E-FILED 2016 OCT 05 1:28 PM JOHNSON - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY

NEIGHBORS OF MANVILLE HEIGHTS ASSN,

ANNE LAHEY, CRAIG SYROP & ANNE
SADLER, BILL & KAREN ACKERMAN,
BRADLEY & CATHERINE ERICKSON,
Plaintiffs,
v.
BOARD OF ADJUSTMENT OF THE CITY OF
IOWA CITY, IOWA,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

NO. CVCV078407
ORDER FOR WRIT OF
CERTIORARI
Without Bond

On the 5th day of October 2016, the Petition for Writ of Certiorari, having been presented
to the Court, and the Court having reviewed said Petition and being fully advised in the premises,
finds that the Writ of Certiorari should be issued, Without Bond.
IT IS THEREFORE ORDERED that the Clerk of Johnson County District Court shall
issue a Writ of Certiorari under its seal commanding Defendant to certify to the Iowa District
Court for Johnson County, at the Johnson County Courthouse in Iowa City, Iowa, within twenty
(20) days after service of the Writ of Certiorari upon it, a transcript of the entirety of Defendants
records and proceedings as are complained of in the Petition for Writ of Certiorari, together with
the facts of the case, describing or referring to them or any of them with reasonable certainty.

E-FILED 2016 OCT 05 1:28 PM JOHNSON - CLERK OF DISTRICT COURT

State of Iowa Courts

Type:

ORDER TO ISSUE WRIT

Case Number
CVCV078407

Case Title
MANVILLE HEIGHTS ET AL V. B.O.A. AND CITY OF I.C.
So Ordered

Electronically signed on 2016-10-05 13:28:03

page 2 of 2

E-FILED 2016 OCT 05 4:00 PM JOHNSON - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY

Case No. 06521 CVCV078407

KAREN SUE ACKERMAN
NEIGHBORS OF MANVILLE HEIGHTS ASSOCIATION
KATHERINE ERICKSON
CRAIG HENRY SYROP
ANNE SADLER
WILLIAM GEORGE ACKERMAN
BRADLEY ALLAN ERICKSON
ANNE M LAHEY

WRIT
OF CERTIORARI
Without Bond
Clerks Docket Events are: WOAT, WOCT,
WOHC, WIDA, WOIJ and WRIT

Plaintiff-Petitioner(s)
vs.
BOARD OF ADJUSTMENT FOR THE CITY OF IOWA CITY
Defendant/Respondent(s)
To the Sheriff of JOHNSON County,
You are hereby commanded to certify to the Iowa District Court for Johnson County, at the Johnson County Courthouse
in Iowa City, Iowa, within twenty (20) days after service of the Writ of Certiorari upon it, a transcript of the entirety of
Defendants records and proceedings as are complained of in the Petition for Writ of Certiorari, together with the facts of
the case, describing or referring to them or any of them with reasonable certainty.
Other (specify) See attached Court order and Petition

DESCRIPTION:
Date: 10/05/2016
Requested by Attorney

James Larew
/s/ Alison Meade, Designee
CLERK OF DISTRICT COURT
JOHNSON COUNTY IOWA

E-FILED 2016 OCT 05 4:00 PM JOHNSON - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY

KAREN SUE ACKERMAN

NEIGHBORS OF MANVILLE HEIGHTS ASSOCIATION
KATHERINE ERICKSON
CRAIG HENRY SYROP
ANNE SADLER
WILLIAM GEORGE ACKERMAN
BRADLEY ALLAN ERICKSON
ANNE M LAHEY

Case No. 06521 CVCV078407

Proof of Service
Writ
Date Writ Issued: 10/05/2016
Docket Event Code: RSOT

Plaintiff-Petitioner(s)
vs.
BOARD OF ADJUSTMENT FOR THE CITY OF IOWA CITY
Defendant/Respondent(s)

PROOF OF SERVICE

Date of Service ________________________

Fees _______________________________

Date Served __________________________

Mileage _____________________________

Who Served __________________________

Total _______________________________

Address Served _______________________

________________________ County Sheriff

____________________________________
____________________________________

By __________________________ , Deputy

E-FILED 2016 OCT 05 11:16 AM JOHNSON - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY

NEIGHBORS OF MANVILLE HEIGHTS ASSN,

ANNE LAHEY, CRAIG SYROP & ANNE
SADLER, BILL & KAREN ACKERMAN,
BRADLEY & CATHERINE ERICKSON,
Plaintiffs,
v.
BOARD OF ADJUSTMENT OF THE CITY OF
IOWA CITY, IOWA,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

