TSB Holdings, L.L.C. and 911 N. Governor, L.L.C. v. City of Iowa City, Iowa

IN THE SUPREME COURT OF IOWA
Nos. 15–1373 & 16–0988
Filed June 1, 2018
TSB HOLDINGS, L.L.C. and 911 N. GOVERNOR, L.L.C.,
Appellants,
vs.
BOARD OF ADJUSTMENT FOR THE CITY OF IOWA CITY,
Appellee.
------------------------ ------------------
TSB HOLDINGS, L.L.C. and 911 N. GOVERNOR, L.L.C.,
Appellants,
vs.
CITY OF IOWA CITY, IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeals from the Iowa District Court for Johnson County,
Mitchell E. Turner and Chad Kepros, Judges.
Developers seek further review of a court of appeals decision
affirming the district court’s orders denying them relief in certiorari
proceedings against a municipality. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT IN NO. 15–1373 AFFIRMED;
DISTRICT COURT JUDGMENT IN NO. 16–0988 REVERSED AND CASE
REMANDED WITH DIRECTIONS.
2
Charles A. Meardon of Meardon, Sueppel & Downer P.L.C., Iowa
City, and James W. Affeldt of Elderkin & Pirnie, P.L.C., Cedar Rapids, for
appellants.
Elizabeth J. Craig and Sara Greenwood Hektoen, Assistant City
Attorneys, Iowa City, for appellee.
3
MANSFIELD, Justice.
Relying on a 1987 court order, developers sought the right to build
apartments on certain adjoining properties they owned in Iowa City. After
the City denied their site plans, the developers brought separate actions
against the City and its Board of Adjustment. The district court ruled
against the developers in both actions. The developers appealed. The
court of appeals affirmed both judgments on the ground that enforcement
of the 1987 order was barred by Iowa Code section 614.1(6) (2013), which
provides that actions “founded on a judgment of a court of record” may
only be brought within twenty years after the cause of action accrues. See
Iowa Code § 614.1, .1(6). The developers asked for further review, which
we granted.
On further review, we find the Board of Adjustment should have
permitted the developers to proceed in accordance with the 1987 decree.
We conclude the statute of limitations does not bar enforcement of the
decree. We further conclude the developers are entitled to enforce the
decree as “successors and assigns.” Additionally, we reject the Board of
Adjustment’s argument that the decree had expired by its terms because
“a use [had] been developed or established” on the properties. Therefore,
we vacate the decisions of the court of appeals, reverse the district court
judgment in favor of the Board of Adjustment, and remand with directions
to enter judgment in favor of the developers in that proceeding.
I. Background Facts and Proceedings.
A. The Kempf Decision and the Resulting Remand Order. The
properties at issue are six numbered, adjoining lots in Iowa City. 1 Lots
1We realize Kempf v. City of Iowa City, 402 N.W.2d 393, 395 (Iowa 1987), states
there are seven numbered lots. However, upon examination of the record in this case,
we believe there are six lots.
4
49–51 on the west front on North Dodge Street. Lots 8–10 on the east
front on North Governor Street.
These properties were the subject of our decision in Kempf v. City of
Iowa City, 402 N.W.2d 393 (Iowa 1987). Wayne Kempf and his partners 2
bought a four-acre tract in the near north side of Iowa City. Id. at 395–96.
At the time of Kempf’s purchase, the City had zoned the properties as R3B,
a classification that permits office buildings and high density, multifamily
residential housing. Id. at 395.
Kempf planned to build one office building and five apartment
buildings on the lots, and invested $114,500 to purchase the whole tract
and develop it for construction. Id. at 395–96. Kempf had completed
construction of the office building on lots 8 and 9. See id. at 396. This
building is located at 911 North Governor Street. Kempf then began
construction of a twenty-nine unit apartment building on a part of lot 50.
See id. This building is located at 902 North Dodge Street. Following
vigorous neighborhood protests against the construction of the apartment
building, the City revoked Kempf’s building permit. Id. at 396–97.
Kempf commenced litigation. Id. at 397. The district court ordered
the City to reissue the building permit and enjoined the City from
preventing further construction. Id. After the completion of the apartment
building in 1977, the City imposed a moratorium on all construction with
the exception of single-family and duplex development. Id. In 1978, the
City rezoned Kempf’s tract and other tracts in the area. Id.
Kempf filed an amended petition, arguing the City’s rezoning was
arbitrary, capricious, and discriminatory, and the rezoning was an
2We refer to these plaintiffs collectively as Kempf except where otherwise stated.
5
unconstitutional taking. Id. at 398. Litigation between the parties
culminated in our Kempf decision.
First, we held the application of the rezoning to the lots and portions
of lots in the remaining 2.12 acres of the tract would be unreasonable. Id.
at 400–01. We reasoned overwhelming evidence showed it would be
economically unfeasible because “the cash flow income would not retire
the debt[,]” “lending agencies [would not] be willing to loan for such
purposes in these circumstances[,]” and “there would be no market for
single-family or duplex residences on the remaining Kempf tract.” Id. at
398, 400.
Second, we considered the present and future status of the
remaining lots. Id. at 401. We held
ordinances numbered 78-2901 through 78-2906 may apply to
the Kempf property, provided, however, that Kempf shall be
permitted to proceed with the development of apartment
buildings, as shown by the record in this case, to the extent
that such buildings conform to the ordinances in effect prior
to the 1978 rezoning . . . . The [C]ity shall be enjoined from
prohibiting this use of the property by Kempf. Further
development or redevelopment of the property beyond that
contemplated by Kempf as shown by this record and noted in
this opinion, whether carried out by Kempf or future owners,
will be subject to the amended ordinances above designated.
Id.
