                   IN THE COURT OF APPEALS OF IOWA

                            No. 3-1122 / 13-0775
                            Filed February 5, 2014


RICKIE ALLEN SUITER and DARLENE MARIE SUITER,
     Plaintiffs-Appellants,

vs.

THE CITY COUNCIL OF THE CITY OF PRINCETON, IOWA,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.



      The plaintiffs appeal from the district court’s ruling entering summary

judgment in favor of the defendant. AFFIRMED.




      John T. Flynn of Brubaker, Flynn & Darland, P.C., Davenport, for

appellants.

      Michael C. Walker and Samuel R. Bailey of Hopkins & Huebner, P.C.,

Davenport, for appellee.



      Heard by Potterfield, P.J., and Doyle and Bower, JJ.
                                             2


DOYLE, J.

       Rick and Darlene Suiter appeal from the district court’s ruling entering

summary judgment in favor of the City Council of the City of Princeton (“the City”)

on their petition for writ of certiorari, in which the Suiters claimed certain action of

the City was illegal. We affirm.

I.     Background Facts and Proceedings

       The Suiters own riverfront property in Princeton.               Their property is

bounded on the east by the Mississippi River and on the west by South River

Drive, a north-south street. At issue in this appeal is the City’s action concerning

a parcel of “undeveloped green space” that abuts the Suiters’ property to the

north. This parcel is also bounded on the east by the Mississippi River and on

the west by South River Drive.1           The parcel is zoned “R-1 Single Family

Residential.” A rudimentary survey2 of the property is shown below:




1
  Vine Street is an east-west street located to the west of River Drive. The parcel is
located in what would be Vine Street if Vine Street were extended eastward to the
Mississippi River.
2
  This survey was submitted to the district court as exhibit 26. We have altered it slightly
to omit several geographical references irrelevant for our purposes.
                                        3




      There is some history between the Suiters and the City, and this is not the

first time these parties have appeared before this court in litigation over the

disputed property.   In Suiter v. City of Princeton, No. 01-1314, 2003 WL

1785903, at *1 (Iowa Ct. App. Apr. 4, 2003), we laid out the following factual

background:

             The Suiters purchased their tract of property in 1994. Rick
      Suiter testified that he knew since 1994 that he did not have a deed
      conveying to him title to the real estate running all the way up to the
      southern boundary of Dawson’s property. The Suiters, Dawson,
      and other neighbors used the disputed tract. In 1992 the City
                                           4


       considered the disputed tract for potential use as a small park. In
       early to mid-2000 the City again discussed turning the disputed
       tract into a public park. The City then put up an orange barricade
       on the disputed tract.
               The Suiters filed a petition for quiet title of real estate and
       requested a temporary injunction. The trial court ruled in favor of
       the City and quieted title to the disputed tract in the City. The trial
       court ruled that (1) the disputed tract is not subject to the public
       trust doctrine, (2) the doctrine of acquiescence is not applicable,
       (3) the Suiters have shown no affirmative actions by the City
       indicating an intent to abandon the disputed property, and (4) the
       Suiters failed to present clear and convincing evidence to establish
       their claim to the disputed property by equitable estoppel.

In that appeal, we addressed the Suiters’ claims that the district court erred in:

       (1) failing to find that the City has acquiesced in their claim to the
       property and is estopped from dispossessing them from the
       property and failing to quiet title in them, (2) failing to grant them an
       injunction prohibiting the City from dispossessing them from the
       disputed property, and (3) quieting title to the disputed tract in the
       City.

Id. at *1. We affirmed the district court. Id. at *4.

       In September 2012, the City adopted Resolution No. 2012-20, declaring

the disputed property “shall from this day forward be used as a public park and/or

green space in accordance with the permitted use under the R-1 zoning district.”

       The Suiters filed a petition for writ of certiorari, claiming the City’s action in

adopting Resolution No. 2012-20 was illegal.3           The City filed a motion for

summary judgment, alleging there was no genuine issue of material fact and that

it was entitled to judgment as a matter of law. Following a hearing, the district

court granted the City’s motion for summary judgment, finding the City’s passage




3
 Although the Suiters initiated this proceeding again claiming ownership of the disputed
property, they have since abandoned that aspect of their claim. We find it prudent to
acknowledge the morphing nature of the Suiters’ claims throughout the instant
proceeding, and observe their allegations seem, at times, to be conflicting.
                                         5


of Resolution No. 2012-20 was proper. The Suiters appeal. Additional facts will

be discussed below.

II.    Standard of Review

       We review the district court’s grant of summary judgment for correction of

errors at law. See Sallee v. Stewart, 827 N.W.2d 128, 132 (Iowa 2013). A party

is entitled to summary judgment when the record shows no genuine issue of

material fact and the moving party is entitled to a judgment as a matter of law.

See Iowa R. Civ. P. 1.981(3). The burden is on the moving party to demonstrate

it is entitled to judgment as a matter of law, and we view the evidence in the light

most favorable to the nonmoving party. See Sallee, 827 N.W.2d at 132.

