Ames 2304, LLC v. City of Ames, Zoning Board of Adjustment

IN THE SUPREME COURT OF IOWA

No. 17–1149

Filed March 8, 2019

AMES 2304, LLC,

Appellant,

vs.

CITY OF AMES, ZONING BOARD OF ADJUSTMENT,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Story County, Michael J.

Moon, Judge.

The City of Ames’s Zoning Board of Adjustment seeks further review

of a court of appeals decision sustaining Ames 2304’s writ of certiorari

regarding the legality of the Board’s denial of Ames 2304’s permit for a

proposed interior remodel. WRIT SUSTAINED.

Debra Hulett of Nyemaster Good, P.C., Des Moines, for appellant.

Eric M. Updegraff, Brent L. Hinders, and Hugh J. Cain of Hopkins

& Huebner, P.C., Des Moines, for appellee.

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CHRISTENSEN, Justice.

Ames 2304, LLC (Ames 2304) filed a petition for writ of certiorari

after the City of Ames’s Zoning Board of Adjustment (ZBA) denied Ames

2304’s permit for an interior remodel of a nonconforming use residential

structure. The proposed remodel would increase the number of bedrooms

while maintaining the same number of apartment dwelling units, and the

ZBA determined the zoning ordinance prohibited this increase in

bedrooms because it would increase the intensity of the nonconforming

use. The district court annulled the writ, and the court of appeals reversed

the district court ruling on appeal. The ZBA sought further review.

On our review, we conclude the zoning ordinance defines an

“increase in intensity” as an increase in the number of dwelling units.

Consequently, the ZBA erred in denying Ames 2304’s interior remodeling

permit because the remodel would not increase the number of dwelling

units in the structure. Therefore, we affirm the court of appeals’ decision,

reverse the judgment of the district court, and remand to the district court

for entry of an order sustaining the writ of certiorari.

I. Background Facts and Proceedings.

Ames 2304 owns the property located at 2304 Knapp Street in Ames,

Iowa. The property was originally built as a single-family structure in

1910, and it was converted to its current four one-bedroom apartment

units in 1928. Two apartment units occupy each floor in the two-story

home. The property is zoned low density residential according to the City

of Ames (the City) Municipal Code, which permits only single-family

detached residential dwellings with one dwelling per lot. However, the

property was grandfathered in as a legal nonconforming use and has been

operating as one since the four-unit apartments were established prior to

the City’s current zoning ordinance.

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In April 2016, Ames 2304 sought a building permit to remodel the

property’s interior. 1 Under the proposal, the first floor would transform

from two one-bedroom units into one studio unit and one two-bedroom

unit. Additionally, Ames 2304 would convert the two one-bedroom units

on the second floor into one studio unit and one three-bedroom unit. In

total, Ames 2304 seeks to increase the number of bedrooms from four to

seven while maintaining the same number of apartments after the

remodel. 2 A zoning enforcement officer for the City’s ZBA denied Ames

2304’s building permit on April 19, noting the proposed remodel was not

permitted because the increase in the number of bedrooms constituted a

prohibited increase in the intensity of the nonconforming use. The zoning

enforcement officer informed Ames 2304 that the permit for the proposed

remodel could not “be issued until the remodel reduces the number of

bedrooms for the property to not exceed the allowed four units and four

total bedrooms for the site.”

Ames 2304 filed a timely appeal to the ZBA. The ZBA held a hearing

on June 22 and affirmed the zoning enforcement officer’s decision to deny

the permit by a vote of three to one. In its written decision, the ZBA noted

that “the addition of bedrooms has been in the past and is still considered

to be an intensification of such use.” Additionally, it concluded the change

in the number of bedrooms in the units “intensifies the site requirements

1The City’s Municipal Code states,

No Building/Zoning Permit shall be issued by the Building Official for any

building, building addition, structure, or structural alteration, and no

building or structure shall be erected, added to, or structurally altered,

and no change of use shall be permitted or established unless and until

the Zoning Enforcement Officer certifies that such building structure or

use is in conformity with this Ordinance or is a valid nonconforming use.

Ames, Iowa, Municipal Code § 29.1501(1)(a) (2017).

2TheCity noted throughout the proceedings that it considers studio units to have

one bedroom.

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for the property requiring that additional parking be provided.” The ZBA

determined the City’s zoning ordinance “does not allow increases in

intensity for non-conforming structures undergoing internal remodeling.”