NO. ______________
PETITION FOR WRIT OF
CERTIORARI

COME NOW Plaintiffs NEIGHBORS OF MANVILLE HEIGHTS ASSOCIATION, an

Iowa Non-Profit Corporation, ANNE LAHEY, CRAIG SYROP & ANNE SADLER, BILL &
KAREN ACKERMAN, and BRADLEY & CATHERINE ERICKSON, by and through the
undersigned counsel, James C. Larew, and in support of their Petition for Writ of Certiorari,
hereby state the following:
THE PARTIES
1. Plaintiff NEIGHBORS OF MANVILLE HEIGHTS ASSOCIATION, is an Iowa NonProfit Corporation, organized under the Code of Iowa. Its Registered Agent is James C.
Larew, Larew Law Office, 504 E. Bloomington Street, Iowa City, Iowa 52245.
2. Plaintiff Anne Lahey owns real property at 111 Lusk Avenue, Iowa City, Iowa (Lahey
Property), a single family dwelling located on a parcel that lies directly to the north of
and abuts property owned by F. Reed Carlson and Sandra Carlson, husband and wife
(Carlsons), located at 101 Lusk Avenue (Carlson Property).
3. Plaintiffs Craig Syrop and Anne Sadler have ownership interests in real property located
at 117 Lusk Avenue, Iowa City Iowa (Syrop-Sadler Property), a single family dwelling
located on a parcel that lies directly to the north of and abuts and shares a property line
and a driveway with the Lahey Property.
4. Plaintiffs Bill and Karen Ackmerman own real property located at 631 Bayard Street,
Iowa City Iowa (Ackerman Property), a single family dwelling located on a parcel that
lies directly north of and abuts the Carlson Property.

E-FILED 2016 OCT 05 11:16 AM JOHNSON - CLERK OF DISTRICT COURT

5. Plaintiffs Bradley and Catherine Erickson own real property located at 11 Rowland
Court, Iowa City, Iowa (Erickson Property), a single family dwelling located on a
parcel that lies within several hundred feet of the Carlson Property.
6. Defendant Board of Adjustment of the City of Iowa City, Johnson County, Iowa is an
independent agency of the City of Iowa City, which is a municipal corporation located
within the State of Iowa. The Board of Adjustment is a five-member entity whose
creation is authorized under Iowa Code Chapter 414, and which is authorized under the
Iowa City Code of Ordinances at 14-7A-2, to consider appeals made by Building
Officials employed by the City wherein it is alleged that there has been error in any order,
requirement, decision or determination.
FACTUAL SUMMARY
7. Plaintiffs are aggrieved by a decision, announced on September 30, 2016, but not yet
published, by four members of the Board of Adjustment, who, in a 2-2 tied vote, affirmed
challenged decisions made by the City, through its Building Official, Doug Boothroy,
Director, Neighborhood and Development Services, an administrative department of the
City.
8. Plaintiffs specifically challenged the Board of Adjustments determinations: that the City
had properly classified a planned large entertainment venue, designed as a replica of
Kinnick Stadium, as a single family residence; and that the City had properly approved a
Site Plan, submitted in conjunction with its approval of a Building Permit for that
structure.
9. The entertainment venue has been proposed for construction by F. Reed Carlson and
Sandra Carlson, husband and wife, the two owners of real property located at 101 Lusk
Avenue, a paved, dead-end 20-foot wide street, 155 feet, 5-inches long, located in what is
sometimes referred to as the Manville Heights neighborhood of Iowa City.
10. At issue, substantively, is whether the 7,500 square foot structure, designed as a replica of
Kinnick Stadium, is permitted in Manville Heights, which neighborhood is zoned as RS5, Single Family Low Density Residential, and whether, in obtaining a Site Plan approval
and an issued Building Permit, the Carlsons complied with all applicable City Code
provisions including the International Residential Code (requiring the building to have a
sanitation system connected to the Citys sewer main), the International Fire Code
(requiring emergency vehicle turn-around infrastructure for streets exceeding 150 feet in
length and also requiring certain minimum fire flow water capacities from fire hydrants
when buildings such as the one proposed by the Carlsons are constructed), and the
Sensitive Lands and Features Ordinance.
2

