                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0849
                              Filed January 27, 2016


IOWA COALITION AGAINST THE SHADOW and ROCKNE COLE,
     Plaintiff-Appellants,

vs.

CITY COUNCIL OF IOWA CITY,
      Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Johnson County, Paul D. Miller,

Judge.



       A rezoning applicant appeals the district court’s decision granting

summary judgment to the City Council of Iowa City and annulling the applicant’s

writ of certiorari. AFFIRMED.



       Christopher Warnock, Iowa City, for appellants.

       Elizabeth J. Craig and Sara Greenwood Hektoen, Assistant City

Attorneys, Iowa City, for appellee.



       Heard by Danilson, C.J., and Vogel and Potterfield, JJ.
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VOGEL, Judge.

      Rockne Cole and Iowa Coalition Against the Shadow (ICATS) appeal the

district court’s decision granting summary judgment to the City Council of Iowa

City involving the rezoning of a certain parcel of land in Iowa City. Rockne Cole,

along with Jon Fogarty and Mark McCallum, filed an application to rezone certain

property owned by Iowa City. The rezoning application was denied by the City

Council, and Cole, along with ICATS, petitioned for a writ of certiorari with the

district court to contest the City Council’s refusal to rezone the property. Both

parties filed motions for summary judgment, and the district court granted the

City Council’s motion, annulling the writ. On appeal from the district court, Cole

and ICATS assert the district court erred in concluding they lack standing to

challenge the City Council’s decision denying the rezoning application. They

also claim the City Council should have granted the application for rezoning as it

was appropriate for the parcel in question. Because we agree neither Cole nor

ICATS has standing to challenge the rezoning decision, we affirm the district

court and need not address the merits of the rezoning decision.

I. Background Facts and Proceedings.

      Iowa City owned certain property located at the corner of Gilbert and

College Streets that was no longer needed for city purposes. The parcel was

zoned as “Neighborhood Public Zone” (P-1).         The City Council requested

developers submit proposals to develop this property, and thereafter, the City

Council accepted the proposal from developer Marc Moen to build a twenty-story

building, which would contain both commercial and residential units (the

Chauncey). Seeking to prevent the building from rising to its anticipated height,
                                         3


Cole, Fogarty, and McCallum filed an application to rezone the property in

question to “Central Business Support Zone” (CB-5), which allows for buildings

with mixed uses but has a height restriction of approximately seventy-five feet. In

order for the Chauncey to be built, the property would need to be rezoned with a

“Central Business Zone” (CB-10) designation, which contains no height

restrictions.

       None of the rezoning applicants owned property neighboring the parcel in

question or sought to purchase the property to erect a building that would comply

with CB-5 zoning. The rezoning application urged the City Council “to protect our

cherished commons, and allow future generations of children to enjoy the bright

sunlight at Chauncey Swan Park without a 20 story tower looming over them. A

CB-5 designation will allow our community to grow and prosper without

compromising the needs of future generations.”

       The Planning and Zoning Commission held both informal and formal

meetings in April 2013, hearing from many members of the public on both sides

of the issue, and ultimately, a recommendation to approve the rezoning

application failed based on a vote of 2–5. The applicants requested the City

Council consider the rezoning request, which it did at its May 14, 2013 meeting.

The City Council also denied the rezoning application based on a vote 5–2,

leaving the property zoned P-1.

       As there is no right to file a direct appeal from the City Council’s zoning

decision, Cole and ICATS filed a petition for writ of certiorari asserting the denial

of the rezoning application was arbitrary and discriminatory because the City

Council had already prejudged the issue and intended to grant CB-10 zoning to
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accommodate the Chauncey development. They also asserted CB-10 zoning

violated the comprehensive plan and Iowa Code section 414.3 (2013), and

constituted illegal spot zoning. After both parties submitted motions for summary

judgment, the district court ruled:

       Plaintiffs do not have standing to proceed with this action. First,
       Plaintiffs cannot show any specific personal or legal interest in the
       litigation. Plaintiffs have not shown a legal interest in the subject
       property or surrounding property. Plaintiffs are not neighbors to the
       subject property. Plaintiffs have not expressed any specific interest
       in purchasing or developing the property. Plaintiffs have not shown
       any specific use of the property by Plaintiffs. Rather, Plaintiffs have
       stated only general claims of interest in the subject property,
       including that they want to have sunlight be visible in the park next
       to the subject property, and that the City has breached the public
       trust. These are not specific personal or legal interests, and if the
       wrong complained of produces a legally cognizable injury, Plaintiffs
       cannot show, at this point, that they are among those who have
       sustained the injury.
                Second, Plaintiffs cannot show that they have been injured
       by Defendant’s decision. As previously discussed, Plaintiffs have
       alleged only general concerns about the rezoning and potential
       development, and simply cannot show a threatened injury that is
       real, immediate, and direct.

