CITY OF JOHNSTON, Plaintiff-Appellant, vs. ANDREW CHRISTENSON, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-1015 / 07-1857
Filed May 6, 2009
CITY OF JOHNSTON,
Plaintiff-Appellant,
vs.
ANDREW CHRISTENSON,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.
The City of Johnston appeals from a district court ruling on remand
dismissing its petition for declaratory judgment. REVERSED AND REMANDED.
J. Russell Hixson of Hixson & Brown, P.C., Clive, for appellant.
Frank Murray Smith and Tyler Murray Smith, Des Moines, for appellee.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
2
MILLER, J.
We filed our opinion in this appeal on April 8, 2009, but subsequently
granted the plaintiff-appellant City of Johnston‟s petition for rehearing. Our April
8, 2009 decision is hereby vacated and this opinion replaces it.
The City of Johnston (City) appeals from a district court ruling on remand
dismissing its petition for declaratory judgment against Andrew Christenson. We
reverse the judgment of the district court and remand for further proceedings in
this protracted dispute over Christenson‟s desire to build an accessory structure
on his land to house his horses.
I.
BACKGROUND FACTS AND PROCEEDINGS.
This is the second appeal in a case with a lengthy and complex procedural
history. See City of Johnston v. Christenson, 718 N.W.2d 290 (Iowa 2006). The
parties‟ dispute centers on a 9.7-acre tract of land owned by Christenson in the
City of Johnston. As the Iowa Supreme Court stated in the first appeal in this
case, that tract of land “is an island of bygone days, encased within a
progressive, vibrant, rapidly sprawling metropolitan suburb.” Id. at 293.
Prior to the City‟s incorporation in 1969, the land was used for agricultural
purposes. When Christenson purchased the property in 1990, a single-family
residence, a detached garage, and five outbuildings were located on it. The
outbuildings consisted of a small barn, a tack shed, a farrier shed, a grain shed,
and an insulated shed. Much of the land was enclosed by a fence to retain farm
animals. Although the land is now located in a mixed-use center district of the
City that includes a mixture of residential, office, and commercial uses,
3
Christenson continued to legally use it for agricultural purposes as a preexisting,
nonconforming use. He kept several horses on his property and maintained a
large portion of it as pasture for the horses.
In 1998, the detached garage and all of the outbuildings on Christenson‟s
land were destroyed or damaged beyond repair by a severe storm. Christenson
had used those buildings to store horse tack and related equipment, feed, and
other supplies for his horses. He also occasionally put some of the horses in the
buildings during inclement weather or for veterinarian visits.
After the storm, Christenson approached the city‟s zoning administrator
about building a large accessory structure on the portion of his property that he
used as pasture to replace the buildings that were destroyed.
He proposed
constructing a 16,000 square foot structure to be used for storage of feed and
supplies, personal property, vehicles, and horses. He also envisioned using part
of the building for exercising and training his horses.
Christenson filed an
application with the board of adjustment for a special exception to exceed the
maximum area limitation of 3600 square feet for accessory structures.
He
additionally requested a variance from the fifteen-foot height restriction.
A hearing on Christenson‟s application was held on December 20, 2001.
The city‟s zoning administrator informed the board in a written report prepared
prior to the hearing that although “Christenson‟s horses are lawful, nonconforming uses,” his proposed structure could conflict with the purpose of the
city‟s nonconforming-use ordinances.
Despite the concern expressed by the
zoning administrator, the board ultimately passed a resolution approving the
4
special exception for area and granting a variance for height. It found, in relevant
part, that the building size was “appropriate for the intended use as storage for
equipment and an exercise area for horses.”
A condition of the board‟s
resolution required Christenson to submit a site plan for approval by the planning
and zoning commission and the city council.