E-FILED 2016 OCT 05 11:16 AM JOHNSON - CLERK OF DISTRICT COURT

11. At issue, procedurally, is whether Plaintiffs should have been allowed to amend their
initial Appeal to include issues not known to them at the date of appeal, but which issues
arose in the course of the Appeal proceedings, such as the applicability of the Sensitive
Lands and Features Issue.
12. The Iowa District Court has subject matter jurisdiction over this Petition for Writ of
Certiorari pursuant to Iowa Code section 414.15 and Iowa Rules of Civil Procedure 1.401
et seq.
13. Defendant Iowa City Board of Adjustment failed to act in accordance with governing
law, as defined by the Iowa City Code when it failed to approve Plaintiffs Appeal of
decisions made by Building Official Doug Boothroy. For example:
a. The Board of Adjustment acted unlawfully in its failure to sustain Plaintiffs
Appeal contesting Building Official Doug Boothroys failure to follow the use
classification procedures set forth in the City Code, resulting in the
misclassification of the Carlsons proposed Kinnick Replica structure as a single
family dwelling whereas, in fact, the Carlsons planned residential use of the
structure will be accessory to its principal use as an entertainment venuea
principal use that is not allowed in the RS-5 low density single family dwelling
zone of the Iowa City Zoning Ordinance.
b. The Board of Adjustment acted unlawfully in its failure to sustain Plaintiffs
Appeal contesting Building Official Doug Boothroys approval of Site Plan
submitted by the Carlsons to the City, a condition precedent to the Citys issuance
of a Building Permit to the Carlsons. The Site Plan, as approved by the City, and
unlawfully approved by the Board on Appeal, demonstrated that fundamental
Code requirements had not been complied with, including mandatory provisions
of the International Fire Code (requiring turnarounds in the street for emergency
vehicles and minimum fire flow volumes of water available at nearby hydrants),
of the International Residential Code (requiring independent private sewers
connecting structures to the Citys sewer main), and of the Sensitive Lands and
Features Ordinance (requiring restrictions of construction projects on protected
slopes and wooded areas and buffer zones attached thereto).
c. The Board of Adjustment acted unlawfully in its failure to sustain Plaintiffs
Appeal contesting Building Official Doug Boothroys issuance of a Building
Permit to the Carlsons, due to the Carlsons failure to demonstrate compliance
with the minimum mandatory requires of certain zone provisions, as above
described in Paragraph 13(b).

E-FILED 2016 OCT 05 11:16 AM JOHNSON - CLERK OF DISTRICT COURT

d. Such actions, Plaintiffs believe, were based on the Board of Adjustments

misapplications of law, or upon its refusal to consider and apply provisions of the
Iowa City Code of Ordinances that, if applied and considered, would and should
have resulted in the Boards approval of Plaintiffs Appeal of Building Official
Doug Boothroys actions.
14. Defendant Iowa City Board of Adjustments determination not to approve Plaintiffs
Appeal was not supported by substantial evidence. For example:
a. With respect to the misclassification issue the City, having decided, at the outset,
that the Carlsons Kinnick Replica structure should be classified as a single family
dwelling, refused and failed to undertake the City Codes required use
classification analysis to determine what the proposed structures principal, versus
accessory, use(s) would be. At the Hearing, the City maintained the same posture
and failed to produce any evidence with respect to the City Codes use
classification protocol. Plaintiffs produced multiple witnesses, including two
expert witnesses, who analyzed the principal versus accessory use issue as the
City Code requires. At the conclusion of the hearing, in effect, the City had
produced no evidence of the nature and type required by the City Code. The
Board of Adjustment, however, in a 2-2 vote, failed to sustain the Plaintiffs
Appeal on this issue. In supporting her decision in favor of the Citys position, at
least one Board Member described to the public facts and observations
completely outside of the record (e.g., where bathrooms in her own home are
located; where kitchen windows in her own home are located). Such a reliance on
facts outside of the record produce a vivid example illustrating how the Boards
2-2 decision with respect to the misclassification decision was not supported by
substantial evidence.
b. Similarly, with respect to the application of minimum requirements under the
International Fire Code (which provisions are incorporated by reference into the
City Code), no evidence was offered by the City to contest Plaintiffs evidence
that the paved surface of Lusk Avenue is 155 feet, five inches long, and that such
a street length mandates the inclusion of emergency vehicle turnarounds at the
end of the street, none of which were provided in the Carlsons Site Plan. Nor
was any evidence offered by the City to rebut Plaintiffs evidence that, as applied
to the prior owner of 101 Lusk Avenue, the City had imposed the emergency
vehicle turnaround requirement, triggered to the proposed construction of two
smaller homes, the combined size less than the building proposed by the Carlsons.
To Plaintiffs evidence, the City offered no evidence, only the argument that it
does not apply the mandatory turnaround provisions in cases involving single
family dwellings proposed for in-fill lots. The Board of Adjustments failure to
sustain Plaintiffs Appeal on this point was not supported by substantial evidence.
4

