                     IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1665
                            Filed September 12, 2018


STEVE GUSTAFSON and JANELLE GUSTAFSON,
     Plaintiff-Appellants,

vs.

THE BOARD OF ADJUSTMENT OF BUENA VISTA COUNTY, IOWA and MARK
SNYDER,
     Defendant-Appellees.
________________________________________________________________


       Appeal from the Iowa District Court for Buena Vista County, Don E.

Courtney, Judge.



       Property owners appeal the denial of a writ of certiorari of the decision by

the county board of adjustment approving a building permit on a nonconforming

lot. AFFIRMED.



       Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu & Badding, PC,

Carroll, for appellant.

       Nicholas J. Brown of Nick Brown, PC, Storm Lake, for appellee Mark

Snyder.

       David W. Patton, Buena Vista County Attorney, for appellee Board of

Adjustment of Buena Vista County.



       Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

       Steve and Janelle Gustafson appeal the decision of the Board of

Adjustment of Buena Vista County (the Board) to grant a zoning certificate for the

construction of a single-family residence on a nonconforming lot and the district

court’s subsequent dismissal of their petition for writ of certiorari. The Gustafsons

claim the district court erred in relying on the Board’s decision and in its

interpretation of the ordinance, and they claim the lot did not pre-exist the

ordinance.

       I.      Background Facts and Proceedings

       In late November 2015, Mark Snyder purchased a cabin in an

unincorporated area of Storm Lake. Buena Vista County has zoned the area as

an R-2 residential area. Single-family residential structures are permitted in this

R-2 District under Section 6.101 of the zoning ordinance. In March 2016, Snyder

and his neighbors each obtained quiet title to a strip of land from the north line of

their properties to the water front.

       The cabin and its lot predated applicable zoning ordinances regarding lot

sizes and did not meet current zoning requirements for the area.1 In June 2016,

Snyder demolished the cabin intending to move a new dwelling into its place.2

Between May and October, Snyder submitted and withdrew several applications

to the Board for permits and variances, as he worked with the zoning administrator




1
    The combined land area of Snyder’s property was 4600 square feet with a lot width of
forty feet. The zoning ordinance for the district requires lots be 8500 square feet with a
lot width minimum of seventy feet.
2
   The demolition was completed under a May 2016 permit.
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and the Board to plan a building complying with setback and side yard

requirements.

       On November 16, 2016, Snyder filed an application for a zoning compliance

permit with the Board to build a single-family residence on his nonconforming lot

meeting all side yard, setback, and other zoning requirements.          The zoning

administrator granted the application the same day and issued a zoning

compliance permit to Snyder. The Gustafsons, whose home abuts the lot, filed a

notice of appeal with the Board. The permit was stayed, and a hearing was held

before the Board on December 13. The Gustafsons advanced two legal theories

why the permit should not have been granted: (1) under the ordinance no structure

can be built on nonconforming lots, and (2) the lot proposed in the permit did not

pre-exist the ordinance.      After hearing arguments and public comments,

questioning the zoning administrator, county attorney, and Snyder, and reviewing

the documents provided, the Board deliberated and unanimously upheld the

zoning administrator’s decision to grant the permit. The meeting and the decision

were recorded, and minutes from the meeting were kept and approved.

       On January 13, 2017, the Gustafsons filed a petition for writ of certiorari in

the district court against the Board and Snyder alleging the Board acted illegally

and arbitrarily in affirming the zoning administrator’s decision. The parties agreed

to submit the case on the facts in the record, including a transcript of the

proceedings and facts from the Board’s hearing. The parties submitted additional

stipulated facts, exhibits, and written arguments. On September 27, the district

court dismissed the petition for writ of certiorari and upheld the Board’s decision.

The Gustafsons appeal.
                                              4


       II.     Standard of Review

       “Our review of the denial of the petition for writ of certiorari is at law.” Frank

Hardie Advert., Inc. v. City of Dubuque Zoning Bd. of Adjustment, 501 N.W.2d 521,

523 (Iowa 1993). The district court has the authority to review de novo a petition

for certiorari directed to a county board of adjustment under Iowa Code sections

335.19 and 335.21 (2017).3 The Gustafsons had the burden to prove the Board’s

decision was illegal in whole or in part. Iowa Code § 335.18. “We review the

record to determine whether the trial court applied the correct legal standards and

whether its decision is supported by substantial evidence.” City of Des Moines v.