The city council thereafter requested the board to reconsider its resolution
following an opinion by the city attorney that the intended use of the structure for
horses was prohibited under several city ordinances as an illegal expansion of a
nonconforming use. In expressing that opinion, the city attorney “assumed that
Mr. Christenson has been pasturing his horses on the entire 9.72 acres for a
number of years and that the use of his land for such purpose is a legal
nonconforming use.” He nonetheless concluded that Christenson “would not be
allowed to erect an entirely new building or structure („building use‟), simply
because it would be used in conjunction with his nonconforming „land use.‟” The
board of adjustment reconsidered the matter at a hearing on January 31, 2002.
After discussing the concerns raised by the city attorney, the board voted in favor
of confirming its prior resolution.
The City filed a petition for writ of certiorari with the district court,
challenging the decision of the board of adjustment. Christenson then submitted
a site plan to the planning and zoning commission and the city council for its
approval.
The City declined to take action on the site plan, instead filing a
petition for declaratory judgment requesting the district court to declare that it
was not obligated to approve the plan because it revealed the intended “use of
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the proposed structure” would violate various city ordinances. The City claimed
that the use of the structure for horses was not a permitted use under Johnston
Municipal Code section 17.10.182.40, which sets forth the permitted uses for
accessory buildings.
It additionally claimed the site plan violated the
nonconforming-use-of-land provisions under section 17.04.1501 and the
nonconforming-use-of-structure provisions under section 17.04.160, specifically
subsection (G).2
The district court stayed the writ of certiorari action and considered the
declaratory judgment action on the summary judgment motions filed by each
party. It granted summary judgment in favor of the City upon its conclusion that
Christenson‟s proposed structure would violate sections 17.10.182.40 and
1
Section 17.04.150 provides that the
lawful use of land upon which no building or structure is erected or
constructed which becomes non-conforming . . . may be continued so
long as it remains otherwise lawful, subject to the following provisions:
A. No such non-conforming use of land shall be enlarged or
increased nor extended to occupy a greater area of land than was
occupied at the effective date of adoption or amendment of this
ordinance;
B. No such non-conforming use of land shall be moved in whole or
in part to any other portion of the lot or parcel which was not occupied by
such use at the effective date of adoption or amendment of this
ordinance;
C. If any such non-conforming use of land ceases for any reason
for a period of more than six (6) months, any subsequent use of such land
shall conform to the district regulations for the district in which such land
is located.
2
Section 17.04.160 states that the
lawful use of a building or structure and adjacent land which is part of the
plot upon which the building or structure is located, which becomes nonconforming . . . may be continued so long as it remains otherwise lawful,
subject to the following provisions:
....
G. Any structure devoted to a use made non-conforming by this
ordinance that is destroyed or has substantial damage by any means to
an extent of fifty (50) percent or more of its replacement cost at the time
of destruction . . . shall not be reconstructed and used as before such
event.
6
17.04.160(G).
Both parties filed motions pursuant to Iowa Rule of Civil
Procedure 1.904(2). Following a hearing, in a ruling filed January 14, 2004, the
district court granted the City‟s 1.904(2) motion and expanded its summary
judgment ruling to find that “all of the six structures at issue on Christenson‟s land
were either destroyed or damaged beyond repair, which eliminated the nonconforming use status of the land” pursuant to section 17.04.160(F).3
Christenson
appealed,
claiming
the
issues
of
permitted
and
nonconforming uses were the same issues raised and decided adversely to the
City in the board of adjustment action, and the doctrine of issue preclusion thus
precluded the City from raising the issues again in the exercise of its authority to
approve the site plan. Our supreme court agreed in part, concluding “the issue of
whether Christenson‟s proposed use of the structure was permitted under the
zoning ordinance was actually decided by the board of adjustment when it voted
to reaffirm its decision to grant a special exception and variance . . . .”
