Palensky v. Story County Board of Adjustment ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0249
Filed May 10, 2023
JAMES W. PALENSKY and TERESA A. SCHEIB-PALENSKY, Individually and
as Trustees of THE PALENSKY 1998 TRUST DATED FEBRUARY 25, 1998,
Petitioners-Appellants,
vs.
STORY COUNTY BOARD OF ADJUSTMENT,
Respondent-Appellee,
and
BRADLY PERKINS,
Indispensable Party.
________________________________________________________________
Appeal from the Iowa District Court for Story County, James C. Ellefson,
Judge.
Petitioners appeal the district court’s grant of summary judgment to the
respondent on their petition for declaratory relief and the annulment of their petition
for a writ of certiorari. AFFIRMED.
Gregory G.T. Ervanian and Joseph A. Cacciatore of Ervanian & Cacciatore,
L.L.P., Des Moines, for appellants.
Hugh J. Cain (until withdrawal), Brent L. Hinders, and Eric M. Updegraff of
Hopkins & Huebner, P.C., Des Moines, for appellee.
Heard by Tabor, P.J., and Schumacher and Buller, JJ.
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SCHUMACHER, Judge.
James Palensky and Teresa Scheib-Palensky (the Palenskys) appeal the
district court’s grant of summary judgment to the Story County Board of Adjustment
(Board) on the annulment of their petition for a writ of certiorari. We find (1) the
district court did not err by finding that while a conditional use permit (CUP) was
annulled, the Board’s previous proceedings were not annulled; (2) aside from the
issues of compatibility and traffic congestion, the Board substantially complied with
the requirement to make written findings of fact; (3) there is substantial evidence
in the record, with exceptions for compatibility and traffic congestion; (4) the Board
did not act illegally by failing to consider modifications to a different CUP when it
made findings regarding this CUP; (5) the Board considered the combined effects
of the two CUPs; (6) the Palenskys were not denied due process; and (7) the
Palenskys were not denied their right to petition the Board for redress of their
grievances. We affirm the decision of the district court.
I. Background Facts & Proceedings
On November 20, 2017, Bradley Perkins sought a CUP for a commercial
campground on his property in rural Story County.1 He proposed to have up to
twenty permanent cabins and ten parking spots for recreational vehicles.
Following a meeting in February 2018, the Board approved CUP08-17 for the
commercial campground. The Palenskys, who own property abutting that of
1Perkins also sought a CUP for a bed and breakfast inn and event venue that was
approved as CUP09-17. CUP09-17 is the subject of Palensky v. Story County
Board of Adjustment, No. 19-0349, 2020 WL 1879711 (Iowa Ct. App. Apr. 15,
2020). It is also the subject of Palensky v. Story County Board of Adjustment, No.
22-0242, 2023 WL _______ (Iowa Ct. App. ___, __ 2023), which is a companion
case to this appeal.
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Perkins, filed a petition for writ of certiorari. On January 30, 2019, the district court
found the Board failed to make written factual findings, annulled the CUP, and
remanded the matter back to the Board for written findings of fact.
The Board appealed the district court’s decision. We decided a companion
case, finding the Board’s decision in that case did not substantially comply with
requirements for written findings of fact. Palensky, 2020 WL 1879711, at *7. We
affirmed the district court’s ruling that the CUP was annulled and the matter was
remanded for findings of fact. Id. The Board voluntarily dismissed the appeal of
CUP08-17 on June 10, 2020.
Following the dismissal of the appeal, the case proceeded on remand to the
Board based on the district court’s ruling of January 30, 2019. On September 16,
2020, the Board made written findings of fact and again approved CUP08-17. The
Palenskys filed a petition for declaratory judgment, claiming the previous
proceedings were annulled, so the Board needed to initiate new proceedings
before it could approve CUP08-17.2 They also filed a petition for writ of certiorari,
raising the annulment issue, claiming the Board’s decision was arbitrary and
capricious, and that it was not supported by substantial evidence.
