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IN THE COURT OF APPEALS OF IOWA No. 7-486 / 06-1487 Filed December 12, 2007 CHAMBERLAIN, L.L.C., Plaintiff-Appellant, vs. CITY OF AMES, IOWA, and AMES BOARD OF APPEALS, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Story County, Dale E. Ruigh, Judge.

Appellant appeals the district court's order granting appellees' motion for summary judgment and denying appellant's motion for summary judgment. AFFIRMED.

John F. Lorentzen and John T. Clendenin of Nyemaster, Goode, West, Hansell & O'Brien, Des Moines, for appellant. William A. Wickett and Cory D. Abbasm of Patterson Law Firm, L.L.P., and Jason C. Palmer and Andrew C. Johnson of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees.

Heard by Sackett, C.J., and Vogel and Vaitheswaran, JJ.

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SACKETT, C.J. Plaintiff-appellant, Chamberlain, L.L.C. (Chamberlain), sued challenging the refusal of defendant-appellee, the Board of Appeals of the City of Ames (Ames), to order the issuance of a certificate of occupancy for a portion of a building Chamberlain constructed in the city. The district court denied

Chamberlain's challenge granting Ames's motion for summary judgment and denying Chamberlain's. Chamberlain on appeal contends the district court erred in ruling that its claims of equitable estoppel and promissory estoppel failed as a matter of law. Chamberlain further contends that the issue had been litigated earlier in its favor and that the district court should have found issue preclusion applied. We affirm. I. BACKGROUND. The following facts are generally undisputed. The owners of Chamberlain, L.L.C. envisioned building a mixed use complex near the Iowa State campus. The first floor would contain retail space and the upper floors would contain apartment units. The design for some of the apartments included a loft or shelf area that could be used as sleeping or storage space. The size of the spaces would be similar to lofts often built by students in dormitories. Since the owners were uncertain whether the shelf areas would comply with the city building code requirements, they sought approval from the Ames building official before progressing with the project. In August or September 2003, two Chamberlain owners and their architectural consultant met with the Ames building official and the Ames fire inspector. While the parties dispute whether actual design drawings with

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dimensions were reviewed during the meeting, all agree that the topic of the meeting centered on whether the loft areas would be acceptable under the building and fire codes. The fire inspector expressed concern that additional protections would be needed if the spaces would be used for sleeping. The building official sought input on the design at a staff meeting of city building inspectors. The building official testified the determination from the meeting was, we believe[d] that they could do these platforms with the idea that they are sprinkled above and below. They could not put storage closer than 18 inches to the sprinkler head because that's a violation of the fire code. Need smoke detectors above and below. And we even went so far as to talk in our staff meeting do they need guardrails around these or not . . . and we agreed they should not have guardrails. Because that would invite people to go up there. The building official conveyed the decision to Chamberlain and the architect by phone. The building official's affidavit states that he considered the building code in making his decision, that he interpreted the loft areas to be extensions of other code compliant rooms and thus, excluded from ceiling height restrictions, and that he believed this interpretation was consistent with the building code's intent and purpose. Chamberlain continued to develop the concept and the city issued a building permit in January 2004 after reviewing Chamberlain's phased project plans. Chamberlain built the structure and secured tenants for the units. On June 3, 2004, when building was nearly complete, Chamberlain received a letter from the Ames Fire Chief who was the acting building official at the time. The letter stated that the loft areas did "not meet minimum height requirements for habitable space" and that "[e]vidence has been obtained that the planned use for the loft area is as habitable space." The letter stated that a certificate of

