answer motion to

dismiss on the ground the petition failed to state a claim upon which relief may be

granted.

       “We review district court rulings on motions to dismiss for failure to state a

claim upon which relief may be granted for the correction of errors at law. Young

v. HealthPort Techs., Inc., 877 N.W.2d 124, 127 (Iowa 2016). “Thus, a motion to

dismiss may be properly granted ‘only when there exists no conceivable set of

facts entitling the non-moving party to relief.’” Id. (citation omitted). “In ruling on a

motion to dismiss, a court construes the petition in the light most favorable to the

plaintiff and resolves any doubts in the plaintiff’s favor.” Id. at 128.

       There are no Iowa cases supporting the plaintiffs’ claim for tortious

interference with property rights.     Furthermore, plaintiffs did not argue for an

extension of existing law, but cited to cases involving tortious interference with

contracts or prospective business interests, which are recognized causes of action.

See, e.g., Kern v. Palmer Coll. of Chiropractic, 757 N.W.2d 651, 662 (Iowa 2008)

(discussing intentional interference with an existing contract); Blumenthal Inv. Trs.

v. City of W. Des Moines, 636 N.W.2d 255, 269 (Iowa 2001) (discussing tortious

interference with a prospective business advantage). We find no error in the

court’s conclusion the claim of tortious interference with property rights was not

recognized by Iowa law.

       Plaintiffs stated the facts could also support claims of private nuisance and

wrongful use of civil proceedings. In considering a motion to dismiss, “[w]e look to

the pleadings to determine if they were so deficient plaintiff was deprived of notice

of the claims made.” Doerring v. Kramer, 556 N.W.2d 816, 818 (Iowa Ct. App.
                                        14


1996). We find the district court did not err in finding NVOA was not given

adequate notice plaintiffs were raising claims of private nuisance and wrongful use

of civil proceedings, as these claims were not mentioned in the petition.

       We conclude the district court did not err in granting NVOA’s motion to

dismiss for failure to state a claim upon which relief may be granted and affirm the

court’s ruling.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
