SCOTT McCLURE, Plaintiff-Appellant, vs. VERIZON WIRELESS, ST. CHARLES TOWER, INC., T & J LAND, INC., BOONE COUNTY, IOWA, and BOONE COUNTY BOARD OF ADJUSTMENT, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 7-394 / 06-0244
Filed October 12, 2007
SCOTT McCLURE,
Plaintiff-Appellant,
vs.
VERIZON WIRELESS, ST. CHARLES TOWER, INC.,
T & J LAND, INC., BOONE COUNTY, IOWA, and
BOONE COUNTY BOARD OF ADJUSTMENT,
Defendants-Appellees.
______________________________________________________________________
Appeal from the Iowa District Court for Boone County, David R. Danilson, Judge.
Appellant Scott McClure appeals the district court’s grant of summary judgment
in favor of appellees Verizon Wireless, St. Charles Tower, Inc., T & J Land, Inc., Boone
County, Iowa, and the Boone County Board of Adjustment. AFFIRMED.
Robert W. Goodwin of Goodwin Law Office, Ames, for appellant.
Barry J. Nadler and Hannah M. Rogers of Nyemaster, Goode, West, Hansell &
O’Brien, P.C., Ames, for appellee Verizon Wireless, Inc.
Neil Shortlidge of Stinson Morrison Hecker, L.L.P., Overland Park, Kansas, for
appellee Verizon Wireless, Inc.
Jim P. Robbins, Boone County Attorney, Boone, for appellees Boone County,
Iowa and Boone County Board of Adjustment.
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Jim Quilty of Crawford Law Firm, Des Moines, for appellee St. Charles Tower,
Inc.
Stephanie Karr of Curtis, Heinz, Garrett & O’Keefe, St. Louis, Missouri, for
appellee St. Charles Tower, Inc.
Loren A. Nalean of Nalean & Nalean, Boone, for appellee T & J Land, Inc.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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VAITHESWARAN, J.
The Boone County Board of Adjustment issued a conditional use permit
authorizing the construction of a cell phone tower opposite Scott McClure’s home.
McClure sued, claiming he should have been notified of the Board’s proceedings by
personal service or by mail, rather than by publication. The district court rejected this
claim and granted summary judgment in favor of several defendants. We affirm.
I.
Background Facts and Proceedings
The undisputed material facts are as follows. McClure learned a cell phone tower
might be built on his neighbor’s property. He asked the Zoning Administrator about the
matter and was advised that several hurdles needed to be overcome.
McClure
subsequently told his neighbor that he did not want the tower built.
Two to three months after the conversation with his neighbor, T & J Land, Inc.
and St. Charles Tower, Inc. applied to the Boone County Zoning Commission for a
conditional use permit to build a wireless communication tower on the property of
McClure’s neighbor. They requested the permit on behalf of Verizon Wireless.
The Zoning Commission had a notice of public hearing published in the local
newspaper.
The notice stated the purpose of the hearing and the location of the
property and provided that “Persons wishing to appear at such hearing may do so in
person, or by attorney, or other representative.” McClure did not see the notice and, as
a result, did not attend the hearing. The Commission recommended approval of the
conditional use permit application. The matter proceeded to the Board of Adjustment.
The Board had two notices of public hearing published in the local newspaper,
one to apprise the public of the originally scheduled date, and another to provide
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notification of a rescheduled hearing date. The second notice was published seven
days before the hearing. McClure did not see these notices either, and as a result, did
not attend the hearing. Following the rescheduled hearing, the Board approved the
permit application.
The cell tower was built between November 2003 and the spring of 2004. In late
2003, McClure asked to attend a Board meeting to discuss the Board’s earlier approval
of the application for a conditional use permit. He later asked to reopen the hearing.
The Board denied the request.
Approximately twenty-six months later, McClure filed a petition for declaratory
judgment asking the district court to “declare and construe the Defendants’ rights to
maintain the cell tower” constructed across the road from his property, and to “enter an
Order requiring said tower to be removed.”
The defendants moved for summary
judgment, asserting the action was untimely.
The district court granted summary
judgment in favor of the defendants, concluding McClure received adequate notice of
the Board’s hearing, an adequate public hearing was held, and the petition for
declaratory judgment was untimely. McClure appealed.
McClure raises several arguments on appeal. We find it necessary to address
only one: Whether the district court erred in upholding the published notice of the Board
hearing on the conditional use permit application. 1
1
The defendants reiterate that the petition for declaratory judgment was untimely. See Sutton
v. Dubuque City Council, 729 N.W.2d 796, 800 (Iowa 2006) (“[P]olicy considerations militate in
favor of a short period of limitations in challenging rezoning based on some claim of illegality in
the enactment of the ordinance.”). However, the issue is not as straightforward as the
defendants suggest, because if the notice was indeed improper, that fact implicates the concept
of subject matter jurisdiction, which may be raised at any time. See Osage Conservation Club
v. Bd. of Supervisors of Mitchell County, 611 N.W.2d 294, 297 (Iowa 2000); Build-A-Rama, Inc.
v. Peck, 475 N.W.2d 225, 227 (Iowa Ct. App. 1991). In addition, the court would likely have to
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II.