Ames 2304 filed a petition for writ of certiorari on August 23. The

district court conducted a trial on June 14, 2017, in which Ames 2304

presented two arguments in support of its request for the district court to

reverse the ZBA’s decision. First, Ames 2304 argued the ZBA improperly

interpreted section 29.307(2)(a)(ii) of the City of Ames Municipal Code.

Second, Ames 2304 claimed the facts failed to support the ZBA’s finding

that the proposed remodel would increase the intensity of the property’s

nonconforming use. The district court rejected these arguments and

annulled the writ of certiorari.

Ames 2304 filed a notice of appeal to our court on July 14, and we

transferred the case to the court of appeals. On appeal, Ames 2304 argued

(1) the ZBA acted illegally in denying Ames 2304’s permit for the proposed

interior remodel and (2) substantial evidence did not support the ZBA’s

determination that the proposed interior remodel would increase the

intensity. The court of appeals concluded the intensity of the property’s

use is tied to the number of dwelling units. Thus, since Ames 2304 is not

increasing the number of dwelling units in the property, the court of

appeals determined the proposed remodel does not violate the City’s

prohibition against an increase in the intensity of the nonconforming use.

Based on this interpretation of the City’s Municipal Code, the court of

appeals also concluded the ZBA’s findings were not supported by

substantial evidence and the ZBA acted illegally in denying Ames 2304’s

permit for the proposed remodel. The ZBA sought further review, which

we granted.

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II. Standard of Review.

We “review an original certiorari action for the correction of errors at

law.” Vance v. Iowa Dist. Ct., 907 N.W.2d 473, 476 (Iowa 2018). A party

may present a certiorari action “when authorized by a statute or when an

‘inferior tribunal, board, or officer’ exceeded its jurisdiction or otherwise

acted illegally in executing judicial functions.” Bowman v. City of Des

Moines Mun. Hous. Agency, 805 N.W.2d 790, 796 (Iowa 2011) (quoting

Iowa R. Civ. P. 1.1401). “An inferior tribunal commits an illegality if the

decision violates a statute, is not supported by substantial evidence, or is

unreasonable, arbitrary, or capricious.” Id. “Evidence is considered

substantial when reasonable minds could accept it as adequate to reach a

conclusion.” Vance, 907 N.W.2d at 476 (quoting State v. Garrity, 765

N.W.2d 592, 595 (Iowa 2009)). We are bound by the findings in the record

if there is substantial evidence to support the inferior tribunal’s decision.

Bowman, 805 N.W.2d at 796. Finally, “we give deference to the board of

adjustment’s interpretation of its city’s zoning ordinances,” but the “final

construction and interpretation of zoning ordinances is a question of law

for us to decide.” Lauridsen v. Okoboji Bd. of Adjustment, 554 N.W.2d 541,

543 (Iowa 1996).

III. Analysis.

The ZBA maintains the district court correctly determined the ZBA

acted legally and had substantial evidence to support its findings of fact.

However, before we can address the merits of the zoning challenge, we

must first address the ZBA’s error preservation claim. The ZBA argues

Ames 2304 failed to preserve error for our court’s review on its claim that

the prohibition on increases in intensity does not apply to residential

properties under the City ordinance’s definition of “intensity” because it

never raised this claim before the ZBA or district court.

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A. Error Preservation. According to the ZBA, Ames 2304 only

partially preserved error on its claim that the ZBA acted illegally. The ZBA

concedes Ames 2304 preserved error on its argument that the ZBA

improperly interpreted City of Ames Municipal Code section 29.307(2)(a)(ii)

as permissive rather than mandatory. However, the ZBA contends Ames

2304 failed to preserve error on its argument that the City ordinance’s

definition of “intensity” does not apply to residential use because Ames

2304 never raised it until Ames 2304 appealed the district court decision.

The court of appeals concluded Ames 2304 preserved error on all of its

arguments, noting Ames 2304 was merely providing an additional theory

of statutory interpretation on appeal when it raised its claim regarding the

definition of “intensity” instead of advancing a new argument altogether.

We agree that Ames 2304 preserved error.

The parties have consistently disputed the interpretation of the

City’s Municipal Code in their argument over whether an increase in

bedrooms is an increase in the intensity of a nonconforming use under the

City’s Municipal Code. Ames 2304 has maintained the Municipal Code’s

language governing increases in intensity was inapplicable to its

remodeling permit request and no increase in intensity would occur under

its proposed remodel. Before the district court, Ames 2304 stated its

“proposed interior remodeling does not increase the intensity of any

nonconforming use.” The district court concluded that “[t]he Ames ZBA

correctly interpreted the requirements of Section 29.307(2)(a) as

prohibiting an increase in the intensity of a nonconformity through a

remodeling project.” On appeal, Ames 2304 continues to declare that

“[t]he proposed interior-remodeling plan was not an increase in intensity.”

