iPCSWireless, Inc vs Z Bd AdjusBarry A. Lindahl, Esq.
Corporation Counsel
196 Dubuque Building
700 Locust Street
Dubuque, Iowa 52001-6824
(319) 583-4113
(319) 583-1040 FAX
E-mail: balesq~nwci.net
May 30, 2001
Mayor Pro Temp Joseph Robbins
and City Council Members
50 West 13th Street
Dubuque, IA 52001
RE: iPCS Wireless, inc. v. Zoning Board of Adjustment
Dear Mayor and Council Members:
I am pleased to report to you that Assistant City Attorney James O'Brien has prevailed on a
motion to dismiss this certiorari proceeding against the Zoning Board of Adjustment.
This matter arises out of the denial by the Zoning Board of Adjustment of an application for a
zoning variance and a conditional use permit by iPCS Wireless, Inc.
Mr. O'Brien filed a motion to dismiss the certiorari action on procedural grounds. Enclosed is a
copy of the order of the Iowa District Court for Dubuque County dismissing the actionl
Very sincerely,
Barry Lindahl
Corporation Counsel
BAL/jm
Attachment
Cc~
Michael Van Milligen, City Manager
Merrill Crawford, Cable Franchise Administrator
Laura Carstens, Planning Services Manager
Service People Integrity Responsibility Innovation Teamwork
IN THE DISTRICT COURT OF IOWA, IN AND FOR DUBUQUE COUNTY
IPCS WIRELESS, INC.,
Plaintiff,
VS.
ZONING BOARD OF ADJUSTMENT
OF THE CITY OF DUBUQUE, IOWA,
)
)
) CASE NO. LACV052526
)
) ORDER
Defendant. )
This matter was argued May 24, 2001. The plaintiff appeared through Attorney
Bruce Walker. The defendant appeared through Attorney James O'Brien.
FACTUAL BACKGROUND
The petition for certiorari filed February 23, 2001, discloses that plaintiff is a
Delaware corporation authorized to do business in iowa. Its business is providing
personal wireless communication services. It filed with the defendant Zoning Board of
Adjustment an application for a zoning variance in the City of Dubuque and a conditional
use permit,
November 30, 2000, the defendant heard the plaintiff's applications and denied
both. The plaintiff received a copy of minutes of the meeting denying the request
approximately December 23, 2000. The defendant entered a notice of decision denying
the request November 30, 2000.
January 19, 2001, the plaintiff filed with the defendant a request for rehearing. At
a regularly scheduled meeting January 25, 2001, the defendant considered the request for
rehearing and took no action. The plaintiff's petition for writ of certiorari was filed
within 30 days of the Board's declination to act. Following the filing of the certiorari
action, the defendant moved to dismiss the proceeding bemuse it was not timely initiated
pursuant to Iowa Code Section 414.15.
STATEMENT OF THE ISSUE
The narrow issue to be decided is whether the plaintiff's request for a rehearing
has the effect of extending the date triggering the time limit imposed by Section 414.15,
Code o f Iowa.
dO~:BO I0 8~ AeW ~
ANALYSIS
Section 414.15, Code of Iowa, permit persons aggrieved by decisions of a board
of adjustment to seek further review by the Iowa District Court. It requires that a petition
seeking review "be presented to the Court witlfin 30 days after the filing of the decision
in the office of the board." It's clear from the pled facts of the petition that the plaintiff
did not meet the facial terms of this section. Even if the Court accepts as the date of
filing of the decision as being the date the plaintiffreceived the decision, the petition is
untimely. The filing of the petition is timely only if the request for rehearing effectively
moves the Ixiggering date from the filing of the decision to the disposition of the
rehearing request.
The rules and procedures of the Zoning Board of Adjustment include the
following:
"ARTICLE VI
"REHEARINGS
No applications for rehearings of any decision by the Board of Adjustment shall
be accepted unless:
a)
New evidence is submitted wkich could not reasonably have been
presented at the meeting at which the case was originally heard, and
b)
That said application be made in writing no later than the first
regular meeting succeeding the meeting at which the case was acted
upon, and
c)
A motion is made by a member of the Board to reconsider the case, is
seconded and is carried by not less than three affirmative votes.
The Board, however, may itself consider a rehearing of any decision made by it
provided that:
A motion is made by a Board member of the prevailing vote on the
case in question, is seconded, and is carded by not less than three
affirmative votes, and
b)
That said motion is made not later than the in-st regular meeting
succeeding the meeting at which the case was acted upon.
"3, If a rehearing is granted, the case shall be heard at the next regular meeting,
notification requirements permitting."
2
The Board's own rule concerning rehearings does not address the issue of what
effect a request for rehearing has. It is doubtful that the Board has the ability to modify
statutory requirements in any event. Both parties cite the Court to Chrixchilles v.
Arnolds Park Zoning Board of Adjttstment~ 505 N.W.2d 491 (1993). This appears to be
the only Iowa case concerning Section 414.15, Code, and it does not address the narrow
issue presented by these facts.
In civil cases, the time for appeal is 30 days from the entry of thc judgment. The
filing ora motion for new trial or a Rule 179(b) motion extends the time for appeal to 30
days from the ruling on the motion. Analogy to t/tis situation is of little help, however,
because the extension is specifically provided for in the role that sets the time limit for
appeals. Iowa Rule of Appellate Procedure 5(a). At the same time, an improperly filed
motion, such as an improper Rule 179(b) motion, is ineffective to extend the time for
appeal. Tenney v. AtlanticAssocs., 594 N.W.2d 11, 14 (Iowa 199).
In resolving thc issue, thc trial court elects not to decide whether a request for
rehearing has the effect of extend'mg the time limit. Rather, our analysis concludes that;
even under the Board's roles for rehearings, the plaintiff's application for rehearing was
not proper. The Board's rules require that the rehearing request must be based on new
evidence subn:fitted which could not reasonably have been presented at the meeting at
which the case was odginally heard. The new evidence the plaintiffseeks to rely on is
the existence of the Telecommmficatians Act of 1996 and its application to the facts at
hand. The Court doubts that an argument conceding applicable law qualifies as new
evidence. However, moving beyond that issue, it is clear that the law the plaintiffs seek
to argue existed long before the hearing in question and could easily have been presented
at the original hearing. Resolving all the other questions in the plaintiff's favor for the
sake of argument, the plaintiff still did not file a proper motion for rehear'mg because it
raised no issue that could not reasonably have been presented at the meeting at which the
c~se was originally heard. For this reason, if for no other, the motion for rehearing was
not sufficient to extend the 30~day deadline created in Section 414.15, Code.
ORDER
The motion to dismiss filed by the defendant is granted. The petition for writ of
certiorari filed by IPCS Wireless, Inc. is dismissed at the plaintiff's cost.
Done and Ordered May 25, 2001.
BY THE COURT:
Copy of thisddocument was mailed to
AMY