We remanded the case to the district court to enter a ruling
consistent with our opinion. Id.
On remand, the district court issued an order that described the
undeveloped 2.12 acres of the Kempf tract, specifically lots 10, 49, a part
of 50, and 51. The court further provided,
The owner or owners of said properties, and their
successors and assigns, shall be permitted to develop those
properties with multiple dwellings (apartments) in accordance
with the provisions applicable to the R3B zone in effect on May
6
30, 1978, prior to the rezoning of said real estate[,] which was
finalized on June 28, 1978.
. . . The City is and shall be enjoined from interfering
with development of those properties as herein provided.
Once a use has been developed or established on any of
the above-described properties, further development or
redevelopment of that property shall be subject to the zoning
ordinances in effect at the time such further development or
redevelopment is undertaken.
All parties, including the City, approved this language prior to the court
entering its decree. 3
After entry of the remand order, Kempf constructed a twelve-unit
apartment building on a part of lot 50. This building is located at 906
North Dodge Street. Kempf also granted the local energy company an
electrical easement across parts of lots 49 and 50 to provide utilities to the
new apartment building. 4 Other than the twelve-unit apartment building
and the electrical easement, Kempf did not further develop the properties.
B. Events Leading Up to the Current Litigation. Over time,
Kempf and his partners divested themselves of the properties. In 2005,
AB Investments, L.L.C., a Kempf-related entity, sold lots 49–51 to Main
Street Partners. Later that year, Main Street Partners conveyed the lots to
Iowa-Illinois Square, L.L.C., a company owned by the Clark family. In
2009, Iowa-Illinois Square, L.L.C. sold the lots to TSB for $3.4 million.
Thus, TSB has acquired lots 49–51, although it did not acquire them
directly from Kempf.
3In Iowa, when we “remand[] for a special purpose, the district court, upon the
remand, is limited to do the special thing authorized by this court in its opinion, and
nothing else.” See Kuhlmann v. Persinger, 261 Iowa 461, 468, 154 N.W.2d 860, 864
(1967). Regardless, both Kempf and the City approved the remand order entered by the
district court. Neither party challenged the propriety of the remand order below. Thus,
the remand order provides the applicable law in this case.
4Accordingto the March 28, 2016 district court order in the action against the
Board of Adjustment, the parties agree the electrical easement runs through lots 49 and
50.
7
In addition to the land itself, TSB now owns the twenty-nine unit
apartment building situated on lot 50 whose address is 902 North Dodge
Street and the twelve-unit apartment building situated on lot 50 whose
address is 906 North Dodge Street.
In 2012, AB Investments, L.L.C. sold lots 8–10 to 911 North
Governor, L.L.C. The sale included the office building that Kempf had built
on lots 8 and 9 in the early 1970s. TSB has since acquired 911 North
Governor, L.L.C. 5 Therefore, through series of transactions, TSB now
owns or controls the lots that are the subject of the Kempf litigation and
the remand order.
In November 2012, the City amended its comprehensive zoning plan
to designate properties in the area, including the properties at issue in this
case, as single family and duplex residential properties. On March 19,
2013, the City rezoned the properties to comply with the comprehensive
zoning plan by passing ordinance 13–4518. This ordinance provides in
relevant part,
WHEREAS, the City of Iowa City has initiated a rezoning
of property located at 906 North Dodge Street from Multi-
family (R3B) to High-Density Single-Family Residential (RS-
12); property located [at] 911 North Governor Street from
Commercial Office (CO-1) to High-Density Single-Family
Residential (RS-12); property located at 902 and 906 North
Dodge Street from Multi-family (R3B) to Medium-Density
Multi-Family Residential (RM-20) in order to bring the
properties into compliance with the City’s Comprehensive
Plan; and
WHEREAS, City plans and policies, including the
Comprehensive and Strategic Plan, have changed
considerably in the last 40 years, with the current
Comprehensive Plan and Historic Preservation Plan
containing policies to encourage preservation of the single
family character of the City’s older single family
neighborhoods and policies that serve to stabilize these
5From this point forward, we refer to TSB Holdings, L.L.C. and 911 N. Governor,
L.L.C. collectively as TSB.
8
neighborhoods by encouraging a healthier balance of rental
and owner-occupied housing rather than redevelopment for
housing that serves primarily short-term residents; and
WHEREAS, the Central District Plan indicates that R3B
zoning is obsolete and the properties with this designation
should be rezoned to a valid zoning designation;
....
WHEREAS, the Comprehensive Plan policies in place
during the 1960s that led to the R3B zoning on Dodge Street
encouraged demolition and redevelopment of older
neighborhoods at higher densities; and
WHEREAS, the City’s Zoning Code no longer includes
the R3B zoning designation due to its inconsistency with the
City’s current comprehensive planning goals and polices; . . . .
Iowa City, Iowa, City Code § 13–4518 (2013). The ordinance went into
effect on March 28.
On January 10 of that same year, before ordinance 13–4518 had
been published, TSB submitted a site plan to obtain the City’s approval
for development on 902 and 906 North Dodge Street. Julie Tallman, the
City’s regulation specialist, evaluated the site plan under the Kempf
remand order and noted various deficiencies with it.
On January 22, the City announced the rezoning and imposed a
moratorium to prevent the approval of any site plan in light of the
anticipated rezoning. Nevertheless, on January 31, TSB submitted a
revised site plan that proposed developing lots 9, 10, 49, 51, and a portion
of lot 50, and demolishing the existing parking area on lots 9, 10, 49, and
a portion of lot 50.
Kempf had not developed lots 10, 49, and 51, and they had no
buildings on them at the time TSB submitted this site plan. Kempf had
developed only a very small portion of lot 50, with substantially all of lot
50 remaining vacant at the time TSB submitted its site plan.
