              IN THE SUPREME COURT OF IOWA
                           No. 85 / 04-1067
                           No. 86 / 04-1196

                       Filed September 29, 2006


S.A. SUTTON and FRANCINE BANWARTH,

      Appellants,

vs.

DUBUQUE CITY COUNCIL and ROYAL OAKS DEVELOPMENT CORP.,

    Appellees.
----------------------------------------------------
S.A. SUTTON and FRANCINE BANWARTH,

      Appellees,

vs.

DUBUQUE CITY COUNCIL and ROYAL OAKS DEVELOPMENT CORP.,

      Appellants.


      Appeal from the Iowa District Court for Dubuque County,

Lawrence H. Fautsch, Judge.



      City and affected developer appeal from judgment voiding amendment

to zoning ordinance, asserting that action was barred by limitations;

prevailing objectors also appeal.   REVERSED ON CITY’S APPEAL;

AFFIRMED ON OBJECTORS’ APPEAL.



      David L. Hammer and Angela C. Simon of Hammer, Simon & Jensen,

Dubuque, for S.A. Sutton and Francine Banwarth.



      Barry A. Lindahl and James A. O’Brien, Dubuque, for Dubuque City

Council.
                                  2

     Stephen J. Juergens of Fuerste, Carew, Coyle, Juergens & Sudmeier,

P.C., Dubuque, for Royal Oaks Development Corp.
                                              3

CARTER, Justice.

       The city council of the City of Dubuque, in its representative capacity,

and Royal Oaks Development Corporation, an affected real estate developer,

appeal from a judgment that voided an amendment to the zoning

ordinances of the City of Dubuque. 1 Because there is a community of

interest between appellants, we will proceed as if the City were the only

appealing party. The appellees are S.A. Sutton and Francine Banwarth, two

objectors to the zoning change.

       The basis for the district court’s decision invalidating the rezoning

action was that court’s finding that the mayor of Dubuque, whose vote was

necessary for passage of the challenged zoning change, had a disqualifying

conflict of interest. Sutton and Banwarth had advanced other grounds for

voiding the ordinance, and they appeal from the trial court’s rejection of

those assertions.        Although separately docketed, the two appeals are

considered together.         The City urges that the mayor did not have a

disqualifying conflict of interest, and it also seeks to overturn the judgment

on the ground that the present action was barred by limitations. Because

we agree with the latter claim, we reverse the judgment of the district court

on the City’s appeal. We affirm the district court’s rulings on the issues

raised in the objectors’ appeal.

       On May 8, 2003, the Dubuque City Council passed an ordinance

amending the existing zoning code by reclassifying certain described

property from a commercial recreation district to a planned unit

development (PUD) district with a residential district designation, including

a conceptual development plan. The ordinance was passed on a four-to-

three vote, with the mayor voting yes.

       1It was determined by pretrial ruling that this action, in legal effect, is against the
City, rather than council members.
                                      4

      Sutton and Banwarth initially challenged the rezoning decision with a

petition for writ of certiorari pursuant to Iowa Rule of Civil Procedure

1.1401. That action was dismissed as untimely because it had not been

brought within thirty days of the challenged action, as required by rule

1.1402(3).   They later commenced the present action for declaratory

judgment, seeking to overturn the challenged rezoning on multiple grounds.

The City asserted plaintiffs’ lack of standing and further asserted that their

claims were barred by limitations because certiorari was the exclusive

remedy and the time limitations for initiating a certiorari challenge had not

been met. The district court rejected the City’s standing and timeliness

challenges. It rejected all of Sutton’s and Banwarth’s challenges to the

ordinance except their contention involving a disqualifying conflict of

interest. Following a trial on that issue, the district court found that the

mayor, whose vote was decisive, had a disqualifying conflict of interest

because of anticipated real estate commissions that he or his real estate

agency might enjoy as a result of the project that was provided for in the

PUD zoning plan.

      I. The City’s Appeal.

      The City contends that Sutton’s and Banwarth’s claims of illegality
were required to be presented by certiorari and were barred by the time

limit imposed in Iowa Rule of Civil Procedure 1.1402(3). Our decisions have

recognized that certiorari may be a proper remedy for reviewing the legality

of decisions made by city councils and county boards of supervisors in

zoning matters. Montgomery v. Bremer County Bd. of Supervisors, 299

N.W.2d 687, 692 (Iowa 1980); Smith v. City of Fort Dodge, 160 N.W.2d 492,

495 (Iowa 1968). This recognition rests on the conclusion that the action

being reviewed by certiorari is of a quasi-judicial nature.         Although

municipal zoning ordinarily involves the enactment of an ordinance, an
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action that on first blush appears to be legislative in nature, rezoning often

takes on a quasi-judicial character by reason of the process by which it is

carried out. We defined the nature of a quasi-judicial function in Buechele

v. Ray, 219 N.W.2d 679 (Iowa 1974). We stated in that case that a quasi-

judicial function is involved if the activity (1) involves proceedings in which

notice and an opportunity to be heard are required, or (2) “a determination

of rights of parties is made which requires the exercise of discretion in

finding facts and applying the law thereto.” Buechele, 219 N.W.2d at 681.