Analysis
The Iowa Supreme Court has adopted a reasonableness test for determining the
adequacy of a board of adjustment’s notice of a pending application for a conditional
use permit. Buchholz v. Bd. of Adjustment of Bremer County, 199 N.W.2d 73, 77 (Iowa
1972). In Buchholz, the court stated, “When notice must be given but no method is
prescribed, the notice must be a reasonable one under the circumstances. It must
afford a fair opportunity to appear and object.”
McClure urges that notice by publication was unreasonable because the Board
was acting in a “quasi-judicial function.” He states the Board should have provided him
with notice of the hearing via United States mail or personal service. The defendants
counter that notice by publication was authorized by statute and ordinance and,
therefore, the notice given was reasonable.
Beginning with the defendants’ argument first, we note that the statutory notice
provision and the zoning ordinance on which they rely apply to zoning changes by the
Board of Supervisors rather than the consideration of conditional use permits by the
Board of Adjustment. The two are different. See Iowa Code § 335.6 (2005) (“The
board of supervisors shall provide for the manner in which the regulations and
restrictions and the boundaries of the districts shall be determined . . . .”); Boone
County, Iowa Zoning Ordinance § 30(B)(3) (“[T]he Board of Supervisors shall hold a
public hearing [upon a proposed zoning amendment], and notices thereof shall be
published in accord with Iowa law.”); Id. § 22 (Statement of Intent) (explaining that the
conditional use permit process “provides for flexibility in identifying the special
address the adequacy of the notice in any event. See Restatement (First) of Judgments § 129
cmt. b (1942) (discussing void judgments and “a technical failure of service”).
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conditions” that may make permissible a certain land use otherwise inconsistent with a
zoning district, without “making the Ordinance unreasonably complicated”); Boomhower
v. Cerro Gordo County Bd. of Adjustment, 163 N.W.2d 75, 77 (Iowa 1968)
(“Amendment of a zoning ordinance is a legislative function placed in the board of
supervisors. The board of adjustment which is granted quasi-judicial and administrative
function was not given and should not have veto power over the legislative body.”).
Compare Iowa Code § 335.4 (vesting zoning power in the board of supervisors) with id.
§ 335.15 (granting the power to hear special exceptions to the board of adjustment).
Therefore, the cited statute and ordinance do not directly bear on the adequacy of the
notice issued here.
See Buchholz, 199 N.W.2d at 77 (not imposing on board of
adjustment the statutory notice requirements contained in Iowa Code section 358A.7
(1971) for actions by board of supervisors).
Having said that, we cannot conclude as a matter of law that “reasonable” notice
in this context was notice by personal service or by mail.
In Buchholz, the court
declined to prescribe either of these types of notices even after recognizing that the
granting of a special use permit was a quasi-judicial function. 199 N.W.2d at 77; cf.
Quality Refrigerated Serv., Inc. v. City of Spencer, 586 N.W.2d 202, 206 (Iowa 1998)
(stating in challenge to proposed comprehensive amendments to zoning ordinance,
“[w]e think notice by publication under the circumstances of this case is reasonably
certain to inform those affected”). On the undisputed material facts in this summary
judgment record, 2 we conclude published notice in the local newspaper seven days
2
McClure argues certain facts were in dispute, but we are convinced the facts he raises are not
material to resolve the notice issue. See Bill Grunder’s Sons Constr., Inc. v. Ganzer, 686
N.W.2d 193, 196 (Iowa 2004) (“An issue of fact is ‘material’ only when the dispute is over facts
that might affect the outcome of the suit, given the applicable governing law.”).
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before the scheduled hearing was reasonable as a matter of law. 3 See Perkins ex rel.
Perkins v. Dallas Center-Grimes Cmty. Sch. Dist., 727 N.W.2d 377, 378 (Iowa 2007)
(setting forth standards for review of summary judgment ruling); Farm Bureau Mut. Ins.
Co. v. Milne, 424 N.W.2d 422, 423 (Iowa 1988) (“If the conflict in the record concerns
only the legal consequences flowing from undisputed facts, entry of summary judgment
is proper.”).
AFFIRMED.
3
Our conclusion may have been different had McClure asserted bad faith on the part of the
Board in failing to notify him by other means, but McClure conceded at oral argument this was
not an issue.
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