9
On February 7, without evaluating the implications of the Kempf
remand order on the site plan, Tallman denied the site plan on the ground
that multifamily dwellings (apartment buildings) did not comply with the
existing commercial office (CO-1) zone or the proposed high-density single-
family residential (RS-12) rezone.
On April 18, TSB submitted a new site plan, which proposed
construction of apartment buildings on lots 10, 49, and 51 only. Tallman
denied this plan on April 29, viewing it as materially identical to the
January 31 site plan. The City also noted the March 28 effective date of
ordinance 13–4518 did not alter the situation because the moratorium had
been in effect at the time of the January 31 site plan, and the moratorium
mandated compliance with the proposed rezoning.
C. Action Against the City. In February 2013, after ordinance 13–
4518 had been proposed but before it had been adopted, TSB filed a
petition for declaratory relief and temporary injunction against the City.
In count I, TSB requested “a declaratory decree adjudging the [City] may
not alter the zoning of the propert[ies], and that if the [City] does so, that
the altered regulation is, to the extent it applies to the propert[ies],
unconstitutional and void.” In count II, TSB sought a temporary
injunction that would restrain the City from rezoning the properties until
a hearing.
In April, following the approval of ordinance 13–4518, TSB also filed
a petition for writ of certiorari against the City directly challenging the
legality of ordinance 13–4518. Specifically, TSB alleged
[t]he change i[n] the zoning classification was improper,
unreasonable, arbitrary and capricious, illegal, contrary to
prior rulings of the Supreme Court of Iowa and of the Johnson
County District Court, and would result in an
unconstitutional taking of [TSB]’s property.
10
TSB requested the court to issue a writ of certiorari annulling the City’s
rezoning. On July 16, 2014, the court consolidated the two actions against
the City.
Both parties filed motions for summary judgment. The court
granted the City’s summary judgment motion on all claims and denied
TSB’s summary judgment motion. First, the court found ordinance 13–
4518 did not violate Kempf and the remand order because the City had
legislative authority to rezone the properties. Second, the court found the
City acted legally when adopting ordinance 13–4518.
TSB filed a rule 1.904(2) motion requesting clarification as to
whether the court intended to dismiss TSB’s takings claim. Resisting the
rule 1.904(2) motion, the City argued TSB’s takings claim did not meet
notice-pleading requirements. The court enlarged its summary judgment
ruling to find TSB failed to plead adequately a takings claim.
TSB appealed, claiming the court erred not only in entering
summary judgment against it but also in failing to enter summary
judgment in its favor. We transferred the case (No. 15–1373) to the court
of appeals.
D. Action Against the Board of Adjustment. Meanwhile, the
Board of Adjustment (Board) had upheld Tallman’s denial of a site plan.
The Board specifically denied TSB’s request for a variance from ordinance
13–4518. In January 2014, TSB filed a petition for writ of certiorari
against the Board, challenging the Board’s refusal to approve the site plan.
This case went to trial in January 2016. Approximately three months
before trial, the Board unsuccessfully attempted to amend its answer to
raise the statute of limitations as a defense to enforcement of the Kempf
remand order. The district court denied the motion as untimely.
11
On March 28, the district court rendered its written decision in the
case against the Board. It determined that TSB could not enforce the
Kempf remand order because it was not a “successor” or “assign” within
the meaning of that order. It also concluded that a “use” had been
“developed or established” on the properties and that TSB’s proposals
involved “further development or redevelopment,” which under the order
would be “subject to the zoning ordinances in effect.” Finally, it found that
TSB’s requested relief would violate public policy.
TSB appealed this ruling. Additionally, the Board cross-appealed
the denial of its motion to amend its answer to raise the statute of
limitations. The Board argued that the Kempf remand order would have
been unenforceable anyway based on Iowa Code section 614.1(6). We
transferred this appeal (No. 16–0988) to the court of appeals.
E. Decisions of the Court of Appeals. While both appeals were
pending, we rendered the decision in Dakota, Minnesota, & Eastern
Railroad v. Iowa District Court, 898 N.W.2d 127 (Iowa 2017). In Dakota,
we held a contempt proceeding to enforce a 1977 injunction was barred by
the statute of limitations set forth in Iowa Code section 614.1(6). Id. at
135–39.
After receiving supplemental briefs, the court of appeals rendered a
single panel decision covering both appeals. In No. 15–1373, the court
generally affirmed summary judgment in favor of the City on the basis of
Dakota. However, on TSB’s takings claim, the court of appeals held the
district court erred in determining that the takings claim did not meet
notice-pleading requirements when the City had notice of the facts giving
rise to the claim and the general nature thereof. Thus, the court of appeals
12
reversed on that issue and remanded. In No. 16–0988, the court of
appeals also affirmed the district court judgment in reliance on Dakota. 6
TSB asked for further review in both cases. 7 We granted the
requests and now consolidate the two appeals (No. 15-1373 and No. 16-
0988) for purposes of our decision.
II. Scope of Review.
We review orders granting summary judgment for correction of
errors at law. Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep’t of
Transp., 891 N.W.2d 220, 224 (Iowa 2017). Summary judgment is
appropriate if the record, shows “that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law.” Iowa R. Civ. P. 1.981(3).
With a certiorari proceeding, the district court finds the facts anew
only to determine if there was illegality not appearing in the record made
before the board. Bontrager Auto Serv. v. Iowa City Bd. of Adjustment, 748
N.W.2d 483, 494–95 (Iowa 2008). Fact-findings or issues that were before
the board for decision are “reviewed under the substantial evidence
standard.” Id. at 495. “We are bound by the district court’s findings if
supported by substantial evidence.” Baker v. Bd. of Adjustment, 671
N.W.2d 405, 414 (Iowa 2003). “However, we are not bound by erroneous
legal rulings that materially affect the court’s decision.” Id.