Christenson, 718 N.W.2d at 302. The court accordingly reversed the contrary
judgment of the district court and remanded for further proceedings. However, in
so doing, it observed
that the summary judgment entered by the district court in this case
granted additional relief in the form of a declaration that the prior
nonconforming status of the land was eliminated, an issue not
raised by Christenson on appeal or discussed by the parties in the
appeal. We only decide appeals within the framework of the issues
raised, and we leave it to the district court on remand to determine
the viability of any portion of its judgment not challenged in this
appeal.
3
That subsection states in relevant part that “[w]here non-conforming use status applies
to a structure and land in combination, removal or destruction of the structure shall
eliminate the non-conforming status of the land.”
Johnston Municipal Code §
17.04.160(F).
7
Id. at 303 n.5.4
On remand, Christenson filed a motion to determine the viability of the
district court‟s rulings on the parties‟ summary judgment motions in the
declaratory judgment proceeding. He asserted, in relevant part, that the doctrine
of issue preclusion applied to bar the City from litigating the nonconforming
status of Christenson‟s land because the board approved that use when it
granted the special exception and variance for Christenson‟s proposed
accessory building. The district court agreed and entered an order finding the
City is “barred by issue preclusion from relitigating the use of the underlying land
in this Declaratory Judgment case.” The court accordingly vacated its earlier
summary judgment ruling and dismissed the City‟s declaratory judgment action,
finding it “may argue the illegality of the Board‟s action in the Certiorari case.”
The City appeals. It claims the district court on remand erred in applying
the doctrine of issue preclusion with respect to the issue of whether the
nonconforming status of Christenson‟s land was eliminated under section
17.04.160(F). It also claims the district court on remand lacked the jurisdiction or
authority to vacate its January 14, 2004 ruling.
II.
SCOPE AND STANDARDS OF REVIEW.
The parties agree that our review of this case is for the correction of errors
at law. See Iowa R. App. P. 6.4; Smith v. Bertram, 603 N.W.2d 568, 570 (Iowa
4
The court added this language to its original opinion in Christenson following a petition
for rehearing submitted by the City, which requested the court limit its opinion to
Christenson‟s proposed use of the structure because Christenson had not appealed the
district court‟s determination that he lost his nonconforming use of the land under section
17.04.160(F).
8
1999) (stating a declaratory judgment tried as an action at law is reviewed to
correct errors at law). The district court‟s findings of fact are therefore binding
upon us if those facts are supported by substantial evidence. Iowa R. App.
6.14(6)(a).
The court‟s legal conclusions, however, are not.
Tim O’Neill
Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996).
III.
MERITS.
In support of its claim that the district court erred in applying the doctrine
of issue preclusion, the City argues that it did not actually litigate the issue of
whether Christenson lost the nonconforming use of his land for horses under
section 17.04.160(F) in the board of adjustment action. We agree.
Under the doctrine of issue preclusion, when an issue has once been
determined by a valid and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit. Christenson, 718 N.W.2d at 297.
Issue preclusion serves two purposes: (1) “to protect litigants from „the vexation
of relitigating identical issues with identical parties or those persons with a
significant connected interest to the prior litigation,‟” and (2) “to further „the
interest of judicial economy and efficiency by preventing unnecessary litigation.‟”
Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 571-72 (Iowa 2006)
(citations omitted). In order for the prior determination to have a preclusive effect
in subsequent litigation, the following four elements must be met:
(1) the issue determined in the prior action is identical to the
present issue; (2) the issue was raised and litigated in the prior
action; (3) the issue was material and relevant to the disposition in
the prior action; and (4) the determination made of the issue in the
prior action was necessary and essential to that resulting judgment.
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Id. at 572.
The element in question in this case is whether the status of Christenson‟s
nonconforming use of his land was “raised and litigated” in the board of
adjustment proceedings.5 “Iowa law is clear that issue preclusion requires that
the issue was „actually litigated‟ in the prior proceeding.”
