Opinion
No. 2-603 / 02-0034
Filed November 25, 2002
Appeal from the Iowa District Court for Woodbury County, JAMES D. SCOTT, Judge.
Stephen Adams appeals from the district court ruling annulling his petition for writ of certiorari. AFFIRMED.
Steven Kohl of Nymann Kohl, Sioux City, for appellant.
C. Maurice Rawe, City Attorney, and Connie Anstey, Assistant City Attorney, Sioux City, for appellee.
Considered by HECHT, P.J., and VAITHESWARAN and EISENHAUER, JJ.
Stephen Adams appeals from an order annulling his petition for writ of certiorari, which was based on the Sioux City City Council's resolution calling for the demolition of a building owned by Adams. We affirm.
I. Background facts and proceedings.
Stephen Adams has owned a building located at 717-721 29th Street in Sioux City since February of 1972. Since then, the structure has been "red tagged" at least three times pursuant to the Sioux City Municipal Code for lack of habitability. It has also been the subject of numerous abatement notices and complaints from neighbors regarding the condition of the property. After a September 1998 red tagging, Adams agreed to make the needed repairs within six months, but in March of 1999, he sought and received a six-month extension in which to make the repairs. An inspection by the city inspector after the extension had expired revealed Adams had failed to make the repairs.
Based on the condition of the structure and Adams's failure to remedy the deficiencies, the manager of the City's Inspection Services Division deemed it to be "dangerous or dilapidated" as defined by the Sioux City Municipal Code. On March 28, 2000, the City filed a notice of demolition and public hearing. Following an April 10 hearing, the City Council voted to adopt a resolution finding the building to be dangerous or dilapidated and ordering its demolition.
Adams responded by filing a petition for writ of certiorari in the district court, claiming a lack of substantial evidence to support the council's decision, a lack of due process and equal protection, and an illegal taking. The court subsequently filed an order annulling the petition for writ of certiorari. Adams appeals.
II. Scope of review.
Certiorari lies where an inferior tribunal, board, or officer, exercising judicial functions, has exceeded its jurisdiction or has acted illegally. Iowa R.Civ.P. 1.1401. Illegality exists when the findings of the tribunal do not have substantial evidentiary support or when the tribunal does not apply the proper law. Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 138 (Iowa 1988). Our review of the legal issues is for correction of errors at law. Iowa Coal Mining Co. v. Monroe County, 494 N.W.2d 664, 668 (Iowa 1993).
III. Substantial evidence.
Adams contends the City Council's decision finding the building to be dangerous or dilapidated pursuant to section 20.06.010 of the municipal code is not supported by substantial evidence in the record. Substantial evidence is evidence that a reasonable person would accept as adequate to reach the same finding. City of Hampton v. Iowa Civil Rights Comm'n, 554 N.W.2d 532, 536 (Iowa 1996). Evidence is not insubstantial merely because of the possibility of drawing two different conclusions from it; the ultimate question is not whether the evidence would support a different finding but whether it supports the finding actually made. Id. Evidence is not substantial if a reasonable mind would find the evidence inadequate to reach the same conclusion as the inferior tribunal. Sahu v. Board of Med. Exam'rs, 537 N.W.2d 674, 677 (Iowa 1995).
The Sioux City Municipal Code empowers the City to demolish a "dangerous or dilapidated structure," which, in short, it defines as any structure which (1) is dangerous to the public health because of its condition; (2) because of faulty construction, age, lack of proper repair, or any other cause constitutes a fire hazard; (3) by reason of faulty construction of other cause is liable to cause injury or damage by its collapsing or fall; and (4) because of its condition or lack of doors or windows is available to or frequented by persons who are not lawful occupants of such structure. Sioux City Municipal Code§ 20.06.010.
We conclude the district court properly held the City Council's determination was supported by substantial evidence. As noted, the structure in question had been placarded under authority of Sioux City Municipal Code section 21.44.010. This ordinance allows the City to placard any premises as "unfit" based on criteria that are very similar to those allowing for a finding of dangerousness or dilapidation under section 20.06.010. For example, the City may placard a structure if it is dilapidated, unsanitary, lacking sanitary facilities, dangerous to the health of its occupants, or offensive to the senses.
