                   IN THE COURT OF APPEALS OF IOWA

                              No. 4-018 / 13-0118
                              Filed April 30, 2014

LARRY ARNBURG,
    Plaintiff-Appellant,

vs.

EARLHAM BOARD OF ADJUSTMENT,
CITY OF EARLHAM, IOWA,
      Defendant-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Madison County, Gregory A. Hulse,

Judge.



       Larry Arnburg appeals the district court ruling granting the Earlham Board

of Adjustment’s motion for summary judgment. REVERSED AND REMANDED.



       Kimberley Baer and Maureen Cosgrove of Baer Law Firm, Des Moines,

for appellant.

       Jason Palmer and Catherine Chargo of Bradshaw, Fowler, Proctor &

Fairgrave, P.C., Des Moines, for appellee.



       Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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BOWER, J.

           Larry Arnburg appeals the district court ruling granting the Earlham Board

of Adjustment’s motion for summary judgment.                   Arnburg contends the Board

acted illegally under Iowa law when granting a zoning variance to Farmer’s

Cooperative Company for the purpose of building grain bins on a piece of land

adjacent to a similar operation. We find a genuine issue of material fact exists

concerning whether the Board allowed for expansion of a nonconforming use and

whether the Board impermissibly relied upon a nonconforming use when

justifying the variance. Accordingly, we reverse and remand.

I.         Background Facts and Proceedings

           Farmer’s Cooperative Company (FC) owns and operates a number of

grain bins in the city of Earlham and temporary grain storage facilities outside the

city limits. FC’s existing facilities predate Earlham’s zoning ordinances and do

not conform to existing height and set-back requirements.

           FC purchased land immediately adjacent to its existing operation, where it

intends to build additional grain bins. FC filed an application to have the land

rezoned from R-Residential and C-Commercial to “M,” an industrial designation.1

The zoning change was approved.

           On September 9, 2011, FC2 requested a building permit, which was

denied by the city zoning administrator on October 11, 2012, because the

proposed bins did not comply with the present height or set-back requirements.

On October 19, 2012, FC appealed the decision to the Earlham Board of


1
     FC’s existing facilities are the only other “M” zoned areas within the city limits.
2
     Danny Faust, acting on behalf of FC, also requested the building permit.
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Adjustment (Board) requesting a variance.       The variance, if approved, would

allow FC to construct grain bins with no set-back requirements at a height in

excess of existing limits. The Board held a hearing and approved the variance.

Following the Board’s action, Arnburg filed a petition for a writ of certiorari

claiming the Board acted illegally. Upon the request of the Board, the district

court remanded the case to allow the Board to hold an additional hearing and

make written findings of fact.

       The rehearing was held on March 21, 2012. FC presented evidence on

the need for a variance including economic data on the profitability of conforming

structures. FC also presented evidence of an agreement with the city showing

the city intended to ease the concerns of neighboring residents. Local residents

informed the Board of existing problems with grain dust covering nearby homes

and sidewalks, and discussed problems with nearby streets due to heavy truck

traffic serving the facility. They also alleged the proposed bins would create a

safety hazard due to both their height and proximity to the lot lines.

       The Board issued an oral and written decision granting the variance. The

Board found the concerns of residents had been addressed by an agreement

between the city and FC, and decided the bins would not alter the character of

the city. The Board also found FC’s economic analysis proved the land could not

be used profitably without the variance. Making other factual determinations,

which will be discussed as necessary, the Board followed the outline of the

statutory requirements for granting a variance and approved FC’s application.
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       Returning to the district court, Arnburg filed discovery requests intended to

prove the Board acted illegally. While his requests were outstanding, the Board

filed a motion for summary judgment that was granted by the district court on

December 24, 2012.

II.    Scope and Standard of Review

       We review a district court’s decision on a motion for summary judgment

for errors at law. Boelman v. Grinnell Mut. Reins. Co., 826 N.W.2d 494, 500–01

(Iowa 2013). “The district court properly grants summary judgment when the

moving party demonstrates there is no genuine issue of material fact and that he

or she is entitled to judgment as a matter of law.” Id. at 501. We review the

matter in the light most favorable to the non-moving party, affording every

legitimate inference reasonably deduced from the evidence.             Id.   Where

reasonable parties could disagree on the resolution of an issue, a fact question is

found. Id. Because the issue before us is the district court’s grant of the motion

for summary judgment, we do not review the Board’s decision on the merits, but

rather we determine whether genuine issues of material fact exist necessitating a

trial on the merits.

III.   Discussion

       Arnburg raises a number of issues, claiming the Board exceeded its

authority by granting the variance despite substantial evidence to the contrary.