Similar criteria were expressed in Curtis v. Board of Supervisors, 270 N.W.2d

447, 449 (Iowa 1978).

      The Washington Supreme Court has applied the following principles

in determining whether zoning activities are quasi-judicial in character:

             Zoning decisions may be either administrative or
      legislative depending upon the nature of the act. . . .
            . . . [W]hen a municipal legislative body enacts a
      comprehensive plan and zoning code it acts in a policy making
      capacity. But in amending a zoning code, or reclassifying land
      thereunder, the same body, in effect, makes an adjudication
      between the rights sought by the proponents and those claimed
      by the opponents of the zoning change.

Fleming v. Tacoma, 502 P.2d 327, 331 (1972). The Washington court then

set forth a helpful recital of the factors that will render rezoning decisions

quasi-judicial in character. Those factors include (1) rezoning ordinarily

occurs in response to a citizen application followed by a statutorily

mandated public hearing; (2) as a result of such applications, readily

identifiable proponents and opponents weigh in on the process; and (3) the

decision is localized in its application affecting a particular group of citizens

more acutely than the public at large. Id. All of the factors identified by the

Washington court in Fleming come into play in the present conflict, a

circumstance that leads us to the conclusion that the action of the city
                                             6

council being challenged in the present case was quasi-judicial in character.

As such, a challenge to the legality of the action taken was subject to review

by certiorari.

       The quasi-judicial character of municipal rezoning is particularly

evident in matters involving PUD zoning. The Florida appellate court in Hirt

v. Polk County Board of Commissioners, 578 So. 2d 415 (Fla. Ct. App. 1991),

discussed this distinction as follows:

       [C]reating zoning districts and rezoning land are legislative
       actions, and . . . trial courts are not permitted to sit as “super
       zoning boards” and overturn a board’s legislative efforts. . . .
               ....
              The planned unit development concept varies from the
       traditional concept of zoning classifications. It permits a flexible
       approach to the regulation of land uses. Compliance must be
       measured against certain stated standards. . . .
              [S]ince the Board was called upon to review an
       interpretation and application of an ordinance . . . and the
       ordinance was not challenged per se, the Board's decision was
       “clearly quasi-judicial.”

Hirt, 578 So. 2d at 417 (citations omitted) (emphasis added). 2                         The

paramount issue for our consideration is whether the availability of

certiorari review precluded Sutton and Banwarth from raising their

challenge to the rezoning in a declaratory judgment action filed after the
time for seeking certiorari review had expired. For reasons that we will

discuss, we hold that it did.

       The argument that the City urges in support of its timeliness

challenge to the present action received sympathetic consideration from the


       2A leading authority on zoning law describes planned unit development zoning as a
process that “allows [a] municipality to control the development of individual tracts of land
by specifying the permissible form of development in accordance with the city’s PUD
ordinance. . . . The planned unit development process provides more flexibility to
municipalities than does traditional Euclidean zoning.” 2 R. Anderson, American Law of
Zoning 3d § 11.12 (1986). Approval of such zoning requires a finding that the proposed
development qualifies under the provisions of the ordinance authorizing PUD zoning.
                                     7

district court. That court’s reaction to this timeliness challenge was as

follows:

      It is hard to understand why a litigant should be able to use a
      procedure of general application (declaratory judgment) as an
      alternative to a procedure specifically designed for challenging
      the legality of actions of governmental bodies (certiorari) and
      thereby avoid the time limit on certiorari actions. This path
      vitiates the 30-day time limit created by I.R.C.P. 1.1402(3) and
      defeats the public policy considerations noted in Sergeant Bluff-
      Luton [School District v. City Council of Sioux City, 605 N.W.2d
      294 (Iowa 2000)], favoring prompt resolution of challenges to
      city decisions. Nevertheless, the Supreme Court specifically
      said in Fox [v. Polk County Board of Supervisors, 569 N.W.2d
      503 (Iowa 1997)], that certiorari is not an exclusive remedy and
      that declaratory judgment can also be used to raise legality
      issues.