III. Whether TSB’s Claims Based on the 1987 Kempf Remand
Order Are Barred by the Statute of Limitations.
In Dakota, this court concluded unanimously that when twenty
years have passed from the entry of an injunction, a contempt proceeding
6Two special concurrences were filed in the court of appeals panel decision. Both
concurrences expressed doubts as to whether Dakota was correctly decided, while
recognizing the court of appeals was bound by the decision.
7The City also asked for further review in No. 15–1373 on the takings issue.
13
to enforce that injunction is barred by the statute of limitations unless the
injunction has been renewed. 898 N.W.2d at 135–39. Our decision was
based on the wording of Iowa Code section 614.1(6). Id. Upon further
reflection, we believe we erred.
We begin again with the text of Iowa Code section 614.1(6). The
relevant part of the statute provides,
Actions may be brought within the times herein limited,
respectively, after their causes accrue, and not afterwards,
except when otherwise specially declared:
....
6. Judgments of courts of record. Those founded on a
judgment of a court of record, whether of this or of any other
of the United States, or of the federal courts of the United
States, within twenty years, except that a time period
limitation shall not apply to an action to recover a judgment
for child support, spousal support, or a judgment of
distribution of marital assets.
Iowa Code § 614.1(6) (emphasis added).
In Dakota, we considered the issue of whether a 1977 judgment
granting an injunction against the former owner of a railroad right-of-way
was enforceable almost forty years later against a subsequent purchaser.
898 N.W.2d at 129. We held the 1977 judgment was unenforceable
because of Iowa Code section 614.1(6). Id. at 138.
In 1977, the district court had issued an injunction against the
then-owner of the railroad right-of-way. Id. at 132. This injunction
directed the owner to reconstruct a dike designed to channel creek water
under the railroad bridge and away from adjacent farmland. Id. Nearly
forty years later, the court found a subsequent purchaser of the right-of-
way in contempt for failing to reconstruct and maintain the dike. Id. at
134. The subsequent purchaser filed an application for interlocutory
14
review and alternatively a petition for certiorari, seeking review of the
court’s order finding contempt. Id. We granted certiorari review. Id.
In the certiorari proceeding, we stated the “[plaintiff]’s application
for order to show cause filed in February 2013 was an action seeking
enforcement of the judgment entered in 1977” and “was therefore an action
subject to the twenty-year statute of limitations on enforcement of
judgments under Iowa Code section 614.1(6).” Id. at 138. Overlooking the
accrual language in section 614.1, we first concluded “[t]he twenty-year
period commenced when the judgment was entered.” Id. We then
concluded, “Because the 1977 judgment was not renewed, it expired in
1997, well before the attempt to enforce it against [the subsequent owner]
was commenced.” Id. Thus, we held the contempt proceeding against the
subsequent owner was an untimely action to enforce the 1977 judgment.
Id. at 140.
In retrospect, instead of focusing on the language of Iowa Code
614.1(6), we should have considered the larger context of the statute,
including the preceding language in section 614.1 which explicitly uses
accrual terminology. Compare Iowa Code § 614.1 (“Actions may be
brought within the times herein limited, respectively, after their causes
accrue, and not afterwards . . . . (Emphasis added.)), with id. § 624.23(1)
(“Judgments in the appellate or district courts of this state, or in the circuit
or district court of the United States within the state, are liens upon the
real estate owned by the defendant at the time of such rendition, and also
upon all the defendant may subsequently acquire, for the period of ten
years from the date of the judgment.” (Emphasis added.)). Until a cause of
action accrues, the statute of limitations does not commence. Huerta–
Orosco v. Cosgrove, 979 F. Supp. 2d 974, 979 (N.D. Iowa 2013).
15
Not all causes of action accrue on the date of judgment entry. The
case at hand illustrates this point. The 1987 remand order prohibits the
City from interfering with the development of the properties subject to the
remand order. TSB sustained injury in 2013 when the City denied and
the Board affirmed the denial of TSB’s site plans based on ordinance 13–
4518. Thus, TSB’s cause of action seeking to enforce the remand order
accrued or matured in 2013.
We distinguished a statute of repose from a statute of limitations in
Bob McKiness Excavating & Grading, Inc. v. Morton Buildings, Inc.,
507 N.W.2d 405, 408–09 (Iowa 1993). We stated,
A statute of limitations bars, after a certain period of time, the
right to prosecute an accrued cause of action.
By contrast, a statute of repose “terminates any right of
action after a specified time has elapsed, regardless of whether
or not there has as yet been an injury.”
A statute of repose period begins to run from the
occurrence of some event other than the event of an
injury that gives rise to a cause of action and, therefore,
bars a cause of action before the injury occurs.
Under a statute of repose, therefore, the mere passage of time
can prevent a legal right from ever arising.
Id. at 408 (citation omitted) (quoting Hanson v. Williams County, 389
N.W.2d 319, 321 (N.D. 1986)). Stated differently, “a statute of limitations
affects only the remedy, not the right, . . . whereas a statute of repose
affects the right itself, extinguishing existing rights or preventing rights
from arising.” See Albrecht v. Gen. Motors Corp., 648 N.W.2d 87, 91 (Iowa
2002) (citation omitted).
In Bob McKiness, we examined the language of section 614.1(11)
(1991) and concluded it was a statute of repose as opposed to a statute of
limitations. 507 N.W.2d at 408. Section 614.1(11) at the time provided,
16
In addition to limitations contained elsewhere in this section,
an action arising out of the unsafe or defective condition of an
improvement to real property based on tort and implied
warranty and for contribution and indemnity, and founded on
injury to property, real or personal, or injury to the person or
wrongful death, shall not be brought more than fifteen years
after the date on which occurred the act or omission of the
defendant alleged in the action to have been the cause of the
injury or death.