While it is true Ames 2304 did not specifically refer to the definition

of “intensity” under the Municipal Code before the district court, the issue

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of whether the increase in bedrooms constitutes an increase in intensity

of a nonconforming use under the Municipal Code was briefed by both

sides and raised before the ZBA. See State v. Christensen, No. 09–1457,

2010 WL 5276884, at *2 (Iowa Dec. 17, 2010) (per curiam) (“That a party

fails to cite the specific statute or rule in support of an issue at the district

court level is not dispositive of whether the issue has been preserved for

appeal.”). Ames 2304’s reliance on the Municipal Code’s definition of

“intensity” on appeal is simply “additional ammunition for the same

argument [it] made below—not a new argument advanced on appeal.” JBS

Swift & Co. v. Ochoa, 888 N.W.2d 887, 893 (Iowa 2016). In concluding

that Ames 2304 preserved error, it is also important to note this case turns

on statutory interpretation. Our court must consider a statute or

ordinance “in its entirety [and] not just [through] isolated words or

phrases.” State v. Romer, 832 N.W.2d 169, 176 (Iowa 2013) (quoting In re

Estate of Bockwoldt, 814 N.W.2d 215, 223 (Iowa 2012)). Since this case

turns on our interpretation of the City’s Municipal Code, we must properly

consider the Code as a whole—including other references to the term

“intensity” in the City’s zoning chapter of the Code. For these reasons, we

hold Ames 2304 properly preserved error on all of its arguments.

B. The Scope of the Challenged Ordinance. The parties agree the

property at issue has been operating as a legal nonconforming use, but

they dispute whether Ames 2304’s proposed interior remodel is a

prohibited increase in the intensity of the property’s nonconforming use.

A nonconforming use is a use “that lawfully existed prior to the time a

zoning ordinance was enacted or changed, and continues after the

enactment of the ordinance even though the use fails to comply with the

restrictions of the ordinance.” City of Des Moines v. Ogden, 909 N.W.2d

417, 423 (Iowa 2018) (quoting City of Okoboji v. Okoboji Barz, Inc., 746

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N.W.2d 56, 60 (Iowa 2008)). Since a nonconforming use was lawfully in

existence at the time a zoning ordinance was enacted or changed, there is

“a vested right in the continuation of the nonconforming use once the

ordinance takes effect unless the nonconforming use is legally abandoned,

enlarged, or extended.” Id. at 423–24.

These limitations on the nonconforming use of property are

expressed within the City of Ames Municipal Code, which states in relevant

part,

Any use of any structure or lot that was conforming or validly

nonconforming and otherwise lawful at the enactment date of

this ordinance and is nonconforming under the provisions of

this Ordinance or that shall be made nonconforming by a

subsequent amendment, may be continued so long as it

remains otherwise lawful, subject to the standards and

limitations of this Section.

(a) Movement, Alteration and Enlargement.

(i) Enlargement.

a. A nonconforming use may not be

increased in intensity and may not be enlarged, expanded or

extended to occupy parts of another structure or portions of

a lot that it did not occupy on the effective date of this

Ordinance, unless the enlargement, expansion or extension

complies with all requirements for the zone, does not create

an additional nonconformity, and is approved for a Special

Use Permit by the Zoning Board of Adjustment, pursuant to

the procedures of Section 29.1503, excluding

29.1503(4)(b)(vii) of the Review Criteria General Standards,

except as described in subsection b. following.

b. Any building or structure containing

a nonconforming use may be enlarged up to 125% of the floor

area existing on the effective date of this ordinance, provided

that the expanded building or structure complies with all

density, coverage and spatial requirements of the zone in

which it is located.

c. The enlargement of a nonconforming

use that has the effect of making a structure nonconforming,

other than as described in subsection b. above, shall not be

specially permitted pursuant to Section 29.1503, but rather

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shall be construed as a request for a variance, subject to the

procedures of Section 29.1504.

(ii) Exterior or Interior Remodeling or

Improvements to Structure. Exterior or interior remodeling

or improvements to a structure containing a nonconforming

use shall be permitted, provided that any proposed

enlargement, expansion or extension shall be subject to the

provisions set forth in the above paragraph.