E-FILED 2016 OCT 05 11:16 AM JOHNSON - CLERK OF DISTRICT COURT

A similar situation resulted from Plaintiffs unrebutted evidence that the fire flow
water volumes required from proximate fire hydrants at sites characterized by
buildings of the size and composition of the proposed Kinnick Replica. The City
did not deny the Codes requirements but offered evidence that it exempts itself
from the requirements in dead-end streets if it believes that it can reach structures
with water supplied by pumper trucks. The Board of Adjustments failure to
sustain Plaintiffs Appeal on this point was not supported by substantial evidence.
c. Similarly, with respect to application of minimum requirements of the
International Residential Code, the Board of Adjustments failure to sustain
Plaintiffs Appeal was not supported by substantial evidence. The International
Residential Code requires all single family dwellings, as a matter of definition, to
have separate sanitary sewers that connect to the Citys sewer main. Plaintiffs
unrebutted evidence was that the Carlsons demolished an existing home (and
with it, demolishing any potential for grandfathering-in non-conforming uses with
the Carlsons plan to build a structure more than seven-times as large as the prior
structure) and that they had demonstrated no plans, either on their Site Plan on
their building plans, for a sanitation system. In response, the City said that the
sewer plans could be dealt with at the Occupancy Permit stage. The City,
repeatedly, and falsely, implied that the Carlsons had an easement to establish a
sanitary sewer, but the unrebutted evidence presented by Plaintiffs was that no
written easement agreement existed between the owners of 101 Lusck Avenue
and that abutting property owners had issued, served and recorded instruments
demonstrating the termination of any easements that the City believed might exits.
The Board of Adjustments failure to sustain Plaintiffs Appeal on this point was
not supported by substantial evidence.
d. Similarly, with respect to application of minimum requirements of the Citys
Sensitive Lands and Features Ordinance, the Board of Adjustments failure to
sustain Plaintiffs Appeal, as amended by them to conform with evidence
submitted by members of the public, was not supported by substantial evidence.
In the course of the Hearing, at its second session, Dr. Frank Weirich, an expert
research engineer in the Hydraulics Institute and a faculty member of the
Department of Civil and Environmental Engineering at the University of Iowa,
having studied the Citys file and having visited the Lusk Avenue area, offered
the opinions that the Sensitive Lands and Features Ordinance applied to 101 Lusk
Avenue due to steep slopes and wooded areas contiguous with the propertys
southerly boundary. Dr. Weirich explained how mandatory buffer zones, at least
fifty feet in width, were created by the sensitive areas and that no building could
be constructed within that buffer zone without first obtaining a variance. Dr.
Weirich explained how the Ordinance is written to impose the burden on the
property owner to identify the sensitive lands and features and to apply for
5