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occupancy would not be issued unless significant modifications were made to the apartments. A memo from the fire chief to the city manager states that

inspectors began noticing that the loft areas would be treated as living space in May of 2004 and that some tenants and parents of tenants complained to the city after being concerned about the reduced height in the loft areas. Chamberlain appealed the fire chief's determinations to the board of appeals. The city attorney advised the board not to consider the fact that

multiple interpretations of the code had been issued. The attorney advised the board only to evaluate whether the current interpretation made by the fire chief acting as building official was reasonable. The board of appeals found the

interpretation not unreasonable and found the certificate of occupancy was properly withheld. Chamberlain was issued a certificate of occupancy after it barricaded the loft areas to prevent their use. Chamberlain filed two actions in district court. First, they filed a petition for writ of certiorari seeking a declaration that Chamblerlain was illegally denied a certificate of occupancy when it justifiably relied on a valid code interpretation made by a previous authorized building official. A second petition was filed in equity contending the city was prevented from applying a new interpretation of the building code through the doctrines of equitable estoppel or promissory estoppel. The cases were consolidated and both parties moved for summary judgment. The district court held that there were no false representations or exceptional circumstances to support an equitable estoppel claim. It held that the original building official's interpretation of the building code was "contrary to the express terms of that code and that the resulting building permit was not

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issued in compliance with the code." The judge determined that Chamberlain had no vested rights in invalid building code interpretations or invalid building permits. The court held Chamberlain's promissory estoppel claim also failed because there was no "clear and definite promise" to enforce. Last, the court rejected Chamberlain's claim that the original building official's determination prevented a new interpretation by the board of appeals through issue preclusion. Chamberlain appeals each of these conclusions. II. SCOPE OF REVIEW. Our standard of review of rulings on motions for City of Johnston v. We review certiorari

summary judgment is for correction of errors at law. Christenson, 718 N.W.2d 290, 296 (Iowa 2006).

proceedings for correction of errors at law also. Stream v. Gordy, 716 N.W.2d 187, 190 (Iowa 2006). Thus, the same standard of review will be applied to each of Chamberlain's claims regardless of whether they arose from the action in equity or the certiorari proceeding. Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). Summary judgment is also appropriate when there is only conflict over the legal consequences that flow from undisputed facts or from the facts viewed in a light most favorable to the resisting party. City of Akron v. Akron Westfield Cmty. Sch. Dist., 659 N.W.2d 223, 225 (Iowa 2003). A writ of certiorari will only be granted if it is authorized by statute or "where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded proper jurisdiction or otherwise acted illegally." Iowa

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R. Civ. P. 1.1401.

The court does not review the fact findings of the lower

tribunal, board, or officer if competent and substantial evidence supported the findings, and the tribunal or officer did not otherwise act illegally. Waddell v. Brooke, 684 N.W.2d 185, 189 (Iowa 2004). Findings of fact by the tribunal or officer that are supported by substantial evidence are binding upon us. Id. at 190. III. EQUITABLE ESTOPPEL. Equitable estoppel is designed to prevent "one party who has made certain representations from taking unfair advantage of another when the party making the representations changes its position to the prejudice of the party who relied upon the representations." ABC Disposal Sys., Inc. v. Dep't. of Natural Res., 681 N.W.2d 596, 606 (Iowa 2004). The required elements are: (1) a false representation or concealment of material facts; (2) a lack of knowledge of the true facts on the part of the actor; (3) the intention that [the representation] be acted upon; and (4) reliance thereon by the party to whom made, to his prejudice and injury. City of Akron, 659 N.W.2d at 226 (citing Johnson v. Johnson, 301 N.W.2d 750, 754 (Iowa 1981)). Also, "[w]e have consistently held equitable estoppel will not lie against a government agency except in exceptional circumstances." Fennelly v. A-1 Mach. & Tool Co., 728 N.W.2d 163, 180 (Iowa 2006) (quoting ABC Disposal Sys., Inc., 681 N.W.2d at 607). Exceptional circumstances will be found when "in addition to the traditional elements of estoppel, the party raising the estoppel proves affirmative misconduct or wrongful conduct by the government or a government agent." Fennelly, 728 N.W.2d at 180 (quoting 28 Am. Jur. 2d Estoppel and Waiver

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