The record contains substantial evidence of the building's numerous deficiencies. A letter from building inspector Allan Brown noted concerns with inadequate fire protection between living units, roof rafters that were "scabbed" together with a 2X4 indicating a "deflection or failure in the lumber for the structural members," and improperly supported support beams in the basement which posed a safety hazard to the "structural integrity of the entire structure." A letter from electrical inspector David Shupe indicated the building had open junction boxes and other electrical deficiencies. Various interior deficiencies were also noted, including broken or missing windows, unfinished or buckled floors, damaged ceilings, missing handrails, incomplete plumbing fixtures, and non-functioning doors. In addition, the attic contained old carpet, trash, and other combustible materials that the City Housing Inspector deemed a fire hazard. Finally, a petition signed by a number of the structure's neighbors indicated support for its demolition based on "the history of neglect and resulting criminal element attracted to our neighborhood."
We conclude the foregoing constitutes substantial evidence tending to prove the structure is dangerous or dilapidated based on its dangerous state, its status as a fire hazard, and lack of proper repair or maintenance.
IV. Impartiality of the mayor.
Adams next asserts the Council's decision was arbitrary and capricious primarily because of an alleged lack of impartiality by Mayor Marty Dougherty. Adams alleges that following the decision to demolish the structure, Mayor Dougherty congratulated two neighbors of the building who had testified in favor of its demolition.
In Bluffs Development Co., Inc., v. Board of Adjustment of Pottawattamie County, Iowa, 499 N.W.2d 12 (Iowa 1993), our supreme court addressed a claim that a decision maker on a quasi-judicial body was biased. The court placed the burden on the party claiming a conflict to "show that the evidence of conflict of interest and prejudice is so strong that reasonable minds could reach but one conclusion." Id. at 14. Adams presents an affidavit by Richard Arnold, an individual who attended the hearing, who claims he witnessed the mayor "congratulating" certain neighbors of Adams's building for their "victory" after the hearing. The district court correctly concluded this evidence was insufficient to meet Adams's burden to establish a disqualifying bias on the part of the mayor. Accordingly, on this record, we affirm the district court's ruling on this issue.
V. Abuse of discretion.
Adams asserts the Council abused its discretion in ordering the demolition of his property. In part, he bases this contention on the claim the City has been inconsistent in its treatment of "red flagged" properties in the past. Mayor Dougherty did admit the City's past demolition decisions were inconsistent.
We reject the contention the City abused its discretion in this regard. The City's action was not unreasonable and did not lack rationality. See Allen v. State of Iowa, Dep't. of Pers., 528 N.W.2d 583, 587 (Iowa 1995). First, we note the City provided Adams notice and opportunity to be heard. He was allowed to present evidence and argument at a hearing. Moreover, the record reveals the city council was extremely patient with Mr. Adams in advance of the demolition decision. The City granted at least two six-month extensions for Adams to complete the necessary repairs to the structure. A March 1, 2001, final inspection revealed few, if any, of the building's deficiencies had been repaired. Further, as we concluded above, the City's decision as regards this particular structure was supported by substantial evidence.
VI. Statement of reasons for decision.
Finally, Adams asserts the City erred when it failed to state on the record the reasons for its determination the structure was dangerous or dilapidated. A review of both the district court's ruling on the petition for writ of certiorari and its summary judgment ruling shows the court did not address or resolve this contention Further, there is no indication in the record that Adams ever raised this contention with the City Council in the first instance. We also note Adams does not cite to the portion of the record where this contention was preserved for our review as our rules of appellate procedure require. Iowa R.App.P. 6.14(1)( f). Accordingly, on our review of the record, we conclude Adams has not preserved error on this issue and therefore decline to address it. See Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) (stating issues must be presented to and ruled upon by the district court before they can be raised and decided on appeal).