He also claims the court erred in granting summary judgment while he had

outstanding requests for discovery.
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       Under Iowa Code section 414.12(3) (2011), a board is empowered to

grant a variance under certain circumstances. To legally grant the variance, a

board must determine the variance would not be contrary to the public interest

and literal enforcement of provisions of the ordinance would result in an

unnecessary hardship. Iowa Code § 414.12(3). The board must also determine

the spirit of the ordinance shall be observed and substantial justice done. Id.

       The city of Earlham has further imposed limitations on the Board’s power

to grant a variance. Under the municipal code, to grant a variance the Board

must find that:

               a. Special conditions and circumstances exist which are
       peculiar to the land, structure or building involved, and which are
       not applicable to other lands, structures or buildings in the same
       district.
               b. Literal interpretation of the provisions of this Zoning
       Ordinance would deprive the applicant of rights commonly enjoyed
       by other properties in the same district under the terms of this
       Zoning Ordinance.
               c. The special conditions and circumstances do not result
       from the actions of the applicant.
               d. Granting the variance requested will not confer on the
       applicant any special privilege that is denied by this Zoning
       Ordinance to other lands, structures or buildings in the same
       district. No nonconforming use of neighboring lands, structures or
       buildings in the same district, and no permitted use of lands,
       structures or buildings in other districts shall be considered grounds
       for the issuance of a variance.

Earlham Code of Ordinances §165.22(3)(A)(1).           The municipal code also

prohibits the expansion or enlargement of any nonconforming building, or the

expansion or extension of any nonconforming use of land beyond the area

occupied at the time the municipal code was enacted.            Earlham Code of

Ordinances § 165.42(3).
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      A.     Expansion of Nonconforming Use

      Arnburg contends the Board acted illegally by allowing for expansion of a

nonconforming use, in violation of the local zoning ordinance.       The parties

disagree as to whether the existing bins are a nonconforming use, and whether

the variance expands a nonconforming use.

      A nonconforming use is a use that was lawful before the zoning ordinance

went into effect and continued thereafter. Perkins v. Madison Cnty. Livestock &

Fair Ass’n, 613 N.W.2d 264, 270 (Iowa 2000). The purpose of a prohibition

against expansion of a nonconforming use is to protect against the growth of “a

pre-existing aggravation” that “survives as a matter of grace.”     Stan Moore

Motors, Inc. v. Polk Cnty. Bd. of Adjustment, 209 N.W.2d 50, 53 (Iowa 1973).

      The Board was prohibited from both expanding a nonconforming use and

from considering a nonconforming use when making other necessary

determinations during the variance process.      Earlham Code of Ordinances §

165.42(3). Arnburg contends the Board erred in both respects, and the district

court determined no genuine issue of material fact existed on the matter.

Because we review a denial of a motion for summary judgment, we need not

determine whether the Board in fact relied upon a nonconforming use, but

whether a genuine issue of material fact exists on the issue. This requires us to

consider two points: (1) was there an existing nonconforming use, and if so; (2)

did the Board expand or rely upon it in granting the variance.

      Issues of conformity are limited only to height and set-back restrictions.

The district court concluded, “There is no question that a grain elevator is a
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permitted use in an industrial zone.” In conclusory language, the district court

went on to state: “Plaintiff’s argument that [FC]’s reliance on the Applicant’s

nonconforming use of the adjoining property to justify the variance is misplaced.

The Court concludes that the Board did not act illegally in considering the

Applicant’s use of its adjoining land.” It is unclear whether the district court was

concluding there is not a nonconforming use, or the Board did not rely upon a

nonconforming use in making its decision, or the Board thought it was legal to

rely upon a nonconforming use to justify the variance. The Board claims it relied

upon the fact a grain elevator/bin is being operated next-door, which is not a

nonconforming use, but did not rely upon existing height or set-back violations.

       Upon a review of the record, we find a genuine issue of material fact exists

concerning whether the Board relied upon a nonconforming use when justifying

the variance. In its “findings of fact,” the Board found the variance would not

create a new or different business, but would only expand the business itself. By

relying on the nature of the business itself, rather than the height or location of

the physical structures, the Board is not relying upon a nonconforming use. A

genuine issue of material fact exists because the Board also found the bins, as

nonconforming structures, have been in place since 1959 and 1960. The Board

further explained the variance would not alter the essential character of the

neighborhood because FC “also has bins that exceed the local ordinance

standards presently.” We find a genuine issue of material fact exists and the

ruling of the district court granting summary judgment must be reversed. We
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vacate the summary judgment ruling and remand for further proceedings

consistent with this opinion.

       REVERSED AND REMANDED.