Ames, Iowa, Municipal Code § 29.307(2)(a) (2012). The ZBA claims

subsection (ii) governing “Exterior or Interior Remodeling or Improvements

to Structure” incorporated subsection (i)’s prohibition on increases in

intensity of the nonconforming use, so “the ordinance does not allow

increases in intensity for nonconforming structures undergoing internal

remodeling.” Based on this interpretation, the ZBA argues it was

appropriate to deny Ames 2304’s remodeling permit because an increase

from four to seven bedrooms and the additional parking required due to

the increase in bedrooms constitutes a prohibited increase in intensity of

the nonconforming use.

We apply our general rules of statutory construction to interpret an

ambiguous ordinance. City of Okoboji v. Okoboji Barz, Inc., 717 N.W.2d

310, 314 (Iowa 2006). An ordinance is ambiguous “if reasonable persons

can disagree” on its meaning. Id. “An ambiguity may arise from the

meaning of particular words or from the general scope and meaning of a

statute in its totality.” Id. In this case, the ZBA concedes section 29.307(2)

is ambiguous, and we agree given the conflicting rulings in this case.

Thus, we must apply our general rules of statutory construction. Id.

Our goal in interpreting a statute is to determine legislative intent.

Id. In doing so, we examine the words the legislature chose in the

ordinance rather than pondering what the legislature “should or might

have said.” Id. (quoting Auen v. Alcoholic Beverages Div., 679 N.W.2d 586,

590 (Iowa 2004)). Unless the ordinance defines a word or uses a word with

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an established legal meaning, we give the words in the ordinance their

“ordinary and common meaning by considering the context within which

they are used.” Id. (quoting Auen, 679 N.W.2d at 590). We also consider

the ordinance in its entirety to give it its “natural and intended meaning.”

Id.

To determine whether Ames 2304’s proposed increase in the number

of bedrooms constitutes a prohibited increase in the intensity of the

nonconforming use, we first must determine whether section

29.307(2)(a)(i), which governs the enlargement of a nonconforming use,

applies to the interior remodeling discussed in section 29.307(2)(a)(ii) of

the Municipal Code. The relevant portion of section 29.307(2)(a)(i) states,

“A nonconforming use may not be increased in intensity and may not be

enlarged, expanded, or extended to occupy parts of another structure or

portions of a lot that it did not occupy.” Ames, Iowa, Municipal Code

§ 29.307(2)(a)(i)(a) (emphasis added). Section 29.307(2)(a)(ii) provides in

relevant part, “interior remodeling or improvements to a structure

containing a nonconforming use shall be permitted, provided that any

proposed enlargement, expansion or extension shall be subject to the

provisions set forth in the above paragraph.” Id. § 29.307(2)(a)(ii). Thus,

Ames 2304 contends, the City must permit Ames 2304’s interior

remodeling permit because the remodel does not change the structure’s

size. This proposed interpretation appears to focus solely on the first part

of section 29.307(2)(a)(ii) and ignores the restrictions after the word

“provided.” Nevertheless, this proposed interpretation is nonsensical

when read in the greater context of the City’s zoning code.

As the district court noted, under this interpretation, Ames 2304

“could remodel the existing structure to add 50 occupants and the Ames

ZBA could not prevent such a remodeling as long as the building’s interior

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dimensions did not change.” This result contravenes the City’s purpose of

its ordinance governing nonconformities, which states,

It is the general policy of the City to allow uses, structures,

and lots that came into existence legally, in conformance with

then-applicable requirements, to continue to exist and be put

to productive use, but to mitigate adverse impact on

conforming uses in the vicinity. This Section establishes

regulations governing uses, structures and lots that were

lawfully established but that do not conform to one or more

existing requirements of this Ordinance. The regulations of

this Section are intended to:

(i) Recognize the interests of property owners in

continuing to use the property;

(ii) Promote reuse and rehabilitation of existing

buildings; and

(iii) Place reasonable limits on the expansion of

nonconformities that have the potential to adversely affect

surrounding properties and the community as a whole.

Id. § 29.307(1)(a). In light of the City’s purpose to reasonably limit property

owners from expanding nonconformities that could potentially adversely

impact the surrounding area and greater community, we cannot imagine

the City intended to give property owners the ability to increase the

intensity of the nonconformance carte blanche so long as the property

owners did not alter the building’s interior dimensions. See Brakke v. Iowa

Dep’t of Nat. Res., 897 N.W.2d 522, 537 (Iowa 2017) (“It is universally

accepted that where statutory terms are ambiguous, courts should

interpret the statute in a reasonable fashion to avoid absurd results.”).

