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IN THE COURT OF APPEALS OF IOWA No. 9-450 / 08-1704 Filed October 7, 2009 MARIANNE CRAFT NORTON TRUST, Plaintiff-Appellant, vs. CITY COUNCIL OF HUDSON, IOWA, TIMOTHY L. MANATT, GENEVIEVE L. MANATT, GALE M. PETERSON, JR., and REBECCA RAE PETERSON, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.

Appeal from denial of writ of certiorari challenging citys rezoning of land from suburban agricultural to large-lot residential. AFFIRMED.

Wallace Taylor, Cedar Rapids, for appellant. Natalie Burris and Beth Hansen of Swisher & Cohrt, P.L.C., Waterloo, for appellee city council. Richard Morris and Katie Mitchell of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellees Manatt and Peterson.

Heard by Sackett, C.J., and Eisenhauer and Doyle, JJ.

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SACKETT, C.J. Plaintiff-appellant, Marianne Craft Norton Trust, appeals from the district court ruling that overruled its petition for writ of certiorari, challenging the citys decision to rezone forty acres of land from suburban agricultural to large-lot residential. Appellant contends the rezoning (1) did not follow the requirements in Iowa Code section 414.3 (2007), and (2) was arbitrary and capricious, an abuse of discretion, and not based on substantial evidence. We affirm. BACKGROUND AND PROCEEDINGS. Defendants-appellees, Manatts and Petersons, own eighty acres of land on the west side of Highway 58, north of the core of the city of Hudson. The eastern forty acres lie within the city limits and are the subject of this appeal. Appellant owns eighty acres of land west of Highway 58 that is immediately south of the forty acres at issue. Although the land along both sides of Highway 58 north of the city core is primarily farm land, there are more than twenty homes in the four-mile corridor between the city core and Highway 20. In October of 2006 the city adopted an updated comprehensive plan that designated an area of land of approximately 160 acres along the west side of Highway 58 between the core of the city and Highway 20 for future residential use. The land designated for future residential use includes forty acres of appellees land, forty acres of appellants land, and about eighty acres to the north of appellees land. In November of 2006 Timothy Manatt filed an application for rezoning, seeking to have the appellees forty acres at issue rezoned from A-1 suburban agricultural to R-5 large-lot residential. The proposed plat submitted with the

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rezoning request showed four residential lots--each larger than four and one-half acres, one residential lot of three and one-third acres, and two tracts of undeveloped space along Highway 58 totaling nearly fourteen acres. Manatts and Petersons planned to live on two of the residential lots and to offer the other three for sale. After a time for public comment, the Hudson Planning and Zoning Commission voted in January of 2007 to recommend the request for rezoning to the Hudson City Council. After public hearings in February and March, the city council voted in April to rezone the property as requested. In May, plaintiff filed a petition for writ of certiorari, alleging the rezoning was illegal, arbitrary and capricious, unreasonable, not based on substantial evidence, and an abuse of discretion. The petition was heard in April of 2008. With the parties agreement the court made its own independent inspection of the Highway 58 area between Highway 20 and downtown Hudson. It also heard testimony from several witnesses, received exhibits, and considered arguments, authorities, and briefs submitted by the parties. The court found the character of the area in question, while once primarily agricultural, "has changed significantly" and "visually appears to be more rural residential than agricultural." The court found the city council members gave proper reasons for granting the rezoning request and "gave consideration to appropriate factors to be considered." The court compared the permitted uses in A-1 and R-5 and found them "quite similar and compatible," although "R-5 is, in fact, more restrictive in terms of permitted uses." The court determined, "even if

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the ordinance does fit within the definition of spot zoning, it is not illegal " in that the rezoning relates to an object within the police power of the city, there was a reasonable basis for making a distinction between the rezoned property and the surrounding property, and the rezoning was consistent with the comprehensive plan. The court overruled the petition for writ of certiorari, concluding plaintiff failed to meet its burden of proof that the city council acted illegally, improperly, arbitrarily, capriciously, or in a discriminatory manner. The court further

