                     IN THE COURT OF APPEALS OF IOWA

                               No. 3-1154 / 13-0328
                               Filed March 26, 2014


CATHERINE OEHL, et al.,
    Plaintiffs-Appellants,

vs.

AMANA COLONIES LAND USE
DISTRICT BOARD OF TRUSTEES,
     Defendant-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Iowa County, Patrick R. Grady,

Judge.



       Plaintiffs appeal from a ruling dismissing their declaratory judgment action.

AFFIRMED.



       Wallace L. Taylor, Cedar Rapids, for appellants.

       Laura E. Bergus and John W. Hayek of Hayek, Brown, Moreland & Smith,

L.L.P., Iowa City, for appellee.



       Heard by Vogel, P.J., and Tabor and McDonald, JJ.
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MCDONALD, J.

       Appellants are aggrieved residents of the Amana Colonies who challenge

a decision of the Amana Colonies Land Use District Board of Trustees to allow

the construction of hotel, convention center, and banquet complex within the

Amana Colonies.      The district court concluded that the exclusive remedy to

challenge the Board of Trustees’ decision was by certiorari and that it lacked

jurisdiction over Appellants’ declaratory judgment action. The district court also

concluded, in the alternative, that the Board of Trustees did not act

unreasonably, arbitrarily, or capriciously in approving the development project.

We affirm the judgment of the district court.

                                          I.

       The Amana Colonies are unincorporated villages in Iowa County. In 1932,

the Amana Society, a private corporation, owned the 26,000 acres in which the

Amana Colonies are located.        Development within the Amana Colonies was

effectively managed by deed restrictions and covenants. In 1982, our supreme

court held that land use restrictions in the deeds were invalid and unenforceable.

See Amana Soc. v. Colony Inn, Inc., 315 N.W.2d 101 (Iowa 1982). The decision

effectively vitiated the informal land use control system governing development

within the Amana Colonies. In response, the legislature authorized the creation

of special land use districts for the purpose of preserving the “distinctive historical

and cultural character” of the districts so created.      See Iowa Code § 303.41

(2011). Although the statutory language authorizing the creation of land use

districts is phrased in general terms, the definition of eligible districts and
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legislative history make clear that the statute was created for the particular

purpose of allowing the residents of the Amana Colonies, collectively, to manage

development in this historically and culturally significant community in a manner

consistent with community traditions and values.

      Pursuant to the land use statute, voters in the Amana Colonies approved

the creation of the Amana Colonies Land Use District (hereinafter “ACLUD”), and

elected a seven-member Board of Trustees (hereinafter “the Board”). The Board

adopted a Land Use Plan, effective March 1, 1986, which emphasizes historic

preservation.   The Land Use Plan provides for the creation of Historic

Preservation Districts (hereinafter “HPD”). The Land Use Plan also establishes a

Historic Preservation Committee (hereinafter “HPC”) tasked with consideration of

applications for Certificates of Approval (hereinafter “COA”) for “[a]ny

construction, alteration, demolition, or removal affecting a significant exterior

architectural feature of any structure within an HPD.” The Board may issue a

COA for construction of a structure in a HPD after review and recommendation

by the HPC.

      David and Yana Cutler own and operate the Ronneburg Restaurant in

Amana within a HPD. In May 2010, the Cutlers applied for a COA to construct

an addition to their restaurant.    The proposed addition included a hotel,

convention center, and banquet complex.            The Cutlers’ application was

forwarded to the HPC for review.     The HPC approved by a vote of 4-0 the

Cutlers’ proposal and sent it to the Board, which took no immediate action and

tabled it. Over the course of the next twelve months, multiple hearings were held
                                        4



on the Cutlers’ application for a COA.      Many of the Appellants in this case,

including lead Appellant Oehl, were allowed to present their views on the Cutlers’

application.   The Cutlers submitted different versions of their proposal for

consideration to address the concerns of residents raised during the hearings on

the application.

       In the spring of 2011, the HPC received an updated application from the

Cutlers and forwarded it to the Board without a recommendation. The proposal

came before the Board on June 6, 2011, and the Board initially split 3-3 on

whether to approve the application. At the same meeting, the Board asked the

Cutlers if they would be willing to make some final changes to the proposed

addition. The Cutlers agreed to the proposed changes, and a second vote was

taken on the modified proposal. The Board voted 4-2 in favor of the application

as modified, and a COA was issued.

       All of the Appellants except one appealed the issuance of the COA to the

ACLUD Board of Adjustment. The Board of Adjustment consists of five members

appointed by the Board of Trustees with authority to make special exceptions to

the terms of the land use plan and with responsibility to hear certain appeals of

property owners aggrieved by the Board of Trustees’ action. See Iowa Code

§ 303.54. The Board of Adjustment determined that it did not have authority “to

review and overturn the essentially legislative decision of the Board of Trustees

to grant applications such as that of the Cutlers.” Approximately 70 days after

the Board of Adjustments’ decision and 105 days after the Board of Trustees’

decision, the Appellants challenged the issuance of the COA by filing this
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declaratory judgment action. The case was tried to the district court, and the

district court held the petition was improper and untimely and the claims failed on

the merits.