E-FILED 2016 OCT 05 11:16 AM JOHNSON - CLERK OF DISTRICT COURT

approval of building projects that are affected by the Ordinance. Dr. Weirich
explained that he could find no evidence that either the owners or the City had
complied with the Ordinances requirements. In response, the City offered no
evidence to the contrary of Dr. Weirichs evidence and opinions. Rather, the City
explained that it never applies the sensitive slopes or woodlands provisions from
one property over a property line to the next property. Dr. Weirich, in reply,
explained that such an application of the Ordinance eviscerates the purpose, intent
and language of the Ordinance because sensitive lands, as geographical forms, do
not follow property lines. Based on the evidence presented, the Board of
Adjustments failure to sustain Plaintiffs Appeal, as amended, was not supported
by substantial evidence.
15. Defendant Iowa City Board of Adjustment acted unreasonably, arbitrarily and
capriciously when it failed to sustain Plaintiffs Appeal. The purpose of the Zoning
Ordinance is to make wise decisions and efficient use of land and infrastructure and to
create a quality living environment for all area residents. Under Iowa Code 414.10, the
Iowa General Assembly directed that decisions of a Board of Adjustment should
serve the public interest, meet the intent of the title, and be consistent with the
comprehensive plan of the jurisdiction. Section 14-8C-3(B)(3) of the Iowa City Code
directs that the Board of Adjustment, may, in conformity with the provisions of this title
or ordinances adopted thereto reverse or amend a decision or determination of a
Building Official appealed from. As the Board of Adjustments chairperson, Larry
Baker, stated, when articulating the reasons why he was voting to sustain Plaintiffs
appeal, If the Citys [Mr. Boothroys] decision is upheld, not one single neighborhood in
this community is safe from this structure or even worse abominations. A decision
out of conformity with the law, and lacking substantial evidence in the record to support
it, is unreasonable, arbitrary and capricious. A City whose officials are aware of
mandatory provisions of the Code are not implementing the law, they are, in effect,
legislating it. And a Board of Adjustment, when confronted with unrebutted evidence
that a City official is legislating, and not implementing the law, it has both the power and
the duty, to stop it. In this instance, the Board of Adjustments 2-2 vote, resulting in an
affirmation of Building Official Boothroys appealed decisions and determinations, was
unreasonable, arbitrary and capricious.
16. This matter may require the taking of additional evidence. Plaintiffs have had access to
limited documents, in response to a request for public records in the custody of the City,
made by Plaintiffs pursuant to Iowa Code chapter 22. However they had not had access
directly to employees of the City who were primarily responsible for making the
contested decisions, nor have Plaintiffs had subpoena power necessary to obtain relevant
records held by witnesses working in a third party capacity as agents for the City and
whose records may, or may not, not be obtainable under Iowa Code chapter 22.
6

E-FILED 2016 OCT 05 11:16 AM JOHNSON - CLERK OF DISTRICT COURT

17. Because case law interpreting and governing Writs of Certiorari and case law governing
Petitions for Declaratory and Injunctive Relief do not always draw subjected matter lines
that are clear to Plaintiffs, Plaintiffs have therefore simultaneously filed two actions.
Plaintiffs agree and concede it possible or probable that one action, or the other, may
necessarily be stayed temporarily from time to time while proceedings on the related
action move forward. Plaintiffs further concede that, in the interest of justice and
efficiency, it is possible that these two causes, filed separately, may be subject to merger
or joinder with respect to one or more issues.

WHEREFORE, Plaintiffs respectfully pray that the Court:

A. Enter an Order directing the Clerk to issue a Writ of Certiorari commanding
Defendant Board of Adjustment of the City of Iowa City to certify to the Court within
twenty (20) days after service of the Writ of Certiorari upon it, a transcript of the
entirety of Defendants records and proceedings as are complained of in this Petition
for Writ of Certiorari, together with the facts of the case, describing and referring to
them or any of them with reasonable certainty, as is required under Iowa Rules of
Civil Procedure 1.404 and 1.406.
B. Set this matter for hearing as soon as reasonably possible and allow the taking of
additional evidence as may be required in the interest of justice and based on the
record obtained below.
C. Enter an Order directing and requiring Defendant to approve Plaintiffs Appeal and
thereby classify the Carlsons proposed structure as something other than a single
family dwelling, to dis-approve the Carlsons Site Plan, and to rescind the Carlsons
Building Permit for 101 Lusk Avenue, Iowa City.
D. Enter an Order determining and directing Defendant to determine that, before
approving a Site Plan and issuing a Building Permit for the Carlsons proposed
structure at 101 Lusk Avenue, Defendant must make findings that they have fully
complied with required provisions of the City Code, including the International
Residential Codes sanitation requirements, the International Fire Codes emergency
vehicle turn-around provisions and minimum water fire flow requirements and the
Citys Codes Sensitive Lands and Features Ordinance, as applied to the slopes and
wooded areas that abut, and encroach into the east-west lot line on the southerly
portion of the Carlsons property.
E. Award Plaintiffs the cost of this action.

E-FILED 2016 OCT 05 11:16 AM JOHNSON - CLERK OF DISTRICT COURT

F. Grant to Plaintiffs any and all other relief to which they are entitled, as the Court may
determine is just and equitable under the circumstances.

Respectfully submitted,
LAREW LAW OFFICE
/s/ James C. Larew
James C. Larew AT0004543
504 E. Bloomington Street
Iowa City, IA 52245
Telephone: (319) 541-4240
Facsimile: (319) 337-7082
Email: James.Larew@LarewLawOffice.com
ATTORNEYS FOR PLAINTIFFS