concluded the city council did not abuse its discretion in granting the rezoning request. SCOPE OF REVIEW. Appeal of certiorari proceeding is "governed by the rules applicable to appeals in ordinary actions." Iowa R. Civ. P. 1.1412. Thus, our review is limited to correction of errors at law, and we are bound by the findings of the trial court if they are supported by substantial evidence in the record. Iowa R. App. P. 6.14(6)(a); accord Osage Conservation Club v. Bd. of Supervisors, 611 N.W.2d 294, 296 (Iowa 2000). "A writ of certiorari is proper under Iowa Rule of Civil Procedure [1.1401] when one ,,exercising judicial functions . . . is alleged to have . . . acted illegally." Dressler v. Iowa Dep't of Transp., 542 N.W.2d 563, 564 (Iowa 1996) (quoting Iowa R. Civ. P. [1.1401]). "An illegality is established if the board has not acted in accordance with a statute; if its decision was not supported by substantial evidence; or if its actions were unreasonable, arbitrary, or capricious." Norland v. Worth County Comp. Bd., 323 N.W.2d 251, 253 (Iowa 1982).

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In reviewing the statutory language of section 335.21, which is identical to the language in section 414.18 that is relevant to our appeal, the supreme court stated: In a certiorari proceeding in a zoning case the district court finds the facts anew on the record made in the certiorari proceeding. That record will include the return to the writ and any additional evidence which may have been offered by the parties. However, the district court is not free to decide the case anew. Illegality of the challenged board action is established by reason of the court s findings of fact if they do not provide substantial support for the board decision. If the district courts findings of fact leave the reasonableness of the boards action open to a fair difference of opinion, the court may not substitute its decision for that of the board. Fox v. Polk County Bd. of Supervisors, 569 N.W.2d 503, 507 (Iowa 1997) (quoting Helmke v. Bd. of Adjustment, 418 N.W.2d 346, 347 (Iowa 1988) (citation omitted)). There is a strong presumption of the validity of a city ordinance,

including any amendments. Neuzil v. City of Iowa City, 451 N.W.2d 159, 163 (Iowa 1990). "Courts reviewing zoning ordinances should not substitute their judgment as to the propriety of the citys action when the reasonableness of the ordinance or its amendment is fairly debatable." Id. at 166. IOWA CODE SECTION 414.3. Appellant contends the rezoning does not comply with the statutory requirements for zoning in section 414.3. The statute provides, in relevant part: The regulations shall be made in accordance with a comprehensive plan and designed to preserve the availability of agricultural land; to consider the protection of soil from wind and water erosion; to encourage efficient urban development patterns; to lessen congestion in the street; to secure safety from fire, flood, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to promote the conservation of energy resources; to promote

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reasonable access to solar energy; and to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. . . . Such regulations shall be made with reasonable consideration, among other things, as to the character of the area of the district and the peculiar suitability of such area for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city. Appellant argues the city council did not follow the elements of this section when deciding to rezone the property. Appellant argues through each of the sixteen statutory elements in addition to the goals stated in the citys comprehensive plan and the statements of development policy in the plan. Appellant argues the city council, in performing a quasi-judicial function, should have made findings. See Sutton v. Dubuque City Council, 729 N.W.2d 796, 798 (Iowa 2007) (noting a "quasi-judicial function is involved if the activity (1) involves proceedings in which notice and an opportunity to be heard are required, or (2) a determination of rights of parties is made which requires the exercise of discretion in finding facts and applying the law thereto"). Appellees respond that the city council, and the district court when considering the petition for writ of certiorari, considered the statutory elements that are applicable under the circumstances. They assert substantial evidence supports the actions of the council and the decision of the court. The city council minutes show the council received and considered public input more than once, considered the statements of the citys zoning administrator, considered the recommendation of the planning and zoning commission, discussed the issue at more than one meeting, and made a decision. Although appellant suggests the city council did not comply with

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section 414.3 in that it did not address each statutory element in making its decision and because no substantial evidence supports a decision based on the statutory elements, the district court considered the applicable elements and concluded otherwise. Because the court did not expressly mention the statutory elements as it considered them, appellant moved the court to amend or enlarge its findings and modify its ruling. In its ruling on the motion, the court stated it "gave consideration to the factors set forth in that code section, to the extent applicable." The court also stated it did not "read Sutton as requiring a council to issue written findings." From our reading of section 414.3, it is clear not all the elements listed apply to every zoning decision or to the decision before us. A primary

consideration of the statute is that zoning must be "in accordance with a comprehensive plan." Iowa Code

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