The court went on to hold that even if Cole and ICATS had standing, their claims

regarding whether CB-10 zoning for the property was against the comprehensive

plan and whether it was illegal spot zoning were not ripe for adjudication because

the City Council had not yet made a decision regarding whether the property

would be rezoned as CB-10 to allow for the Chauncey development. The district

court determined it would be premature to make a determination as to whether

CB-10 zoning violated the comprehensive plan or constituted spot zoning and

such a determination could be made if and when the City Council approved such
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a request.1 Finally, the district court determined the plaintiffs failed to show they

were part of a protected class with respect to their claim of discrimination, failed

to show the City Council acted unreasonably in denying the rezoning application,

and failed to show any due process violation.2 The district court annulled the writ

and dismissed the case.

       Cole and ICATS appeal.3

II. Scope and Standard of Review.

       A writ of certiorari is “an action at law to test the legality of an action taken

by a court or tribunal acting in a judicial or quasi-judicial capacity.” Petersen v.

Harrison Cty. Bd. of Supervisors, 580 N.W.2d 790, 793 (Iowa 1998); see also

Iowa R. Civ. P. 1.1401. We review such actions for the correction of errors at

law, and we only review the question of jurisdiction and the legality of its actions.


1
  The City Council informed this court in its brief and at oral argument that a subsequent
rezoning application to rezone the property to CB-10 has been granted by the City
Council. The City Council advised this court that a property owner within two hundred
feet of the property in question sought a writ of certiorari from the district court
challenging the CB-10 rezoning decision, the writ of certiorari has been annulled by the
district court, and a notice of appeal to the Iowa Supreme Court has been filed. Because
of the subsequent action taken by the City Council to rezone the property in question
and the current pending litigation over that rezoning decision, the City Council asserts no
ruling from this court regarding the legality of the denial of the CB-5 zoning application
would have any effect on the validity of the current CB-10 rezoning decision, making this
action moot. Because we conclude neither Cole nor ICATS has standing, we need not
address what effect the subsequent CB-10 rezoning has on the prior application.
2
  It was unclear to the district court whether Cole and ICATS were asserting a procedural
or substantive due process claim. The district court noted, and we agree, that there is
no procedural due process violation as notice and an opportunity to be heard was
provided to the applicants. Public meetings on the rezoning application were held both
in front of the planning and zoning commission as well as the City Council after notice
was provided to all interested parties. The district court likewise determined no
substantive due process violation occurred.
3
   On appeal, Cole and ICATS do not contest the district court’s conclusion that their
claims that a CB-10 rezoning violated the comprehensive plan or constituted illegal spot
zoning are not ripe for adjudication. They also do not contest on appeal the court’s
conclusion that they failed to establish their discrimination claim or their due process
claim. Therefore, we need not address these claims in this opinion.
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Ary v. Iowa Dist. Ct., 735 N.W.2d 621, 624 (Iowa 2007).                  When the lower

tribunal’s facts are not supported by substantial evidence or when the law has

not been applied properly an illegality exists. Id. The district court annulled the

writ by granting the City Council’s motion for summary judgment. Our review of

the district court’s summary judgment ruling is also for correction of errors at law.

City of Johnston v. Christenson, 718 N.W.2d 290, 296 (Iowa 2006). “Summary

judgment is properly granted ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.’” Id. (quoting Iowa R. Civ. P. 1.981(3)).

III. Standing.

       Cole and ICATS claim the district court erred in concluding they lack

standing to challenge the City Council’s denial of the rezoning application. Cole

claims as he was one of the applicants who applied for rezoning he has standing

to seek review of the propriety of the denial. Because the Iowa City Municipal

Code grants him, along with all persons, the ability to apply to rezone any

property, he claims he has standing to petition the court for a writ of certiorari if

that application is denied.4 With respect to ICATS’s standing, plaintiffs claim that


4
  Iowa City Code of Ordinances 14-8D-5A states that the City Council may amend the
boundaries of the zoning districts or the regulations or restrictions of the city code on its
own motion or upon a petition. Iowa City Code of Ordinances 14-8D-5B provides, “Any
person intending to request a zoning map amendment or zoning code text amendment is
encouraged to meet with staff from the department of planning and community
development to discuss basic intentions before investing time in detailed plans.”
(Emphasis added.) There is no other indication in the city code restricting who may
apply for rezoning, and Cole and ICATS rely on the emphasized language above to
support their proposition that any person may apply to have property rezoned in Iowa
City. The City Council does not contest Cole’s ability to apply to rezone the property in
question.
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the unincorporated association has standing to assert the rights of its members in

challenging the rezoning denial.

      To have standing to sue means the person “must have sufficient stake in

an otherwise justiciable controversy to obtain judicial resolution of that

controversy.” Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 863 (Iowa 2005). The

party complaining must “(1) have a specific personal or legal interest in the

litigation and (2) be injuriously affected.” Id. at 864. With respect to zoning

decisions made by city councils,

      [a] person having only a general interest will not be permitted to
      initiate action to promote judicial enforcement or interpretation of
      zoning regulations. Only a person whose specific interest or
      property rights are specially damaged, in contrast to any effect
      suffered by the public generally, is entitled to challenge a zoning
      authority’s decision.

