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IN THE SUPREME COURT OF IOWA
No. 85 / 04-1067 No. 86 / 04-1196 Filed September 29, 2006 S.A. SUTTON and FRANCINE BANWARTH, Appellants, vs. DUBUQUE CITY COUNCIL and ROYAL OAKS DEVELOPMENT CORP., Appellees. ---------------------------------------------------S.A. SUTTON and FRANCINE BANWARTH, Appellees, vs. DUBUQUE CITY COUNCIL and ROYAL OAKS DEVELOPMENT CORP., Appellants.

Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.

City and affected developer appeal from judgment voiding amendment to zoning ordinance, asserting that action was barred by limitations; prevailing objectors also appeal. REVERSED ON CITY'S APPEAL;

AFFIRMED ON OBJECTORS' APPEAL.

David L. Hammer and Angela C. Simon of Hammer, Simon & Jensen, Dubuque, for S.A. Sutton and Francine Banwarth.

Barry A. Lindahl and James A. O'Brien, Dubuque, for Dubuque City Council.

2 Stephen J. Juergens of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for Royal Oaks Development Corp.

3 CARTER, Justice. The city council of the City of Dubuque, in its representative capacity, and Royal Oaks Development Corporation, an affected real estate developer, appeal from a judgment that voided an amendment to the zoning ordinances of the City of Dubuque. 1 Because there is a community of interest between appellants, we will proceed as if the City were the only appealing party. The appellees are S.A. Sutton and Francine Banwarth, two objectors to the zoning change. The basis for the district court's decision invalidating the rezoning action was that court's finding that the mayor of Dubuque, whose vote was necessary for passage of the challenged zoning change, had a disqualifying conflict of interest. Sutton and Banwarth had advanced other grounds for voiding the ordinance, and they appeal from the trial court's rejection of those assertions. Although separately docketed, the two appeals are The City urges that the mayor did not have a

considered together.

disqualifying conflict of interest, and it also seeks to overturn the judgment on the ground that the present action was barred by limitations. Because we agree with the latter claim, we reverse the judgment of the district court on the City's appeal. We affirm the district court's rulings on the issues raised in the objectors' appeal. On May 8, 2003, the Dubuque City Council passed an ordinance amending the existing zoning code by reclassifying certain described property from a commercial recreation district to a planned unit development (PUD) district with a residential district designation, including a conceptual development plan. The ordinance was passed on a four-tothree vote, with the mayor voting yes.
was determined by pretrial ruling that this action, in legal effect, is against the City, rather than council members.
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4 Sutton and Banwarth initially challenged the rezoning decision with a petition for writ of certiorari pursuant to Iowa Rule of Civil Procedure 1.1401. That action was dismissed as untimely because it had not been brought within thirty days of the challenged action, as required by rule 1.1402(3). They later commenced the present action for declaratory

judgment, seeking to overturn the challenged rezoning on multiple grounds. The City asserted plaintiffs' lack of standing and further asserted that their claims were barred by limitations because certiorari was the exclusive remedy and the time limitations for initiating a certiorari challenge had not been met. The district court rejected the City's standing and timeliness challenges. It rejected all of Sutton's and Banwarth's challenges to the ordinance except their contention involving a disqualifying conflict of interest. Following a trial on that issue, the district court found that the mayor, whose vote was decisive, had a disqualifying conflict of interest because of anticipated real estate commissions that he or his real estate agency might enjoy as a result of the project that was provided for in the PUD zoning plan. I. The City's Appeal. The City contends that Sutton's and Banwarth's claims of illegality were required to be presented by certiorari and were barred by the time limit imposed in Iowa Rule of Civil Procedure 1.1402(3). Our decisions have recognized that certiorari may be a proper remedy for reviewing the legality of decisions made by city councils and county boards of supervisors in zoning matters. Montgomery v. Bremer County Bd. of Supervisors, 299 N.W.2d 687, 692 (Iowa 1980); Smith v. City of Fort Dodge, 160 N.W.2d 492, 495 (Iowa 1968). This recognition rests on the conclusion that the action being reviewed by certiorari is of a quasi-judicial nature. Although

municipal zoning ordinarily involves the enactment of an ordinance, an

5 action that on first blush appears to be legislative in nature, rezoning often takes on a quasi-judicial character by reason of the process by which it is carried out. We defined the nature of a quasi-judicial function in Buechele v. Ray, 219 N.W.2d 679 (Iowa 1974). We stated in that case that a quasijudicial 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." Buechele, 219 N.W.2d at 681. Similar criteria were expressed in Curtis v. Board of Supervisors, 270 N.W.2d 447, 449 (Iowa 1978). The Washington Supreme Court has applied the following principles in determining whether zoning activities are quasi-judicial in character: Zoning decisions may be either administrative or legislative depending upon the nature of the act. . . . . . . [W]hen a municipal legislative body enacts a comprehensive plan and zoning code it acts in a policy making capacity. But in amending a zoning code, or reclassifying land thereunder, the same body, in effect, makes an adjudication between the rights sought by the proponents and those claimed by the opponents of the zoning change. Fleming v. Tacoma, 502 P.2d 327, 331 (1972). The Washington court then set forth a helpful recital of the factors that will render rezoning decisions quasi-judicial in character. Those factors include (1) rezoning ordinarily occurs in response to a citizen application followed by a statutorily mandated public hearing; (2) as a result of such applications, readily identifiable proponents and opponents weigh in on the process; and (3) the decision is localized in its application affecting a particular group of citizens more acutely than the public at large. Id. All of the factors identified by the Washington court in Fleming come into play in the present conflict, a circumstance that leads us to the conclusion that the action of the city

6 council being challenged in the present case was quasi-judicial in character. As such, a challenge to the legality of the action taken was subject to review by certiorari. The quasi-judicial character of municipal rezoning is particularly evident in matters involving PUD zoning. The Florida appellate court in Hirt v. Polk County Board of Commissioners, 578 So. 2d 415 (Fla. Ct. App. 1991), discussed this distinction as follows: [C]reating zoning districts and rezoning land are legislative actions, and . . . trial courts are not permitted to sit as "super zoning boards" and overturn a board's legislative efforts. . . . .... The planned unit development concept varies from the traditional concept of zoning classifications. It permits a flexible approach to the regulation of land uses. Compliance must be measured against certain stated standards. . . . [S]ince the Board was called upon to review an interpretation and application of an ordinance . . . and the ordinance was not challenged per se, the Board's decision was "clearly quasi-judicial." Hirt, 578 So. 2d at 417 (citations omitted) (emphasis added). 2 The

paramount issue for our consideration is whether the availability of certiorari review precluded Sutton and Banwarth from raising their challenge to the rezoning in a declaratory judgment action filed after the time for seeking certiorari review had expired. For reasons that we will discuss, we hold that it did. The argument that the City urges in support of its timeliness challenge to the present action received sympathetic consideration from the

leading authority on zoning law describes planned unit development zoning as a process that "allows [a] municipality to control the development of individual tracts of land by specifying the permissible form of development in accordance with the city's PUD ordinance. . . . The planned unit development process provides more flexibility to municipalities than does traditional Euclidean zoning." 2 R. Anderson, American Law of Zoning 3d

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