Consequently, we agree with the ZBA and lower courts that section

29.307(2)(a)(ii)’s reference to section 29.307(2)(a)(i) incorporates section

29.307(2)(a)(i)’s prohibition on increases in the intensity of a

nonconforming use. However, this does not end our analysis, as we must

determine whether Ames 2304’s proposed interior remodel constitutes an

increase in intensity under section 29.307(2).

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C. The Intensity of a Nonconforming Use. The City zoning code

defines “intensity” as “the degree or level of concentration to which land is

used for commercial, industrial or any other nonresidential purpose.”

Ames, Iowa, Municipal Code § 29.201(109) (2017). Yet, the ordinance does

not define “intensity” concerning residential purposes, which is how Ames

2304 uses its structure. 3 According to Ames 2304, this renders “intensity”

inapplicable to a residential use, so a residential use like Ames 2304’s

apartment building can never increase in intensity under the ordinance.

This reading of the zoning code is inappropriate for a couple reasons.

First, the ordinance governing nonconforming uses refers to structures in

general and does not distinguish between residential and nonresidential

structures that are nonconforming. See Ames, Iowa, Municipal Code

§ 29.307. To apply Ames 2304’s proposed interpretation, we would have

to read a distinction into the ordinance that does not exist. “[W]e may not

read language into the [ordinance] that is not evident from the language

the legislature has chosen.” Jahnke v. Deere & Co., 912 N.W.2d 136, 143

(Iowa 2018). Second, this interpretation would create absurd results, as

it would lead to virtually no regulation of nonconforming uses for

residential purposes that could allow a property owner to expand his or

her residential nonconforming use to include an unlimited number of

bedrooms and residents so long as there are five or less unrelated persons

living in each residential unit. See Ames, Iowa, Municipal Code

§ 29.201(14) (“Apartment dwellings may be occupied by families only, or

by a group of unrelated persons limited to five or less per residential

unit.”); see also Brakke, 897 N.W.2d at 534 (“[C]ourts should interpret the

3Ames 2304 is considered an apartment dwelling because it contains more than

three residential units. Ames, Iowa, Municipal Code § 29.201(14). An apartment dwelling

is considered residential under the City’s zoning code if it has twelve units or less. Id.

§ 29.702, tbl. 29.702(2) (2017).

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statute in a reasonable fashion to avoid absurd results.”). For these

reasons, the ordinance’s prohibition against increases in intensity of

nonconforming uses is applicable to residential structures. Therefore, we

must determine the definition of “intensity” in order to analyze whether

Ames 2304’s proposed interior remodel constitutes an increase in intensity

under the ordinance.

Though section 29.307(2) does not define “intensity,” our

examination of section 29.307 as a whole gives us a clue as to the meaning

of intensity concerning residential structures that operate as a

nonconforming use. See State v. Iowa Dist. Ct., 889 N.W.2d 467, 473 (Iowa

2017) (noting other parts of a statute may inform the court’s resolution of

a statutory ambiguity). Section 29.307(3)(c) governs the restoration of a

damaged nonconforming structure and allows property owners to rebuild

a nonconforming structure damaged by natural disaster to the extent of

70% or less of its assessed value, “provided such rebuilding does not

increase the intensity of use, as determined by the number of dwelling units

(for residences).” Ames, Iowa, Municipal Code § 29.307(3)(c) (emphasis

added). Thus, section 29.307(3)(c) connects the intensity of a residential

nonconforming use to the number of dwelling units, and we interpret

section 29.307(2)(a)’s prohibition on increases in intensity to provide

“intensity” with the same connection to the number of dwelling units.

Since Ames 2304’s proposed interior remodel does not increase the

number of dwelling units in the structure, we affirm the decision of the

court of appeals and reverse the district court judgment. There was not

substantial evidence to support the ZBA’s findings, and it was erroneous

for the ZBA to deny Ames 2304’s permit on the basis that the remodel

would increase the intensity of the nonconforming use.

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IV. Conclusion.

For the aforementioned reasons, we affirm the court of appeals

decision, reverse the judgment of the district court, and remand to the

district court for entry of an order sustaining the writ of certiorari.

WRIT SUSTAINED.

All justices concur except McDonald, J., who takes no part.