III.   Nature of Resolution No. 2012-12

       The Suiters raise a number of claims on appeal, the bulk of which relate to

their contention that the City acted illegally in adopting Resolution No. 2012-20,

which they characterize as an “ordinance” that constituted a change to the zoning

map and comprehensive plan of the City.             The district court, however,

determined Resolution No. 2012-20 was a “resolution.” Because the nature of

Resolution No. 2012-20 is dispositive to many of the Suiters’ claims, we begin

with that issue.

       A resolution is defined as “a council statement of policy or a council order

for action to be taken,” whereas an ordinance is defined as “a city law of a

general and permanent nature.” Iowa Code §§ 362.2(21), 362.2(16) (2011). In

comparison, “[a] ‘resolution’ is something less formal than an ‘ordinance,’ and,

generally speaking, is a mere expression of the opinion or mind of the council

concerning some matter of administration coming within its official cognizance.”
                                          6

Sawyer v. Lorenzen & Weise, 127 N.W. 1091, 1093 (Iowa 1910). In other words,

a resolution addresses matters of the city’s administration, but an ordinance

addresses the city’s legislative obligations.4 See id.; compare Bryan v. City of

Des Moines, 261 N.W.2d 685, 687 (Iowa 1978) (setting educational requirements

for police officers via resolution); and Murphy v. Gilman, 214 N.W. 679, 681

(Iowa 1927) (fixing wages of firefighters via resolution and reciting other

examples of city action via enactment of resolutions, including: purchasing fire

department apparatus, constructing a sewer, accepting a dedication, fixing the

amount of a license fee previously authorized to be imposed, and ordering street

improvements), with Hanna v. Rathje, 171 N.W.2d 876, 879 (Iowa 1969)

(changing zoning of property via ordinance); City of Des Moines v. Fowler, 255

N.W. 880, 883 (Iowa 1934) (upholding ordinance requiring permit from the City’s

health department to sell milk); and G.W. Mart & Son v. City of Grinnell, 187

N.W. 471, 472 (Iowa 1922) (upholding ordinance requiring licenses for certain

businesses).

       Prior to these proceedings, the City adopted a comprehensive plan

designating land uses for City property. The disputed property was zoned “R-1

Single Family Residential,” or low density residential.          The City’s zoning

ordinance allows for public or private parks in R-1 residential zoning districts.


4
 For example, the Iowa Supreme Court has explained:
              The establishment of a fire department is doubtless a legislative
       act, and such as is required to be by ordinance. It is legislation of a
       permanent character. But the fixing of the compensation to be paid its
       members is a matter of administrative exercise of a power. What is a
       proper compensation may depend upon many changing conditions, which
       have to be met from time to time, and may properly be provided for in a
       less permanent way than by ordinance.
Murphy v. Gilman, 214 N.W. 679, 681 (Iowa 1927).
                                          7


Specifically, article XII, section 12.3(A)(2) of the City’s zoning ordinance includes

the following “permitted use” for “R-1 Single Family Residential” zoned property:

       Public or private parks, playgrounds, golf courses, and other
       outdoor recreational facilities which are commonly, but not
       necessarily, operated on a non-profit basis: however, amusement
       parks, golf-driving ranges, golf miniature putting courses, normally
       operated for profit and imploring manufactured or constructed
       facilities of an unnatural or non-environmental design shall be
       excluded.

(Emphasis added). Further, “Map 4.2a” in the record, entitled “Proposed Land

Use,” depicts the property as reserved for “Park/Recreation.”

       In September 2012, pursuant to its authority under the zoning ordinance,

the City adopted Resolution 2012-20 designating the disputed property as a

pocket park.

       Under this record, we find no error in the court’s determination that “when

the City passed Resolution No. 2012-20 to designate the [disputed] property as a

pocket park, it was performing an administrative act, not carrying out a legislative

function.” As the district court explained:

       Since there was no change to the zoning of this property, there also
       was no change to the City’s comprehensive plan.                    A
       comprehensive plan is simply a tool to administer the zoning
       ordinance. The court finds there are no disputed material facts on
       this issue. Since there was no zoning change or amendment,
       passage of Resolution 2012-20 to designate [the disputed] property
       as a pocket park was proper.

       The Suiters claim the district court erred in failing to find: (1) the City’s

passage of Resolution 2012-20 “was illegal and null and void” because the City

“failed to comply with Iowa Code section 414.4 and section 362J and City of

Princeton Zoning Ordinance section 6.1” by failing “to first publish notice of a

public hearing and to hold a public hearing on the proposed reclassification of the
                                        8


permitted use before adopting Resolution 2012-20,” (2) the City “acted illegally

when it failed to follow the procedures required for passage of an amendment to

a zoning ordinance under Iowa Code section 380.3 when it reclassified the

permitted use of the ‘disputed property,’” (3) the City’s passage of Resolution

2012-20 “was illegal because the City failed to obtain the review and

recommendation of the Planning and Zoning Commission on the proposed

reclassification as required by City of Princeton Code section 21.05(3) and City of

Princeton Zoning Ordinance section 6.1,” and (4) the City’s passage of

Resolution 2012-20 “was an illegal grant of a special use permit to the City of

Princeton to change the permitted use of the ‘disputed property’ from residential

to a park.”

