Alfred P. Kopzyck v. City of Dubuque Building Code Board of Appeals

• Court: Court of Appeals of Iowa
• Decided: December 16, 2020
• Docket: 20-0340
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0340 Filed December 16, 2020

ALFRED P. KOPZYCK, Plaintiff-Appellant,

vs.

CITY OF DUBUQUE BUILDING CODE BOARD OF APPEALS, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi

Wittig, Judge.

Property owner appeals a remand order issued in response to his petition

for writ of certiorari. AFFIRMED.

Stuart G. Hoover, East Dubuque, Illinois, for appellant.

Maureen Quann, Assistant City Attorney, Dubuque, for appellee.

Considered by Doyle, P.J., and Mullins and Greer, JJ. 2

MULLINS, Judge.

Alfred Kopzyck filed a petition for writ of certiorari and request for stay of

action taken by the City of Dubuque Building Code Board of Appeals (Board), after

the Board denied his challenge to a notice of violation of an ordinance requiring

him to license a vacant building. The district court did not issue a writ and require

a return, but set the petition for a hearing pursuant to Iowa Rule of Civil Procedure

1.1406. After the hearing, at which the parties submitted numerous exhibits, which

appear to constitute the record, as it existed, the court concluded the Board failed

to follow city rules and procedures and ordered a remand to the Board to proceed

pursuant to the rules and procedures found in the city code. Kopzyck filed a motion

to enlarge, modify, and correct, which was denied by the district court. Kopzyck

appeals, raising three issues: the court exceeded its jurisdiction by remanding the

matter to the Board and erred in not issuing a writ after the hearing and failing to

order a full return of the writ and provide sufficient advance notice.

At the root of Kopzyck’s petition for writ of certiorari and this appeal is his

claim he was denied due process before the Board. “Our review by certiorari is

not de novo, but where violations of basic constitutional safeguards are involved

we make our own evaluation of the facts from the totality of the circumstances.”

Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 922 (Iowa 1983). “It is

the rule that certiorari proceedings may be remanded where the inferior tribunal

has not proceeded according to law and the mistake may be corrected upon a

further hearing.” Watson v. Charlton, 50 N.W.2d 605, 611 (Iowa 1951). We need

not decide whether the district court should have issued a writ and required a return

because, as a practical matter, there appears no dispute that at the hearing the 3

court had before it the record that was made before the Board; thus, there was

substantial compliance. Kopzyck had adequate notice of the hearing and fully

participated, including submission of exhibits. Kopzyck was not prejudiced. In

fact, he convinced the district court the Board had not followed the city’s own rules

and procedures designed to provide due process. He did not get the relief he

wanted, but the court ordered a remedy.

We agree with the district court that the Board did not follow the

requirements of the city code and that the remand remedy was appropriate under

the circumstances of this case. We affirm by memorandum opinion pursuant to

Iowa Court Rule 21.26(1)(c), (d), and (e).

AFFIRMED.