On the Palenskys’ petition for writ of certiorari, the court determined that its
previous ruling did not nullify all of the proceedings of the Board but required the
Board to make written factual findings to support the CUP. The court ruled (1) the
2 The Board filed a motion for summary judgment, asserting a declaratory judgment
was not an appropriate form of relief. The district court granted the Board’s motion.
The proceedings in district court proceeded solely on the petition for writ of
certiorari. In this appeal, the Palenskys do not challenge the grant of summary
judgment on the petition for declaratory judgment.
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current Board had authority to make factual findings; (2) the Board properly
considered the previous proceedings; (3) the Board properly considered whether
to approve the CUP; (4) the Board’s actions were not arbitrary, capricious, or
unreasonable; (5) CUP03-19.1 had no impact on CUP08-17; (6) the Board
complied with its rules for granting CUPs; (7) the Board’s proceeding did not violate
due process; (8) the Board did not violate the Palenskys’ right to petition the
government for redress of grievances; and (9) the Board’s decision was supported
by substantial evidence; and (10) the CUP did not violate ordinances or the Ames
Urban Fringe Plan.
The court found that while the Board made adequate factual findings on
most issues, the Board’s findings on the issue of compatibility were not adequate.
Compatibility is one of the criteria required for approval of a CUP under Story
County Ordinance section 90.4(1)(A). The court also determined the Board did
not make adequate factual findings on the issue of whether there was a “strong
probability” the CUP would “unduly increase congestion in the roads.” Story
County Ordinance § 90.04(2)(C). The court remanded the case to the Board for
factual findings on these two issues. The Palenskys appeal the district court’s
decision.
II. Annulment
The Palenskys claim the prior proceedings before the Board relating to
CUP08-17 were annulled by the district court’s decision of January 30, 2019. The
court stated, “It is therefore ordered the Petitioners’ Petition for Writ of Certiorari is
sustained, that the previous proceedings of the Board are annulled, and this matter
is remanded to the Board for creation of written findings of fact regarding its
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decision to approve Perkins’s CUP application.” The Palenskys assert the remand
did not overcome the annulment. They state the Board could not make findings of
fact regarding a CUP that was vacated and were required to make a new decision.
Our review of a district court ruling on a writ of certiorari is for the correction of legal
error. Earley v. Bd. of Adjustment, 955 N.W.2d 812, 816 (Iowa 2021).
The district court’s decision specifically stated, “this matter is remanded to
the Board for creation of written findings of fact regarding its decision.” Thus, the
Board needed only to make written factual findings for the decision granting
CUP08-17. The district court did not rule that the CUP proceedings needed to be
restarted.
On remand, the district court stated,
None of those [prior] decisions require anything from the Board
beyond findings of fact. This court understands that the CUPs were
annulled or vacated, but concludes that there was no intention by
any previous court to hold that the work done by the Board and the
staff and the statements of persons who appeared before the Board
somehow disappeared.
We conclude the district court did not err by finding that while CUP08-17 was
annulled, the Board’s previous proceedings were not annulled.
III. Other Issues
A. The Palenskys assert the Board failed to make adequate factual
findings to support the CUP following remand. The district court agreed with the
Palenskys that the Board made inadequate factual findings on two issues—
compatibility and traffic congestion—and remanded for further factual findings on
these issues.
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A board of adjustment is required to make written findings of fact. Palensky,
2020 WL 1879711, at *3. “[S]ubstantial compliance with the written-findings
requirement will suffice and strict compliance is not required.” Id. (citation omitted).
“[S]ubstantial compliance means the statute or rule has been followed sufficiently
so as to carry out the intent for which it was adopted.” Id. (citation omitted). These
written findings of fact are required “to enable a reviewing court to determine with
reasonable certainty the factual basis and legal principles upon which the board
acted.” Id. (citation omitted). Written factual findings are also required by Story
County Ordinance section 90.03(3)(G)(1)(a).3
We determine that aside from the issues of compatibility and traffic
congestion, the Board substantially complied with the requirement to make written
findings of fact. The Board’s other findings were sufficiently detailed “to enable a
reviewing court to determine with reasonable certainty the factual basis and legal
principles upon which the board acted.’” See id. (citation omitted). With the
exceptions noted above, we determine the Board’s factual findings meet the
requirements of Story County Ordinance section 90.03(3)(G)(1)(a).4
B. The Palenskys claim CUP08-17 is not supported by substantial
evidence. They state there were no factual findings that the CUP (1) was in accord
with the Ames Urban Fringe Plan; (2) was compatible with the character of the
immediate vicinity; (3) would adequately safeguard the health, safety, and general
3 Story County Ordinance section 90.03(3)(G)(1)(a) provides the Board “shall
establish a finding of facts based upon information contained in the application, the
staff report, and the Commission recommendation and presented at the
Commission or Board of Adjustment hearings.”