       Upon our review, we observe the statutory and municipal provisions cited

in these claims apply to ordinances. As the district court acknowledged, the

Suiters’ claims only potentially hold muster if Resolution No. 2012-20 was an

ordinance.    See, e.g., Bryan, 261 N.W.2d at 687 (“Notice and publication

requirements applicable to ordinances do not extend to resolutions.”). Because

the district court concluded Resolution No. 2012-20 was a resolution, however, it

determined the Suiters’ “presumption” otherwise was “a fatal flaw” in their

claims.5

       We find no error in the court’s conclusion that based on the undisputed

facts in the record the City was not subject to statutory or municipal requirements

governing passage of ordinances when it adopted Resolution No. 2012-20. See


5
  The Suiters do not contend the City followed an improper procedure for passing a
resolution.
                                            9

id. (“Plaintiffs allege resolution 5561 is invalid because its subject matter is

appropriate only for an ordinance. . . . The authority of a city council to make

administrative decisions by resolution is well established.”). We affirm on these

issues.6

V.     Genuine Issues of Material Fact

       The Suiters claim the court erred in failing to find the existence of factual

issues as to whether: (1) the City’s adoption of Resolution No. 2012-20 was a

“reclassification of the permitted use of the ‘disputed property,’” (2) Resolution

No. 2012-20 was a “vacation” “of the public street known as Vine Street,” and

(3) their procedural due process rights were violated when the City changed the

permitted use of the disputed property without “notice of a public hearing and a

public hearing.”

       As discussed above, the undisputed facts in the record reveal the disputed

property was, and continues to be, zoned R-1 residential. A public park is a

6
   Even assuming for the sake of argument that Resolution No. 2012-20 was an
ordinance, the Suiters have offered no evidence to generate an issue of material fact as
to whether the City abused its discretion in changing the zoning of the disputed property,
and that the City’s abuse of discretion was “arbitrary, capricious, or discriminatory.” See
Perkins v. Bd. of Supervisors of Madison Cnty., 636 N.W.2d 58, 67 (Iowa 2001)
(observing the “strong presumption” of validity of City “ordinances and amendments
thereto”); Collis v. Bd. of Park Comm’rs of City of Clinton, 38 N.W.2d 635, 637 (Iowa
1949) (“With no showing of fraud, arbitrary action, or abuse of power, the city’s action in
diverting from levee to park will not be reviewed.”). In examining city action taken in a
case of “spot zoning,” the Iowa Supreme Court observed:
         If the reasonableness of the amendment is fairly debatable, we will not
         substitute our judgment for that of the Board of Supervisors. We will
         uphold the action of the Board of Supervisors if it is supported by
         competent and substantial evidence. The court should not interfere with
         the zoning decisions of the Board of Supervisors unless there is a clear
         abuse of discretion. The property owners, as challengers of the
         amendment, have the burden to show the amendment is arbitrary,
         capricious, and discriminatory.
Perkins, 636 N.W.2d at 67 (emphasis added). This summary judgment record is a far
cry from that which would generate a fact issue to support a claim that the City’s action
in this case was illegal.
                                            10


permitted use for R-1 residential property pursuant to the City’s zoning

ordinance. The disputed property was not, by the Suiters’ own admission, used

as a street.7 Finally, the Suiters admitted Rick Suiter attended the City Council’s

meeting on September 13, 2012, when the proposed resolution was discussed.8

The summary judgment record, viewed in the light most favorable to the Suiters,

reveals no genuine issue of material fact that would support the Suiters’ claims

that the disputed property was reclassified or vacated, or that the City’s

designation of the disputed property constituted a violation of their due process

rights.

VI.       Conclusion

          Upon consideration of all issues raised on appeal, whether or not

specifically addressed in this opinion, we find no error in the district court’s

determination that no genuine issues of material fact exist on the Suiters’ claims

and the City is entitled to summary judgment as a matter of law. Accordingly, we

affirm the court’s entry of summary judgment in favor of the City.

          AFFIRMED.




7
  In their responses to the City’s statement of uncontested facts, the Suiters alleged they
“use [the disputed] property for access to the Mississippi River and for other personal
use and [they] maintain and keep said property free and clear of debris from the
Mississippi River and mow said property regularly to keep the grass and weeds
trimmed.” The Suiters further alleged in their resistance to the City’s motion for
summary judgment, “Plaintiffs use [the disputed] property for quiet and private river front
recreational purposes. . . . There is no parking available at this location for any public
use of the park . . . .”
8
  Moreover, the Suiters provided no affidavits or proof that use of the disputed property
as a park would affect their rights or the public’s rights. See Collis, 38 N.W.2d at 637
(observing “the plaintiff made no allegation of private damage or that any private rights
were invaded by the diversion of the entire plot from a levee to a park”).