Id. at 409 (emphasis added) (quoting Iowa Code § 614.1(11) (1991)). We
stated the fifteen-year period of repose commenced from the date of the
defendant’s act or omission alleged to have been the cause of the plaintiff’s
complaint. Id.
We further noted that “the plain language of the statute evinces a
legislative policy decision to close the door after fifteen years on certain
claims arising from improvements to real property.” Id.; accord Albrecht,
648 N.W.2d at 91 (“[S]tatutes of repose ‘reflect the legislative conclusion
that a point in time arrives beyond which a potential defendant should be
immune from liability for past conduct.’ ” (quoting 51 Am. Jur. 2d
Limitation of Actions § 18, at 463 (2000))). Thus, in declining to apply the
discovery rule to section 614.1(11), we rejected the argument that
plaintiff’s cause of action accrued in 1991 when the plaintiff first
discovered the design defects of the first building. 507 N.W.2d at 409.
Rather, we held the statute of repose began to run from the respective
completion dates of the two buildings in 1971 and 1974. Id.
In Albrecht, we built upon our analysis in Bob McKiness. We
emphasized section 614.1 states “[a]ctions may be brought within the
times herein limited, respectively, after their causes accrue[,] and not
afterwards, except when otherwise specially declared.” 648 N.W.2d at 91
(first alteration in original) (quoting Iowa Code § 614.1 (1975)). We stated
the “otherwise specially declared” language applies to statutes of repose.
Id. at 92. We held section 614.1(2A)(a) is a statute of repose in which the
17
limitations period commenced from the date the aggrieved party first
purchased the product or installed it for use. Id.
We should have concluded in Dakota that Iowa section 614.1(6) is a
statute of limitations, not a statute of repose. This section provides that
actions run from the accrual of the aggrieved party’s claim, not necessarily
the date of judgment entry. See Weiser v. McDowell, 93 Iowa 772, 777, 61
N.W. 1094, 1096 (1895) (“[P]laintiff’s cause of action is not barred until
twenty years from the time at which the action could have been
commenced . . . .”).
Of course, in some instances those dates are one and the same. An
obligation to pay money typically arises when the money judgment is
entered. Therefore, a cause of action to enforce a money judgment
(including an obligation to pay money within an equitable decree) usually
arises when the judgment is entered. See Miller v. Rosebrook, 136 Iowa
158, 164, 113 N.W. 771, 773 (1907) (deciding that with respect to a money
judgment, “the statutory period within which an action may be brought on
such judgment commences to run from the date of the entry thereof by the
clerk of the district court, and extend[s] for twenty years”). 8 That is why
section 614.1(6) was amended in 1997 to expressly exempt “an action to
recover a judgment for child support, spousal support, or a judgment of
distribution of marital assets” from the twenty-year bar. See 1997 Iowa
Acts ch. 175, § 235; see also State ex rel. Holleman v. Stafford, 584 N.W.2d
242, 247 (Iowa 1998) (finding that “collection of [child support] payments
due more than twenty years prior to July 1, 1997, [was] barred by the
statute of limitations”).
8This would not be true if the judgment provided for a deferred payment.
18
Dakota was also inconsistent with Bear v. Iowa District Court, where
we said that permanent injunctions are “unlimited in respect of time.” 540
N.W.2d 439, 441 (Iowa 1995). We added, “The mere passage of time . . .
does not invalidate a permanent injunction.” Id. As we pointed out in
Dakota, the results in the two cases can be reconciled. See 898 N.W.2d at
139. Yet the reasoning in the two cases cannot be. 9
The legislature has used the appropriate language when it intends
to regulate the duration of judgments as opposed to when “[a]ctions may
9There is another potential reason why we may have erred in Dakota. Historically,
an action founded on a judgment as used in Iowa Code section 614.1(6) and its
predecessors referred to an action on a money judgment. Thus, in Morrison v. Springfield
Engine & Thresher Co., 84 Iowa 637, 640, 51 N.W. 183, 184 (1892), we found that an
action to enforce a judgment requiring the return of a thresher or a payment of its value
in money was not time-barred by the predecessor to section 614.1(6). We explained,
[T]he action in this case is not really upon a judgment. The order in
reference to the thresher is conditional. It provides for the return of the
machine or the payment of the value of it, and it fixes the value. It is not
in such condition that an execution could be issued thereon to collect the
money. It was in the alternative.
Id.
It is true that Kramer v. Rebman, 9 Iowa 114, 118 (1859), which we cited in
Dakota, indicates in dictum that “judgment” as used in section 614.1(6)’s predecessor
includes both judgments at law and judgments at equity. But Kramer doesn’t address
what constitutes an action “founded on a judgment” and whether that term encompasses
proceedings to enforce purely equitable provisions in a decree. See Iowa Code § 614.1(6)
(2013).
Dakota also did not discuss Iowa Code section 614.3, which provides,
No action shall be brought upon any judgment against a defendant
therein, rendered in any court of record of this state, within nine years
after the rendition thereof, without leave of the court for good cause shown
....
Iowa Code § 614.3. If Dakota were correct, then no contempt action could be brought to
enforce an injunction during the first nine years after its entry—unless an action “brought
upon any judgment” and an action “founded . . . on a judgment” were two different things.
That is troubling.
We do not reach a definitive conclusion on these points. For today, we hold only
that a proceeding to enforce an injunction cannot be barred by the statute of limitations
in Iowa Code section 614.1(6) if it was brought within twenty years of the accrual of the
cause of action, which in a proper case may be when the violation of the injunction first
occurred.