Bd. of Adjustment, 448 N.W.2d 696, 698 (Iowa Ct. App. 1989). “Evidence is

substantial ‘when a reasonable mind could accept it as adequate to reach the

same findings.’” City of Cedar Rapids v. Mun. Fire & Police Ret. Sys., 526 N.W.2d

284, 287 (Iowa 1995) (citation omitted).

       III.    Analysis

       The Gustafsons make several claims on appeal. First, they claim the district

court incorrectly applied the proper rule of law by deferring to the Board’s

interpretation of the county ordinances and challenge the Board’s failure to issue

a written decision. Second, the Gustafsons claim the ordinance does not permit a

new structure to be built on a nonconforming lot after an existing structure is




3
   The district court discussed the standard of review under chapter 414 of the Iowa Code,
which covers city zoning, not county zoning as governed by chapter 335. While this is a
technical error of law, it does not materially affect the court’s decision, as we give the same
interpretation to mirroring sections from chapters 414 and 335. See Martin Marietta
Materials, Inc. v. Dallas County, 675 N.W.2d 544, 550–51 (Iowa 2004) (interpreting
sections 335.21 and 414.18 together).
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demolished. Finally, they argue Snyder’s lot at the time of application for the permit

was not a single lot of record when the ordinance was adopted.

       A.     Deferral to Board’s interpretation of law

       The Gustafsons claim the district court incorrectly deferred to the Board’s

interpretation of the ordinance. They are correct that statutory construction and

questions of law are to be determined by the judiciary. However, the district court

did not simply defer to the Board in accepting its interpretation of the ordinance.

       The district court examined two possible interpretations of the county zoning

ordinances. The Gustafsons’ interpretation would forbid construction on any pre-

existing lot that was not vacant or under construction at the time the ordinance was

enacted, severely restricting the rights of property owners.            The Board’s

interpretation, which followed the advice provided by the county attorney, allows

property owners greater use of their property without infringing on the rights of

other property owners.

       As the district court noted, Iowa courts strictly construe restrictions on the

free use of property, resolving any ambiguity in favor of unrestricted use of the

property. Maher v. Park Homes, Inc., 142 N.W.2d 430, 434 (Iowa 1966); see also

Johnson v. Bd. of Adjustment, 239 N.W.2d 873, 881 (Iowa 1976); Steinlage v. City

of New Hampton, 567 N.W.2d 438, 442 (Iowa Ct. App. 1997). “A zoning ordinance

should not be extended by implication to prevent a use not clearly prohibited.”

Arkae Dev., Inc. v. Zoning Bd. of Adjustment, 337 N.W.2d 884, 886 (Iowa Ct. App.

1983). We find no indication the district court followed the Board’s interpretation

without performing its own analysis.      The district court followed case law by

choosing the less restrictive construction of the ordinance.
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       The Gustafsons claim the Board did not issue a written decision following

the administrative appeal, constituting an abuse of discretion requiring reversal of

the Board’s decision. However, “[o]fficial minutes can, of course, be used to

memorialize a decision” of the board of adjustment.              Burroughs v. City of

Davenport Zoning Bd. of Adjustment, 912 N.W.2d 473, 483 (Iowa 2018). Minutes

were submitted in this case along with a supplemental audio recording of the

meeting, providing us a record to review on appeal.4

       According to the minutes and recording, facts regarding the lot’s zoning,

size, and current status were presented by the Gustafsons and agreed to by the

zoning administrator and Snyder.         The minutes and recording describe the

Gustafsons’ legal theory for their preferred interpretation of the ordinance and their

admission no Iowa precedent backed that interpretation.             Their interpretation

differed from the county attorney’s opinion letter the administrator relied on in

issuing the permit, which had also been provided to the Board.5 The Gustafsons

then presented their theory the lot in the permit did not pre-exist the ordinance as

required. The Board requested and received a legal interpretation on the pre-

existing lot size from the county attorney. Following other public comments and a

closed session as well as consideration of the county attorney’s opinion letter, the

Board voted the zoning administrator “followed the code in determining her

decision on granting the permit.”


4
   While in this case the minutes and audio recording proved sufficient, clearly expressed
findings of fact and law will generally be necessary for proper review. See Bontrager Auto
Serv., Inc. v. Iowa City Bd. of Adjustment, 748 N.W.2d 483, 491–92 (Iowa 2008).
5
   The letter examined the ordinance and expressly found the nonconforming lot provision
to prevail over the general intent language and the ordinance allowed building on a
substandard lot. The letter noted similar ordinance interpretations in counties facing
similar development questions.
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       For the certiorari action, the parties submitted to the district court a

stipulation of facts, the minutes from the meeting, the audio recording of the

Board’s public hearing, the materials provided to the Board, and written briefs.