4 On the issue of new evidence, we refer to our footnote 4 in Palensky, No. 22-
0242, and reach the same conclusion in this case.
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welfare of persons residing in surrounding property; and (4) would not unduly
increase congestion in the roads. See Story County, Iowa, Code of Ordinances
§ 90.04(1), (2).
We note this case is remanded to the Board for written factual findings on
the issues of compatibility and traffic congestion. We therefore make no
determination as to whether the Board’s current findings of compatibility and traffic
congestion are supported by substantial evidence. As to the other issues, the
Palenskys raised the same concerns in the companion case, Palensky, No. 22-
0242. Without further discussion, we adopt our rulings in that companion case.
We determine there is substantial evidence in the record, with the exceptions noted
above.
C. The Palenskys contend the Board acted illegally by failing to consider
modifications to CUP09-17 when it made findings regarding CUP08-17. The
Board granted approval to Perkins for CUP09-17, which included a request for an
eight bedroom bed and breakfast inn. See Palensky, 2020 WL 1879711, at *1.
On October 16, 2019, CUP09-17 was modified by CUP03-19.1, which reduced the
number of bedrooms in the bed and breakfast inn to four but included an addition
to the building for an indoor event venue.
CUP03-19.1 has no direct bearing on CUP08-17. It modified CUP09-17,
the CUP for a bed and breakfast inn and event venue. It has no direct relationship
to CUP08-17, which is for a commercial campground. We find no error in the
district court’s conclusion, “CUP03-19.1 has even less impact on CUP08-17, the
CUP involved in this case, than it does on CUP09-17, the subject of the first case.”
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D. The Palenskys also claim the Board did not consider the combined
effects of CUP09-17 as modified and CUP08-17. In the companion case,
Palensky, No. 22-0242, we stated, “Both CUP09-17 and CUP08-17 were
considered by the Board on September 16, 2020. In the factual findings for
CUP09-17, the Board addressed the modifications occasioned by approval of
CUP03-19.1. The Board was not required to hold a new hearing to consider the
combined effects of the CUPs.” Following the remand, the Board considered
CUP08-17 and CUP09-17 together.
IV. Due Process
The Palenskys claim the Board’s proceedings following remand violated
due process. We review constitutional issues, such as due process claims, de
novo. PSFS 3 Corp. v. Michael P. Seidman, D.D.S., P.C., 962 N.W.2d 810, 832
(Iowa 2021).
We adopt the same analysis and conclusions in this case on the issue of
due process violations as we do in the companion case, Palensky, No. 22-0242.
We determine the Palenskys have not shown they were denied due process.
V. Petition for Redress of Grievances
The Palenskys assert their constitutional right to petition for the redress of
grievances was violated. See U.S. Const. amend. I (providing a right “to petition
the Government for a redress of grievances”); Iowa Const. art. I, § 20 (“The people
have the right freely to assemble together to counsel for the common good; to
make known their opinions to their representatives and to petition for a redress of
grievances.”). Our review of this constitutional claim is de novo. Mitchell Cnty. v.
Zimmerman, 810 N.W.2d 1, 6 (Iowa 2012).
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Again, we adopt the same analysis and conclusion in this case as we
reached in the companion case, Palensky, No. 22-0242. We determine the
Palenskys have not been denied their right to petition the Board for redress of their
grievances.
Following the district court’s decision, CUP08-17 was remanded to the
Board for further factual findings on the issues of compatibility and traffic
congestion. We affirm the decision of the district court.
AFFIRMED.