19
be brought . . . after their causes accrue” to enforce judgments. Iowa Code
§ 614.1 (2013); see Exceptional Persons, Inc. v. Iowa Dep’t of Human Servs.,
878 N.W.2d 247, 251 (Iowa 2016) (“[W]e may consider those things the
legislature said in one provision, but not in another.”). Consider chapter
615, which the legislature titled as “Limitations on Judgments.” Iowa Code
ch. 615. Section 615.1 plainly provides that certain judgments related to
real estate expire after two years. Id. § 615.1 (“After the expiration of a
period of two years from the date of entry of judgment, . . . a judgment
entered in any of the following actions shall be null and void . . . .” ). In
yet another example, section 664A.5 specifically limits the duration of a
permanent no-contact order to “five years from the date the judgment is
entered or the deferred judgment is granted.” Id. § 664A.5. From these
sections, it appears the legislature knew exactly how to limit the duration
of judgments. However, the legislature chose not to do so in section
614.1(6).
In sum, we overrule Dakota and hold that the limitations period in
Iowa Code section 614.1(6) runs from the date when the cause of action
accrues, which in the case of an injunction may be the date when the
violation of the injunction occurs. This does not mean that all injunctions
are permanent. Dakota may have reached the correct result on its facts
because it appears the relevant portions of the injunction were not
permanent. They required specific action at the time—“continuing to allow
the flowage of Whiskey Creek upon plaintiffs’ land” and “reconstruct[ing]
the collapsed dike in order to channel the Creek under Bridge 110”—not
forever. Dakota, 898 N.W.2d at 132. Thus, contempt was improper not
because the statute of limitations for contempt had run, but because the
underlying provisions that were the basis for contempt had expired.
20
We conclude that proceedings in these cases were not barred by
Iowa Code section 614.1(6). TSB alleges that the City’s adoption of
ordinance of 13–4518 and the Board’s denial of a variance for the amended
site plan both violated the Kempf remand order. Those two actions
occurred in 2013. Thus, TSB’s cause of action to enforce the Kempf
remand order accrued or matured in 2013.
IV. Whether the Kempf Remand Order Allows TSB to Develop
the Properties with Apartments.
We now address two arguments. First, does the City’s passage of
ordinance 13–4518 violate the Kempf remand order? Second, does the
Kempf remand order prohibit the City from enforcing ordinance 13–4518
so as to interfere with TSB’s alleged development rights? Otherwise stated,
does it allow TSB to develop the properties despite ordinance 13–4518?
A. Did the City’s Passage of Ordinance 13–4518 Violate the
Kempf Remand Order? Zoning decisions are an exercise of police powers
the state delegates to municipalities. Anderson v. City of Cedar Rapids,
168 N.W.2d 739, 742 (Iowa 1969). The City has statutory authority to
pass zoning laws “[f]or the purpose of promoting the health, safety, morals,
or the general welfare of the community.” Iowa Code § 414.1(1).
“A zoning ordinance, including any amendments to it, carries a
strong presumption of validity.” Neuzil v. City of Iowa City, 451 N.W.2d
159, 163 (Iowa 1990); see also Residential & Agric. Advisory Comm., LLC
v. Dyersville City Council, 888 N.W.2d 24, 43 (Iowa 2016) (“Zoning
regulations carry a strong presumption of validity.”). The challenger must
rebut and overcome the strong presumption that the rezoning is valid. See
Shriver v. City of Okoboji, 567 N.W.2d 397, 401 (Iowa 1997). The
challenger “must show the ordinance is unreasonable, arbitrary,
21
capricious or discriminatory, with no reasonable relationship to the
promotion of public health, safety, or welfare.” Id.
“If the reasonableness of a zoning ordinance is fairly debatable, we
will not substitute our judgment for that of the legislative body.” Molo Oil
Co. v. City of Dubuque, 692 N.W.2d 686, 691 (Iowa 2005); see also
Residential & Agric. Advisory Comm., 888 N.W.2d at 43.
If an ordinance “has any real, substantial relation to the public
health, comfort, safety, and welfare, including the maintenance of property
values,” it is valid. Neuzil, 451 N.W.2d at 164. We apply this test by
primarily considering the ordinance’s general purpose and not the
hardship it may impose in an individual case. Id. “We do not focus on
individual hardships because property owners in the area affected by a
zoning ordinance, as well as adjacent landowners, have no vested right to
the continuation of the current zoning.” Shriver, 567 N.W.2d at 401. We
will therefore not strike down an ordinance for the sole reason that the
ordinance adversely affects a particular property owner. Id. Zoning is
dynamic and changing, with “any existing restrictions being always
subject to reasonable revisions [in light of] changing community conditions
and needs as they appear.” Anderson, 168 N.W.2d at 743.
In appeal No. 15–1373, TSB argues that the City’s passage of
ordinance 13–4518 was unlawful. Yet in its resistance to the City’s motion
for summary judgment below, TSB conceded that “the injunction in the
[r]emand [o]rder does not specifically state that the City may not rezone
the [p]ropert[ies].” Moreover, TSB has stated “[it] does not ask that the
City be permanently enjoined from rezoning the [p]ropert[ies].”
Nothing in the language of our Kempf decision or the district court’s
remand order prevents the City from rezoning the properties under
scrutiny. In fact, we did not void the rezoning ordinance in Kempf but
22
rather held the ordinance was not applicable to Kempf’s development
plans. See 402 N.W.2d at 401 (reversing the district court’s ruling to the
extent it voided the 1978 zoning ordinance).