                                            II.

                                            A.

       Appellants contend the district court erred in concluding their challenge to

the COA was required to be made in a certiorari action, that the petition was

untimely filed, and that the district court therefore lacked jurisdiction over the

claim. We review rulings on subject matter jurisdiction for correction of errors at

law. See State v. Erdman, 727 N.W.2d 123, 125 (Iowa 2007).

       Iowa Rule of Civil Procedure 1.1401 provides “[a] party may commence a

certiorari action when authorized by statute or when the party claims an inferior

tribunal, board, or officer, exercising judicial functions, or a judicial magistrate

exceeded proper jurisdiction or otherwise acted illegally.”        “The term ‘judicial

functions’ is not here construed in a strict or technical sense.” Buechele v. Ray,

219 N.W.2d 679, 681 (Iowa 1974). Thus, “certiorari will lie if the act in question is

[also] quasi-judicial in nature.” Id. “[W]hen an activity appears to be judicial in

nature, but in reality is not, it is termed quasi-judicial.” Id.

       The Board’s issuance of the COA was a quasi-judicial function subject to

challenge by a certiorari action. A tribunal not a court exercises judicial or quasi-

judicial authority when (1) “the questioned act involves a proceeding in which

notice and an opportunity to be heard are required”; (2) “a determination of rights

of parties is made which requires the exercise of discretion in finding facts and
                                         6



applying the law thereto”; or (3) “the challenged act goes to the determination of

some right the protection of which is the peculiar office of the courts.” Wallace v.

Des Moines Indep. Cmty. Sch. Dist., 754 N.W.2d 854, 858 (Iowa 2008). While

there was notice and opportunity to be heard on the merits of the Cutlers’

application, the Board was not required to provide notice and hearing prior to

deciding whether to issue the COA. Therefore, the challenged action does not

fall within the first part of the above-stated test. However, it is clear that the

determination of the Cutlers’ rights required the exercise of discretion in finding

facts and applying the law thereto.

       We first note, “[i]t is the nature of an act, not identity of the board or

tribunal charged with its performance, which determines whether or not a

function is judicial or quasi-judicial.” Id. Thus, although the Land Use Plan states

that “approval or disapproval of a Certificate of Approval is declared to be a

legislative policy determination,” that language is not dispositive of the question.

We must look to the nature of the act regardless of the label applied to it. Here,

the Board’s action was akin to a zoning decision and was therefore quasi-judicial

in nature. See Montgomery v. Bremer Cnty. Bd. of Sup’rs, 299 N.W.2d 687, 692

(Iowa 1980) (stating that certiorari was the appropriate means to review a

Board’s decision to rezone two parcels of land from agricultural to industrial for

the purposes of development); Smith v. City of Fort Dodge, 160 N.W.2d 492,

494-95 (Iowa 1968) (finding certiorari the appropriate means to review a Board’s

decision to approve the rezoning of two properties from single family to multi-

family dwellings).
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       The conclusion that the Board’s action was quasi-judicial in nature is

bolstered by the very nature of Appellants’ challenges to the Board’s decision.

For example, Appellants contend the decision was improper because the

proposal did not contain a yard as required by the Land Use Plan. Further, they

contend, if the proposal contained a yard, it was not of the minimum size required

by the Land Use Plan.           They also contend the Board violated the “zoning

ordinance” because a hotel is not consistent with historical structures. Appellants

also argue “there are not enough parking spaces on the . . . lot to comply with the

zoning ordinance.”           Appellants also note Reynold Moessner, who was

instrumental in creating the ACLUD, testified why the application violated the

Land Use Plan. These are all complaints that the Board’s findings of fact were

incorrect and/or the Board did not apply the facts properly to the zoning

ordinance—complaints arising out of the Board’s quasi-judicial functions and not

its legislative functions.

        Not only is certiorari available to challenge judicial and quasi-judicial

action, it is the exclusive remedy to challenge this type of land use decision. See

Sutton v. Dubuque City Council, 729 N.W.2d 796, 798-99 (Iowa 2006) (finding

declaratory judgment action was improper and that certiorari was the exclusive

remedy to challenge the rezoning of property). In determining that certiorari was

the exclusive remedy to challenge a rezoning decision, the Sutton court noted:

       Although the existence of another remedy does not ordinarily
       preclude a court from granting declaratory relief, we have refused
       to apply that principle when there is another adequate remedy
       provided by law that is intended to be exclusive. City of Des
       Moines v. Des Moines Police Bargaining Unit Ass’n, 360 N.W.2d
       729, 730-31 (Iowa 1985). We have applied this principle with
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      respect to review of administrative agency action.          We are
      convinced that a similar exclusivity of remedy should exist as to the
      review of decisions of city councils or county boards of supervisors
      acting in a quasi-judicial capacity when the claimant alleges
      illegality of the action taken.