Reynolds v. Dittmer, 312 N.W.2d 75, 77-78 (Iowa 1981). When determining

whether a person has sufficient interest to challenge a zoning decision, we have

relied on factors enumerated by the Florida Supreme Court: “(1) proximity of the

person’s property to the property to be zoned or rezoned; (2) character of the

neighborhood, including existence of common restrictive covenants and set-back

requirements; (3) type of change proposed; and (4) whether the person is one

entitled to receive notice under the zoning ordinance.” Id. at 78 (citing Renard v.

Dade County, 261 So. 2d 832, 837 (Fla. 1972)).

      Applying these factors to this case, we agree with the district court’s

decision that neither Cole nor ICATS has standing to seek judicial redress of the

City Council’s zoning decision. Neither ICATS nor Cole own property near the

parcel at issue. While ICATS may have been formed before the application was
                                           8


filed,5 it is not listed on the application as a party seeking the parcel to be

rezoned.    In addition, even if ICATS has standing to assert the rights of its

members as claimed on appeal, there is no indication that ICATS’s individual

members have standing to challenge the rezoning denial.             There is also no

indication such members with standing assigned those rights to ICATS to assert

the claim on the member’s behalf.

        In the application, Cole’s only stated interest in rezoning the property from

P-1 to CB-5 was to prevent a twenty-story building from being constructed on the

land.    Cole’s application stated the rezoning was needed “to protect our

cherished commons, and allow future generations of children to enjoy the bright

sunlight.” Cole also claimed the rezoning was needed for “our community to

grow and prosper without compromising the needs of future generations.” This is

a generalized grievance shared equally with all, or at least a large class of,

citizens. Alons, 698 N.W.2d at 868 (“[W]hen the asserted harm is a ‘generalized

grievance’ shared in substantially equal measure by all or a large class of

citizens, that harm alone normally does not warrant exercise of jurisdiction.”).

        The location of the parcel in question is in a commercial area of the city

located near a church, a community park, and a parking garage. The change

proposed was to rezone the property from P-1 to CB-5. P-1 land is used for

“schools, parks, police and fire stations, and other civic buildings owned or

otherwise controlled by the county, the city, or the Iowa City community school

5
 The Iowa Secretary of State’s Office indicates ICATS first filed for the appointment of
an agent on June 3, 2013, several weeks after the City Council denied the rezoning
application. However, Cole asserts in his affidavit in opposition to the City Council’s
motion for summary judgment that ICATS had its initial meeting in late January 2013,
before the rezoning application was filed.
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district.”   See Iowa City Code of Ordinances 14-2F-1(B)(1).         At the time the

rezoning application was submitted, the property in question was a vacant lot,

used for parking and storage, and one building had a leased business tenant.

The CB-5 designation is used “for the orderly expansion of the central business

district in accordance with the comprehensive plan; to serve as a transition

between the intense land uses located in the central business district and

adjoining areas; and to enhance the pedestrian orientation of the central area of

the city.” See Iowa City Code of Ordinances 14-2C-1(H). There is nothing in the

character of the neighborhood or the proposed zoning change that indicates Cole

or ICATS has a particular interest in the zoning change.

        Finally, neither Cole nor ICATS is a party entitled to receive notice under

the zoning ordinance.       Iowa Code section 414.5 and Iowa City Code of

Ordinances 14-8D-5G gives property owners within 200 feet of the property to be

rezoned the ability to trigger a super-majority vote of the council if at least 20% of

those property owners sign a protest to the proposed amendment.             The City

Council asserts it has a practice to give notice of proposed zoning changes to the

property owners within 300 feet of the affected parcel.        On appeal Cole and

ICATS assert Pam Michaud, a member of ICATS, owns property less than two

blocks from the parcel in question, but neither her name nor her address is listed

in the “list of property owners within 300 feet” that Cole attached to the rezoning

application.

        In addition to agreeing with the district court’s conclusion that neither Cole

nor ICATS has a specific personal or legal interest in the rezoning decision, we

also agree that neither has been injuriously affected by the City Council’s
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decision to deny rezoning the property to CB-5. The rezoning application was

submitted in an attempt to prevent the twenty-story Chauncey from being

constructed on the parcel in question.        The interest asserted to justify the

rezoning change was “to protect our cherished commons, and allow future

generations of children to enjoy the bright sunlight at Chauncey Swan Park

without a 20 story tower looming over them.” Leaving the property zoned P-1

furthered this interest; it did not injure it. In addition, even assuming for the sake

of argument the City Council agreed to rezone the property to CB-5, there is no

prohibition from the City Council later rezoning the property to CB-10, if and

when the Chauncey’s developer files an application. Thus, granting the CB-5

zoning designation would not prevent the injury Cole and ICATS seek to avoid.

       Because we agree with the district court that neither Cole nor ICATS can

show either a specific personal or legal interest or that the City Council’s action to

deny the CB-5 rezoning application injuriously affected them, we affirm the

district court’s grant of summary judgment to the City Council and the court’s

annulment of the writ of certiorari.

       AFFIRMED.