On appeal, TSB admits “[t]his case is not about a challenge to the
City’s power to rezone property.” So what exactly is TSB arguing? TSB
reframes the issue as whether the City intentionally violated the remand
order by passing ordinance 13–4518. In other words, TSB is not alleging
ordinance 13–4518 is illegal on the ground that Kempf and the remand
order precluded rezoning of the properties. Instead, TSB is claiming
ordinance 13–4518 is illegal because the City’s purpose was to interfere
with TSB’s alleged development rights.
When a zoning authority adopts a new zoning regulation designed
to frustrate a particular applicant’s plans for development, it can be
discerned that an improper purpose exists. Geisler v. City Council of Cedar
Falls, 769 N.W.2d 162, 169 (Iowa 2009).
Yet we find no improper purpose on the part of the City in passing
ordinance 13–4518. Before TSB submitted its site plans in 2013, the City
was already contemplating zoning changes in 2008, at which time the City
adopted a central district plan. According to this plan, TSB’s properties
lie within an “area [that] has the greatest diversity of housing types and
the widest range of zoning designations, from medium density single-
family to high density multi-family.” The plan states this mix “has been
an ongoing challenge to maintain a balance between the different housing
types and mix of residents within [the area].” The plan cites several
reasons: absentee landlords, a large number of inexperienced young
renters, problems with property maintenance, loud and disorderly
conduct, yard upkeep, and snow removal.
23
In 2012, the City amended its comprehensive zoning plan to
designate the area as single family and duplex residential. The resolution
amending the comprehensive plan stated,
City policies, including the [c]omprehensive and [s]trategic
plan, have changed considerably in the last 50 years, and now
contain policies promoting neighborhood stabilization rather
than high-density redevelopment, which has proven to have a
destabilizing effect on single-family residential
neighborhoods.
The resolution noted that the central district plan seeks “to achieve
a healthier balance of rental and owner-occupied housing in the district’s
older neighborhoods to promote long-term investment, affordable housing
opportunities, and preservation of historic homes and neighborhoods.”
After considering the proposed rezoning three times, the City
approved ordinance 13–4518 a year later. This ordinance incorporates the
same goals and justifications as the 2012 amendment to the
comprehensive plan.
Reviewing this sequence of events, we cannot find the City adopted
the ordinance in bad faith or to block TSB from developing the relevant
properties. The City sought to ensure compatibility of future development
and redevelopment with the surrounding neighborhoods and encourage
stabilization of the neighborhood. The chronology of the passage of
ordinance 13–4518 tends to negate any arguments that the City was
engaged in spot zoning. See id. at 169 n.3 (“Unlike [in] situations where
bad faith [is] found when the governing body [seeks] to change the rules in
response to a particular request, the result may be different where a zoning
change is already being contemplated before the particular request is
made.”). Accordingly, we hold the district court did not err in granting
summary judgment to the City in No. 15–1373 and determining that
ordinance 13–4518 was lawful.
24
B. Does the Kempf Remand Order Prohibit the City from
Enforcing Ordinance 13–4518 as to the Properties TSB Seeks to
Develop? We now address whether the Kempf remand order precludes
the application of ordinance 13–4518 to TSB’s amended site plan, such
that TSB should have been granted a variance. This issue is raised in
No. 16–0988—the case against the Board. The district court found that
TSB did not have rights to proceed with the apartment project under the
Kempf remand order.
We interpret court decrees like any other written instrument.
Waters v. State, 784 N.W.2d 24, 28 (Iowa 2010). In construing court
decrees, the determining factor is the intent of the court as gathered from
all parts of the judgment. Id. If possible, we strive to effectuate every word
“to give the judgment as a whole a consistent, effective[,] and reasonable
meaning.” In re Marriage of Lawson, 409 N.W.2d 181, 182–83 (Iowa 1987).
Moreover, we seek to give force to those matters that are clearly implied,
as well as expressed. Rinehart v. State, 234 N.W.2d 649, 656 (Iowa 1975).
We resort to the pleadings and other proceedings if the meaning of the
decree is ambiguous. Waters, 784 N.W.2d at 28.
1. Owners, successors, and assigns. TSB contends the district
court erred in concluding that it did not qualify as a “successor[] and
assign[]” to Kempf.
An “assign,” otherwise known as “assignee,” is not the same as a
“successor.” See Ostrem v. Prideco Secure Loan Fund, LP, 841 N.W.2d 882,
899 (Iowa 2014). An assignment occurs when an assignor transfers to its
assignee “the whole of any property or right in the property” such that “the
assignee assumes the rights, remedies, and benefits of the assignor,” and
“also takes the property subject to all defenses to which the assignor is
subject.” Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 533 (Iowa 1995).
25
We have stated that
[assign] does not mean just a single person, but also
comprehends a line or succession of persons. It is often
written “assignees.” An “assignment” has been defined as “a
transfer or making over to another of the whole of any
property, real or personal, in possession or in action, or of any
estate or right therein.” . . . “The word ‘assigns’ is a term of
well-known signification, comprehending all those who take
immediately or remotely from or under the assignor, whether
by conveyance, devise, descent, or act of law . . . .
Reichard v. Chi., B. & Q. R.R., 231 Iowa 563, 583, 1 N.W.2d 721, 733
(1942) (citation omitted).
The district court found that TSB was not a successor or assign
because (1) Kempf did not sell the lots directly to TSB and (2) the lots were
sold piecemeal and not as a single package. The first point does not matter
because assign includes “a line or succession of persons” and
encompasses “all those who take immediately or remotely from or under
the assignor, whether by conveyance, devise, descent, or act of law.” Id.
(emphasis omitted). The second point does not matter because the lots
themselves were not subdivided, and the Kempf remand order applied lot
by lot. Notably, the order begins by using plural nouns. It refers to “the
owner or owners” of the “properties,” i.e., the lots, as well as “their
successors and assigns.” Then, it continues,
Once a use has been developed or established on any of
the above-described properties, further development or
redevelopment of that property shall be subject to the zoning
ordinances in effect at the time such further development or
redevelopment is undertaken.