The City urges on this appeal that the same policy considerations discussed

by the district court should convince us to apply the short statute of

limitations provided for certiorari actions. Sutton and Banwarth urge the

affirmance of the district court’s ruling on this issue based on our

recognition in Fox and in Bormann v. Kossuth County Board of Supervisors,

584 N.W.2d 309, 313 (Iowa 1998), that a declaratory judgment is an

alternative procedure for challenging the illegality of municipal zoning. We

are satisfied that our decisions in Fox and Bormann do not control the

present dispute.
      The dispute in Fox involved a petition in four counts. Counts I and III

were requests for certiorari review of county board of supervisors zoning

decisions. Counts II and IV were actions for declaratory judgment. Count

IV challenged various aspects of the zoning decision. Count II asserted that

the zoning constituted a taking without compensation. The district court

dismissed Counts II and IV on the ground that certiorari was the exclusive

remedy to raise the matters plaintiff sought to litigate. On the certiorari

counts, the district court ruled in favor of the county board. We affirmed
                                      8

the latter ruling on appeal. With regard to the declaratory judgment counts,

we stated that the declaratory judgment procedure was an alternative

means of raising the challenges advanced in both Counts II and IV. We

held, however, that the claim of Count IV duplicated the claims presented in

the certiorari counts and should meet a similar fate. We remanded Count

II, the taking claim, for further proceedings in the district court.

      Our treatment of the taking claim in Fox is consistent with our

treatment of a similar claim in Bormann in which we allowed a taking claim

to proceed by declaratory judgment. The rationale for that determination in

both Fox and Bormann is that the taking claims involved an unlawful

application of the ordinance to a particular property owner and not an

illegal act in connection with the enacting of the ordinance. We do not

retreat from our treatment of the taking clause issues in Fox and Bormann.

We do retreat, however, from our conclusion in Fox that Count IV, which

duplicated the illegality challenges raised in the certiorari counts, could be

asserted by means of a declaratory judgment action.

      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 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. We clearly stated that this was the case in Lewis Investments, Inc. v.

City of Iowa City, 703 N.W.2d 180, 185 (Iowa 2005). We also applied this
                                      9

principle in an analogous context in Sergeant Bluff-Luton School District v.

City Council of Sioux City, 605 N.W.2d 294 (Iowa 2000).

      In Sergeant Bluff-Luton, the district court concluded that the inclusion

of certain property in an urban renewal project was illegal and that,

consequently, a tax levy based on such inclusion was also illegal. The

district court sustained a writ of certiorari and also granted a declaratory

judgment that the tax levy was a nullity. On appeal, we found that the

certiorari action had not been filed in a timely manner and ordered that

action be dismissed.     With regard to the school district’s request for

declaratory judgment we stated:

      [W]e conclude that the district court erred in deciding that the
      taxes levied were illegal. This is because the legality of the
      taxes levied does not exist independent from the city’s 1994
      decision to include Virginia Meadows in the urban renewal
      project, which is the alleged illegal action that is the subject of
      the school district’s certiorari petition. . . .
             . . . [T]here are important public policy reasons for
      limiting the time during which a party can challenge city
      decisions and resulting regular tax levies. City officials must
      be able to prepare budgets and levy taxes for an appropriate
      time period, based upon established figures and past decisions,
      without the threat of later challenges to the legality of such
      decisions that are made after [the statutory limit for bringing
      certiorari actions has] run.

Sergeant Bluff-Luton, 605 N.W.2d at 298.          Equally important policy

considerations militate in favor of a short period of limitations in

challenging rezoning based on some claim of illegality in the enactment of

the ordinance. We hold that certiorari was the proper and exclusive remedy

for asserting Sutton’s and Banwarth’s conflict-of-interest challenge to the

PUD zoning. As a result of this conclusion, we need not consider other

challenges raised by the City to the district court’s decision.
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      II. The Appeal by Sutton and Banwarth.

      In their appeal, Sutton and Banwarth assert that the district court

erred in rejecting other challenges that they made to the PUD rezoning. In

these challenges they assert that the rezoning process (1) involved a

violation of the open meetings law, (2) served to unlawfully interfere with a

publicly dedicated park, (3) failed to comply with ordinance requirements

for off-street parking, (4) was contrary to the city’s comprehensive plan, and

(5) was the result of arbitrary and capricious action in its passage.

      Rather than determine whether any of these claims could be brought

by means other than certiorari, we have reviewed each claim on the merits

and are satisfied that the district court’s ruling on each of these issues was

correct.

      Based on the conclusions we have reached in Division I of this

opinion, we hold that Sutton’s and Banwarth’s action in the district court

was untimely and must be dismissed on that ground.

      REVERSED ON CITY’S APPEAL; AFFIRMED ON OBJECTORS’

APPEAL.
