                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0476
                              Filed August 21, 2019


FRIENDS OF BUNKER MILL BRIDGE, INC.,
     Plaintiff-Appellant,

vs.

WASHINGTON COUNTY BOARD OF SUPERVISORS,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Washington County, Randy S.

DeGeest, Judge.



      Friends of Bunker Mill Bridge, Inc. appeals the district court’s ruling on its

petition for writ of certiorari upholding the order of the Washington County Board

of Supervisors vacating a portion of a secondary highway. AFFIRMED.




      Siobhan Briley of Pugh Hagan Prahm PLC, Coralville, for appellant.

      John Gish and Chauncey Moulding (until withdrawal) of Washington County

Attorney’s Office, Washington, for appellee.



      Considered by Vaitheswaran, P.J., Vogel, S.J.,* and Blane, S.J.*

      *Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VAITHESWARAN, Presiding Judge.

       We must decide whether we have subject matter jurisdiction to review a

decision to vacate and close a road and whether, if we do, the decision is

supported by substantial evidence.

I.     Background Proceedings

       The Washington County Board of Supervisors vacated and closed a portion

of a public road near a historic bridge that was restored by Friends of Bunker Mill

Bridge, Inc. (FBMB). FBMB sought review of the decision by filing a petition for

writ of certiorari with the district court. The board moved to dismiss the petition on

the ground that review was statutorily foreclosed. The district court denied the

motion. Following a non-evidentiary hearing, the court concluded the board’s

decision was supported by substantial evidence.           The court denied FBMB’s

petition.

       On appeal, FBMB does not contest the board’s authority to vacate and close

the road. See Iowa Code §§ 306.4(2) (2017) (“Jurisdiction and control over the

secondary roads shall be vested in the county board of supervisors of the

respective counties.”), .10 (granting county board of supervisors authority “on its

own motion, to alter or vacate and close any such highway . . . over which said

agency has jurisdiction and control”). Nor does FBMB challenge the statutorily

authorized procedures associated with a “vacation and closing” proceeding. See

id. §§ 306.11, .12.1 FBMB simply contends the board’s decision was unsupported

by substantial evidence and was unreasonable, arbitrary, and capricious.


1
  FBMB lacked formal notice of the board proceeding but “does not contend that it lacked
[actual] notice of the proposed vacation and public hearing.”
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       In response, the board suggests district court review of its decision was

foreclosed. The board raises the issue in passing and without having filed a cross-

appeal from the district court’s denial of its dismissal motion.      Nonetheless,

because the issue could implicate the court’s subject matter jurisdiction, we begin

there. State v. Mandicino, 509 N.W.2d 481, 482 (Iowa 1993) (“Want of subject

matter jurisdiction can be raised at any time.”).

II.    Subject Matter Jurisdiction

       “Subject matter jurisdiction refers to the power of a court ‘to hear and

determine cases of the general class to which the proceedings in question belong,

not merely the particular case then occupying the court’s attention.’” Id. (citation

omitted). “[S]ubject matter jurisdiction . . . cannot be waived by consent, waiver,

or estoppel.” Id. at 483. “When a lower court lacks the authority to exercise its

subject matter jurisdiction so as to adjudicate the merits of a claim, issue, or

question, an appellate court also lacks the power to determine the merits of the

claim, issue, or question presented to the lower court.” Osage Conservation Club

v. Bd. of Supervisers, 611 N.W.2d 294, 299 (Iowa 2000) (quoting Ferguson v.

Union Pac. R.R., 601 N.W.2d 907, 912–13 (Neb. 1999)). The absence of subject

matter jurisdiction may be raised at any time, including on the court’s own motion.

Id. at 296–97; Mandicino, 509 N.W.2d at 482.

       Iowa Code section 306.16 states:

              After the hearing, the agency which instituted the proceedings
       and conducted the hearing shall enter an order either dismissing the
       proceedings, or vacating and closing the road, part thereof, or
       crossing, in which event it shall determine and state in the order the
       amount of the damages allowed to each claimant. The order thus
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       entered shall be final except as to the amount of the damages unless
       the order is rescinded as provided in section 306.17. . . .

(Emphasis added.)

       The district court considered section 306.16 in ruling on the board’s

dismissal motion.     After examining Bricker v. Iowa County, Iowa Board of

Supervisors, 240 N.W.2d 686 (Iowa 1976), an Iowa Supreme Court opinion that

raised the finality language of section 306.16, the court concluded the opinion “left

open” the question of whether a road vacating/closure decision could be reviewed

by certiorari. The court “proceed[ed] under the assumption that a certiorari action

may be used to contest the board’s decision to vacate the subject road.”

       In Bricker, as in this case, the plaintiffs challenged the validity of a board’s

road vacating order by filing a petition for writ of certiorari. 240 N.W.2d at 688.

The Iowa Supreme Court began with section 306.16.              The court stated, “A

threshold problem is whether a board’s decision on the merits to vacate or not to

vacate is open to review by certiorari if the board has followed the statutory

procedure—as it did here.” Id. at 689. The court found it unnecessary to “now

resolve this interesting question of finality, since the result here is the same

whether or not certiorari may be used to test an order to vacate.” Id. Proceeding

to the merits, the court found substantial evidence to support the board’s decision.