(Emphasis added.) Thus, development rights are provided for each lot. In
any event, TSB now owns the whole Kempf tract: lots 8–10 and 49–51.
This is not a case like Ross v. First Savings Bank of Arlington, which
involved loan participation agreements. See 675 N.W.2d 812 (Iowa 2004).
Unlike the lead bank in Ross, which sold shares in a pool of loans, id. at
26
817, Kempf transferred and TSB eventually acquired all the rights to each
lot. TSB is an assignee within the contemplation of the 1987 remand
order.
The Board relies on Sun Valley Iowa Lake Ass’n v. Anderson to argue
that TSB is not a successor to Kempf. See 551 N.W.2d 621 (Iowa 1996).
We need not resolve whether TSB is a successor because we have already
determined that it is an assign. In any event, Sun Valley does not support
the Board’s position. In that case, we found that the entity that had
purchased property from the developer was a “successor developer” within
the meaning of a covenant document, and the entity’s two shareholders
were not. Id. at 639–40. We quoted a Texas case for the proposition that
the exact meaning of the word “successor” “must depend largely on the
kind and character of the contract, its purposes and circumstances, and
the context.” Id. at 640 (quoting Enchanted Estates Cmty. Ass’n v.
Timberlake Improvement Dist., 832 S.W.2d 800, 802 (Tex. App. 1992)). We
quoted further from the same case that “[t]he term ‘successor’ has also
been defined as ‘one who takes the place that another has left, and
sustains the like part or character.’ ” Id. (emphasis omitted). We found
that the new developer, not its shareholders, “took the place” of the
previous developer and “sustain[ed] the like part or character.’ ” Id.
(alteration in original).
Here TSB “took the place” that Kempf “left” and is seeking to
“sustain[] the like part or character.” See id. TSB’s amended site plan
calls for apartments to be built on lots 10, 49, and 51. At the time we
decided Kempf, Kempf’s plan based on the record of that case was to
develop four more apartment buildings. 402 N.W.2d at 395. Kempf built
one apartment building following the remand order. TSB now seeks to
pick up where Kempf left off by erecting three more apartment buildings.
27
2. Whether a use has been developed or established on the
properties. TSB next contends the district court erred in concluding that
the type of “use” contemplated in Kempf and the remand order “had been
developed or established” on the relevant lots.
The remand order not only benefits “successors and assigns” to
Kempf, it also permits the development to occur with “multiple dwellings”
(apartments) in general and not specifically Kempf’s planned four
apartment buildings.
The question then is whether, per the remand order, “a use has been
developed or established on any of the above-described properties.” As we
have already noted, the remand order takes a micro approach as opposed
to a macro approach. Specifically, the remand order dictates that “[o]nce
a use has been developed or established on any of the above-described
properties, further development or redevelopment of that property shall be
subject to the zoning ordinances in effect at the time” such action is taken.
(Emphasis added.)
At this point, TSB seeks to build apartment buildings only on lots
10, 49, and 51. No building has ever been erected on those lots. Following
remand, Kempf constructed the twelve-unit apartment development on a
portion of lot 50 that is located at 906 North Dodge Street and granted the
local energy company an electrical easement running through lots 49 and
50 to provide utilities to the new apartment development. The grant of an
electrical easement on lot 49 is irrelevant because a “use” contemplates
the construction of a building.
The Board also urges that TSB’s plans involve “further development
or redevelopment” of the lots in question. We disagree. A use has not been
established on lots 10, 49, and 51. Thus, TSB’s construction of
28
apartments on these lots would not amount to “further development or
redevelopment.”
Developing apartments on lots 10, 49, and 51 necessarily entails
concomitant burdens, such as relocating a sewer line or moving an
easement to provide utilities to the new buildings. TSB would have to
move utility lines and renegotiate the electrical easement Kempf had
granted to the local energy company. However, Tallman herself testified
that moving water lines, sewer lines, and utility lines do not constitute a
change in the use of the property. Rather, according to Tallman, the City
considers an actual change in use of the property, such as from single-
family dwelling units to multifamily dwelling units, to be a change in land
use. Based on Tallman’s testimony, we decline to categorize these
concomitant burdens as “further development or redevelopment.”
TSB intends to demolish the office building on lots 8 and 9 and put
in a larger parking lot, but these lots are not subject to the remand order.
We need not address this proposed demolition further.
Accordingly, we conclude that TSB can build apartment buildings
on lots 10, 49, and 51 subject to the remand order. 10
V. Conclusion.
For the foregoing reasons, we overrule Dakota and vacate the
decisions of the court of appeals. We affirm the district court’s grant of
summary judgment to the City in No. 15–1373. We reverse the district
10The district court also found that enforcement of the 1987 decree would violate
public policy because “the City has changed in the nearly thirty years since Mr. Kempf
last was involved with the property, and there have been challenges to regulating
standards applicable to the various neighborhoods in the City.” However, the City has
not sought to modify that order based on changed conditions.
29
court’s ruling in favor of the Board in No. 16–0988 and remand for further
proceedings consistent with this opinion. 11
DECISIONS OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT IN NO. 15–1373 AFFIRMED; DISTRICT COURT
JUDGMENT IN NO. 16–0988 REVERSED AND CASE REMANDED WITH
DIRECTIONS.
All justices concur except Hecht and Wiggins, JJ., who take no part.
11In No. 15–1373, the court of appeals reversed and remanded the dismissal of
TSB’s takings claim. We determine that claim is now moot in light of our overall
disposition of this appeal.