Id.; see also
Restatement (Second) of Judgments, § 27 at 250 (1982) (“When an issue of fact
or law is actually litigated and determined by a valid and final judgment, and the
determination is essential to the judgment, the determination is conclusive in a
subsequent action between the parties, whether on the same or a different
claim.”).
An issue is not actually litigated if the defendant might have
interposed it as an affirmative defense but failed to do so; nor is it
actually litigated if it is raised by a material allegation of the party‟s
pleading but is admitted (explicitly or by virtue of a failure to deny)
in a responsive pleading; nor is it actually litigated if it is raised in an
allegation by one party and is admitted by the other before
evidence on the issue is adduced at trial; nor is it actually litigated if
it is the subject of a stipulation between the parties . . . .
Restatement (Second) of Judgments § 27 cmt. e, at 256; see also Winnebago,
727 N.W.2d at 572 (quoting with approval Restatement (Second) of Judgments §
27 cmt. e). Thus, facts determined by admissions are generally not entitled to
preclusive effect, because facts so determined are not actually litigated. See 50
C.J.S. Judgments § 813, at 381 (1997).
Here, the City admitted in the board of adjustment action that
Christenson‟s use of his land for horses was a valid nonconforming use, but
5
We note that, as in the first appeal, the parties do not dispute that a decision by the
board of adjustment can have a preclusive effect. See Christenson, 718 N.W.2d at 298
(recognizing an administrative adjudication by an entity such as the board of adjustment
can have a preclusive effect in a judicial proceeding).
10
argued that his proposed structure would be an illegal expansion of that
nonconforming use. The prehearing report prepared by the city‟s zoning
administrator stated, “Christenson‟s horses are lawful, non-conforming uses.” He
further explained to the board at the hearing that Christenson‟s use of his land for
horses was “lawful, it‟s legal, but it‟s non-conforming, so it can‟t be expanded.”
After the board passed its resolution approving Christenson‟s applications for a
special exception and variance, the city attorney prepared a letter at the request
of the city‟s zoning administrator and the city council regarding the legality of the
board‟s resolution. In that letter, the city attorney stated, “[I]t is assumed that Mr.
Christenson has been pasturing his horses on the entire 9.72 acres for a number
of years and that the use of his land for such purpose is a legal nonconforming
use.” The City continued in that vein in the certiorari action, in which it admitted
in its trial brief that “Christenson‟s horses and the use of his land for pasturing the
horses are considered a legal non-conforming use of the land.”
In light of the foregoing, we agree with the City that its admission
regarding the nonconforming use status of Christenson‟s land in the board of
adjustment proceedings did not constitute actual litigation of that issue for the
purpose of applying issue preclusion.
See Winnebago, 727 N.W.2d at 572
(finding employer‟s admission of liability in an alternate-care proceeding did not
constitute actual litigation for issue preclusion purposes); accord Tyson Foods,
Inc. v. Hedlund, 740 N.W.2d 192, 195 (Iowa 2007). We conclude the doctrine of
issue preclusion did not prevent the City from litigating in this declaratory
11
judgment action the issue of whether Christenson lost the nonconforming use of
his land for horses.
Christenson argues that the City should nevertheless be judicially
estopped from litigating the nonconforming use status of his land. We do not
agree.
The doctrine of judicial estoppel prohibits a party who has successfully
and unequivocally asserted a position in one proceeding from asserting an
inconsistent position in a subsequent proceeding. Winnebago, 727 N.W.2d at
573. “It is a „common sense‟ rule, designed to protect the integrity of the judicial
process by preventing deliberately inconsistent—and potentially misleading—
assertions from being successfully urged in succeeding tribunals.” Id. Judicial
estoppel may apply in situations where issue preclusion would not. Whitacre
P’ship v. Biosignia, Inc., 591 S.E.2d 870, 881 (N.C. 2004).
This is in part
because judicial estoppel does not require that an issue actually have been
litigated in a prior proceeding. Id.