Among the exhibits presented was the July 26, 2016 opinion letter issued by the

Buena Vista County Attorney to the zoning administrator on the interpretation of

the zoning ordinances the Board had before it during the meeting. Together, the

stipulation, minutes, recording, documents provided to the Board, and

interpretations from the county attorney provided sufficient record for the district

court to review both the factual and legal basis of the decision.

       B.     Ordinance construction

       This case turns on interpretation of the Buena Vista County nonconforming

lots ordinance. The language at issue provides:

       Nonconforming Lots: In any district in which single-family dwellings
       are permitted, notwithstanding limitations imposed by other
       provisions of this Ordinance, a single-family dwelling and customary
       accessory buildings may be erected on any single lot of record at the
       effective date of adoption or amendment of this Ordinance. This
       provision shall apply even though such lot fails to meet the
       requirements involving area or width, or both, of the lot; [ . . . ] shall
       conform to the regulations for the district in which such lot is located.

Buena Vista Cty. Code of Ordinances § 6.1.9.105(2) (2003) (omission in original).

       The Gustafsons claim the above provision is modified by the Intent

subsection of the ordinance to limit construction on nonconforming lots only to

instances where either construction began prior to the adoption of the ordinance

or the nonconforming lot was vacant at the time of the adoption.               See id.

§ 6.1.9.105(1) (expressing the intent to permit nonconfoming lots, structures, and

uses to continue until removed but not encourage their survival and that
                                        8


nonconforming uses should not be extended, enlarged, or used as grounds to add

otherwise prohibited structures). They also cite the nonconforming structures

ordinance, though no evidence presented shows the proposed structure itself

would be nonconforming, rather, the permit process had been protracted due to

the need for Snyder to apply for a permit for a conforming structure, which would

be located on the nonconforming lot.        See id. § 6.1.9.105(4).   Finally, the

Gustafsons cite as controlling a conflicts ordinance requiring a more restrictive

ordinance should prevail over a less restrictive ordinance. Id. § 6.1.1.104(A).

However, the zoning ordinances also include specific procedures for special

exceptions and variances from the ordinances—procedures that would be

unnecessary if the most restrictive ordinance must always prevail.        See id.

§ 6.1.10.101–.102.

      Addressing the Gustafsons’ claim of the intent provision modifying the

nonconforming lots provision, we turn to our standard tools of statutory

interpretation. Iowa courts follow the principle of statutory construction when

specific and general statutes conflict or are ambiguous, the specific statute

controls. Oyens Feed & Supply, Inc. v. Primebank, 808 N.W.2d 186, 194 (Iowa

2011). “Legislative intent is shown by what an ordinance says, rather than what it

should or might have said.” Baker v. Bd. of Adjustment, 671 N.W.2d 405, 416

(Iowa 2003).    The court’s interpretation may not enlarge, change, or read

something into a law not apparent from the words chosen by the governing body.

See State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017).

      We agree with the Board’s interpretation of the ordinance. The ordinance

expressly provides “a single-family dwelling and customary accessory buildings
                                          9


may be erected on any single lot of record at the effective date of adoption or

amendment of this Ordinance.”           Buena Vista Cty. Code of Ordinances

§ 6.1.9.105(2). In particular, the phrase “notwithstanding limitations imposed by

other provisions of this Ordinance” precludes the Gustafsons’ “ordinances as a

whole” argument. See id. The language is a clear and concise indication from the

legislating body that the specific rule controls over the general and permits a new

dwelling to be erected despite the lot’s nonconformance. We find nothing in the

ordinances to suggest the county intended to divest lawful owners of a pre-existing

lot of the right to erect a dwelling complying with all other ordinance requirements.

The nonconforming lots ordinance does not exempt any dwelling or accessory

building from conforming to other residential district ordinance requirements,

including uses, height, setbacks, or side yards; nor does it permit the creation of

additional nonconforming lots. The Board’s decision to uphold the zoning permit

complies with the county ordinances.

       C.     Lot size

       As to the Gustafsons’ final claim, the county attorney confirmed to the Board

at the hearing that the lakefront land subject to the quiet title action had never been

platted separately or dedicated to the public and so was part of the lots. The court

in the quiet title action expressly found the property owners had proven by clear

and convincing evidence they owned the property in fee simple on the strength of

their title and the State, county, and township had no rights in the property. The

quiet title action did not create a new nonconforming lot, and Snyder’s lot falls

within section 6.1.9.105(2).
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        Finding no error below, we affirm the district court’s dismissal of the petition

for writ of certiorari.

        AFFIRMED.