Id. at 800. The Sutton court applied this reasoning and held that the decision to

allow a development within a planned unit development “was clearly quasi-

judicial” and not a challenge to the validity of the ordinance and could be

challenged exclusively by a timely filed petition for certiorari. See id. at 798. We

conclude Sutton is controlling here.

      The cases Appellants cite for the proposition that an action for declaratory

relief is allowable are distinguishable. Keller v. City of Council Bluffs, 66 N.W.2d

113 (1954); Anderson v. City of Cedar Rapids, 168 N.W.2d 739 (Iowa 1969), Fox

v. Polk County Board of Supervisors, 569 N.W.2d 503 (Iowa 1997), and Geisler

v. City Council, 769 N.W.2d 162 (Iowa 2009), involved challenges to the validity

of ordinances or challenges to the legislative authority of a body to implement or

change ordinances.     This case, as Appellants make clear, involves only the

determination of whether the COA was issued in compliance with existing

ordinances. Where the validity of the ordinances is at issue, declaratory relief is

allowed; where only the grant or denial of a particular application is at issue,

declaratory relief is disallowed. See City of Johnston v. Christenson, 718 N.W.2d

290, 296-97 (Iowa 2006) (“While a declaratory judgment action may be properly

brought to test the validity or constitutionality of a zoning authority which is

legislative in nature, such an action ordinarily is not an appropriate method for

judicial review of administrative decisions. Accordingly, although a denial of an
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application for a permit may be reviewed in an action for declaratory relief where

the constitutionality of the zoning ordinance is being tested, a declaratory

judgment generally may not be sought to review the decision of an administrative

agent, refusing to issue a permit, where the validity of a zoning ordinance is not

being attacked.” (quoting 297 101A C.J.S. Zoning and Land Planning § 353, at

483-84 (2005)).).

       Even if the Appellants’ petition for declaratory judgment were treated as a

petition for certiorari, it was not filed for approximately 70 days after the

challenged action.    To initiate a certiorari action, “[t]he petition must be filed

within 30 days from the time the tribunal, board or officer exceeded its jurisdiction

or otherwise acted illegally.” Iowa R. Civ. P. 1.1402(3). “An untimely petition for

writ of certiorari deprives the reviewing court of subject matter jurisdiction.”

Sergeant Bluff-Luton Sch. Dist. v. City Council of City of Sioux City, 605 N.W.2d

294, 297 (Iowa 2000). Accordingly, the district court did not err in dismissing

Appellants’ action.

                                         B.

       Even assuming, however, that the challenged action was legislative in

nature and subject to review by declaratory judgment, the district court concluded

that Appellants’ claim failed on the merits. We review a declaratory judgment

tried in equity de novo. See Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa

2000). “Although we are not bound by the trial court’s factual findings, we give

them weight.” Quality Refrigerated Servs., Inc. v. City of Spencer, 586 N.W.2d

202, 205 (Iowa 1998). We agree with the district court.
                                           10



       “Zoning decisions are entitled to a strong presumption of validity.” Id. at

207.   “One challenging such a decision must show that it is ‘unreasonable,

arbitrary, capricious or discriminatory, with no reasonable relationship to the

promotion of public health, safety, or welfare.’” Id. (citation omitted). “The court

will not substitute its judgment for that of the zoning authority.” Id. “Thus, if the

reasonableness of the zoning decision is fairly debatable and the decision is

facially valid, the court will not interfere with the city’s action.” Id. at 207-08. “A

zoning decision is fairly debatable if the evidence provides a basis for a fair

difference of opinion.” Id. at 208. “It is facially valid ‘if it has any real, substantial

relation to the public health, comfort, safety, and welfare, including the

maintenance of property values.’” Id. (citation omitted)

       Appellants make a variety of arguments in support of their claim that the

Board of Trustees acted unreasonably, arbitrarily, or capriciously in issuing a

COA to the Cutlers. The record as a whole does not support the argument. The

Cutlers’ application for COA was subject to more than twelve months of scrutiny

and at least twelve public hearings. The Cutlers submitted at least four versions

of the proposal to address concerns raised during the hearings. At the final

hearing, the Board requested the Cutlers make specific final adjustments to the

development project before issuing the COA. It is clear the Board was rationally

exercising the authority granted it. See Land Use Plan § 31.36.050 (“The Board

may approve or disapprove the application and Site Plan, as reported, or may

require such changes as it deems necessary to preserve the intent and purpose

of this ordinance and the Land Use Plan.”).
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                                          III.

       Because Appellants were required to bring a certiorari claim within thirty

days of the agency’s decision, the district court was correct in determining that it

did not have jurisdiction to hear Appellants’ declaratory judgment action. Even

assuming that a declaratory judgment action was appropriate, the Board of

Trustees did not act unreasonably, inappropriately, or capriciously in issuing a

Certificate of Approval to the Cutlers.

       AFFIRMED.