Christenson raised the doctrine of judicial estoppel for the first time in this
case in the second appeal from the district court proceedings. Although the
doctrine “may properly be raised by courts, even at the appellate stage, on their
own motion,” Winnebago, 727 N.W.2d at 573, it “applies only when needed to
protect the integrity of the judicial process.” Tyson Foods, 740 N.W.2d at 199;
see also Whitacre P’ship, 591 S.E.2d at 887 (describing judicial estoppel as a
discretionary equitable doctrine). Moreover, our courts have “been flexible in our
past application of the doctrine and view its flexible parameters as a strength in
12
its ability to achieve its goal” of protecting the integrity of the judicial process.
Tyson Foods, 740 N.W.2d at 196; see also Vennerberg Farms, Inc. v. IGF Ins.
Co., 405 N.W.2d 810, 814 (Iowa 1987) (noting judicial estoppel has been
sparingly applied in other jurisdictions and only alluded to in our own). We do not
believe application of the doctrine in this case will further the goal of protecting
the integrity of the judicial process where the doctrine was not raised until the
second appeal in a case that has been pending for several years.
As noted above, the City also claims the district court on remand erred in
vacating its January 14, 2004 ruling.
The City argues that when an issue
decided by that ruling, that Christenson had lost the nonconforming use of his
land for his horses, was not raised by Christenson in his ensuing appeal it
became a final judgment and was not subject to change on remand. We agree.
In Gail v. Western Convenience Stores, 434 N.W.2d 862 (Iowa 1989), Gail
was awarded a money judgment consisting of damages and interest. Gail, 434
N.W.2d at 862. Following affirmance in an appeal in which Western did not
challenge the interest award, see Gail v. Clark, 410 N.W.2d 662 (Iowa 1987),
Western sought and secured a modification of the interest award by the trial
court. Gail, 434 N.W.2d at 863. In reversing the trial court‟s modification of the
interest award, our supreme court stated, in part:
The doctrine of res judicata provides that a final judgment on the
merits of an action precludes the parties from litigating issues which
were or could have been raised in that action. The res judicata
consequences of a final, unappealed judgment on the merits are
not altered by the fact the judgment may have been wrong or
rested on a legal principle subsequently overruled in another case.
A judgment merely voidable because based upon an
erroneous view of the law is not open to collateral attack, but can
13
be corrected only by a direct review. A judgment may be attacked
collaterally only if it was entered without jurisdiction.
. . . Because Western did not challenge the interest award
on appeal the order must be allowed to stand.
Id. at 863 (citations omitted) (emphasis added).
In Gail, in Western‟s appeal it did not challenge the interest award portion
of the trial court‟s judgment and that portion of the judgment became final and not
subject to collateral attack. Similarly, in this case in Christenson‟s appeal he did
not challenge the portion of the district court‟s ruling holding he had lost the
nonconforming use of his land for horses, and it became final and not subject to
subsequent collateral attack. We conclude the district court erred in vacating that
portion of its January 14, 2004 ruling.
IV.
CONCLUSION.
We conclude Christenson did not sustain his burden to establish the
elements of issue preclusion with respect to the issue of whether his
nonconforming use of the land was eliminated under city ordinance 17.04.160(F).
That issue was not actually litigated in the board of adjustment proceedings
because the City conceded the nonconforming status of the land in arguing that
Christenson‟s proposed structure would be an illegal expansion of that
nonconforming use. We deny Christenson‟s further attempt to preclude the City
from litigating that issue in the declaratory judgment proceedings under the
doctrine of judicial estoppel.
We further conclude the district court erred in vacating the portion of its
January 14, 2004 ruling holding Christenson had lost the nonconforming use of
his land for horses.
14
The judgment of the district court on remand is therefore reversed, and
this case is remanded for any further proceedings, consistent with the prior
opinion of our supreme court and consistent with this opinion, as may be
necessary.
Costs on appeal are taxed to Christenson.
REVERSED AND REMANDED.
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