The court then stated, “By so holding we do not intimate that a board’s decision on

the merits to vacate may be reviewed by certiorari notwithstanding the finality

clause.” Id.

       Bricker asked but did not answer the question whether section 306.16

foreclosed certiorari review. The court’s consideration of the merits of the board’s
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decision was an implicit concession that section 306.16 does not implicate the

court’s subject matter jurisdiction to consider a road closure decision. Cf. Osage,

611 N.W.2d at 299 (“We conclude that by failing to comply with the statutorily

required public notice and hearing requirements of Iowa Code sections 335.6 and

335.7, the Board did not have subject matter jurisdiction to approve the application

for rezoning of Sunset Acres Subdivision.”).      We conclude the district court

possessed subject matter jurisdiction to consider FBMB’s certiorari challenge to

the road vacating/closure decision. And, because the district court possessed

subject matter jurisdiction, so do we.

       That said, a court may lack authority to “entertain a particular case.”

Mandicino, 509 N.W.2d at 482. “[A]n impediment to a court’s authority can be

obviated by consent, waiver or estoppel.” Id. Failure to argue an issue or cite law

may constitute waiver of an issue. Iowa R. App. P. 6.903(2)(g)(3). The board’s

mention of section 306.16 on appeal, without argument or cross-appeal, amounts

to a waiver of any challenge to the court’s authority to consider the merits of the

board’s decision. We turn to the merits.

III.   Board’s Decision to Vacate Road

       The board vacated and closed:

       Part of County Road #36 (Nutmeg Avenue) in English River
       Township in Sections 17 & 20, Township 77 North, Range 7 West,
       more particularly described as that portion of road beginning at a
       point on the centerline of Nutmeg Avenue and the South line of the
       NW 1/4 NW 1/4 of Section 20, Township 77 North, Range 7 West,
       thence Northerly and Easterly along the centerline of said road to a
       point on the centerline of the East-West portion of said road and 66
       feet West of the former Easterly Right of Way line of the previously
       vacated North-South portion of said road recorded in Book 2013,
       Page 3874 in the office of the Washington County Recorder.
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In doing so, the board found the road was “no longer required for public access.”

FBMB contends the finding is not supported by substantial evidence. FBMB also

argues a board member’s characterization of the road as a “dead end” is not

supported by substantial evidence.         FBMB cites case law articulating the

substantial evidence standard in the context of review of agency action under the

Iowa Administrative Procedure Act. See Iowa Code ch. 17A.

       The board responds that the Iowa Administrative Procedure Act does not

apply to its decisions and “Iowa Code section 306.10 does not specifically

authorize review pursuant to chapter 17A.” We agree the board is not a “unit of

the state” and accordingly, the substantial evidence standard of judicial review set

forth in the Administrative Procedure Act is inapplicable.           See Iowa Code

§§ 17A.2(1) (defining “agency”), .19(10)(f)(1) (defining substantial evidence).

       That said, the board’s decision is subject to substantial-evidence review

under the certiorari standard. See Bricker, 240 N.W.2d at 689 (“[C]ertiorari is

therefore available . . . when a decision is without substantial evidentiary support.”).

Substantial evidence is “any competent evidence.” Id. (citation omitted).

       Minutes of board proceedings reveal the following pertinent facts. The

board was presented with three options to deal with a portion of the road that

abutted private property on the south end of the historic bridge. The county

engineer advised the board that one option would be to “completely vacat[e] the

road, resulting in the land being returned to private ownership and completely

eliminating county maintenance responsibility as well as county access.” Twenty-

three members of the public addressed the board. Most opposed vacating the

road, but two favored closure. The matter was tabled for several weeks.
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       When the board considered the issue again, the county engineer explained

that a portion of the road adjacent to the bridge had already been vacated and the

land that constituted the road was now private property. Record was also made

of the board’s previous determination not to allow the bridge to “serve as part of

the Washington County transportation system,” the county’s sale of the bridge to

a private group, the county’s prior relinquishment of “the right-of-way and

responsibility due in part to repair costs as well as liability,” and landowners’ limited

access to the bridge for a period of decades.

       A board member opposed to vacating the road essentially acknowledged

existing restrictions on public access to the area by referring to trespassers in the

vicinity. He declined to support the resolution vacating the road not because it

would limit public access to the bridge but because he wished to leave the county’s

options open for future development of a trail.

       In sum, substantial evidence supports the board’s finding that the road was

no longer needed for public access and substantial evidence supported the board

member’s characterization of the road as a dead end. See Bricker, 240 N.W.2d at

689 (“The board was not required to accept petitioners’ evidence, and its decision

to vacate was amply supported by the information before it.”). As the court stated

in Bricker, the petitioners “made a good case before the board” but “the board had

information which pointed in the opposite direction.” Id. The board considered

privacy, safety, littering, and trespassing concerns and the opinion of the

Washington County Engineer that the county lacked money to conserve the

property and would need an easement from adjoining landowners to “run a trail

through there.” No illegality was shown.
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      FBMB’s argument that the board’s decision was unreasonable, arbitrary,

and capricious “is in essence founded on their claim that the board’s decision lacks

evidentiary support.” Bricker, 240 N.W.2d at 689. Our conclusion that the board’s

decision has evidentiary support resolves the issue.

      We affirm the district court’s annulment of the writ of certiorari.

      AFFIRMED.
