IN THE COURT OF APPEALS OF IOWA
No. 23-1673 Filed January 23, 2025
DAVID CHARLES STUART, Plaintiff-Appellant,
vs.
CITY OF DUBUQUE BUILDING CODE ADVISORY AND APPEAL BOARD, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter,
Judge.
A petitioner appeals the dismissal of his petition for writ of certiorari as
untimely. AFFIRMED.
Stuart G. Hoover, East Dubuque, Illinois, for appellant.
Jason D. Lehman, Assistant City Attorney, Dubuque, for appellee.
Considered by Badding, P.J., Langholz, J., and Bower, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2025). 2
LANGHOLZ, Judge.
To challenge a quasi-judicial decision of a city board, a petition for writ of
certiorari “must be filed within 30 days from the time the . . . board . . . exceeded
its jurisdiction or otherwise acted illegally.” Iowa R. Civ. P. 1.1402(3). David Stuart
seeks to challenge three decisions of the Dubuque Building Code Advisory and
Appeal Board. The Board made its decisions at a public meeting on January 5,
2023. The Board Chair signed the written decisions the same day. And the Board
sent them to Stuart by certified mail the next day, January 6. But Stuart filed his
petition for certiorari on February 7—thirty-two days after the mailing of the written
decisions and thirty-three days after the meeting and signing of the decisions. And
so, the district court dismissed Stuart’s petition as untimely.
On appeal, Stuart argues that the court erred in finding the petition untimely
because the thirty-day clock should not have started until the earliest day that he
could have received the decision by certified mail, which he reasons was
January 9. He also contends that the court should have granted him an extension
of time under rule 1.1402(3) because his untimely filing was “due to a failure of the
. . . board . . . to notify [him] of the challenged decision.” Id. But we agree with the
court that Stuart’s thirty-day clock started no later than January 6 when the Board
issued and mailed its written decision—the date of his receipt is irrelevant. And
because Stuart makes no argument that any action of the Board prevented him
from receiving notice within the thirty-day window for filing, the court did not abuse
its discretion in denying his request for an extension of time. We thus affirm the
dismissal of his petition for writ of certiorari. 3
I. Background Facts and Proceedings
Stuart owns three properties in Dubuque. In September 2022, after a
housing inspection, the city issued a notice of violation for each property, citing
Stuart for violations of city ordinances. Stuart appealed the three notices of
violation to the Dubuque Building Code Advisory and Appeal Board.
The Board considered Stuart’s appeals at a meeting on January 5, 2023.
Stuart argued each appeal to the Board and remained for the rest of the Board’s
consideration of the appeals, including its votes and the announcement of its
decisions. That same day, the Board Chair signed three written decisions on the
appeals, which were typed templates filled in and completed by hand to reflect the
Board’s findings of fact and determinations of the issues presented. Immediately
above the Board Chair’s signature, each decision said: “This decision is effective
as of the date stated below. Dated this 5th day of January 2023.”
The next day, on January 6, the Board mailed a copy of the decisions to
Stuart by certified mail, postage prepaid, return receipt requested. The U.S. Postal
Service attempted delivery to Stuart the next day but instead left a notice that
certified mail would be available for pickup or redelivery at the post office. Stuart
failed to claim the certified mail and two weeks later it was returned to the Board.
On February 7—even though the written decisions still had not been
delivered to him—Stuart filed a petition for writ of certiorari challenging the Board’s
decisions on the appeals. With representation by counsel, he made many claims
that the Board “acted in excess of its authority and illegally” through its appellate
procedures; that its “decisions were not supported by substantial evidence and
[were] unreasonable, arbitrary, or capricious”; and that it “omitted all findings and 4
conclusions which [the district court] needs to determine with certainty the factual
and legal basis” of the Board’s decisions. City personnel were eventually able to
hand-deliver the written decisions to Stuart just before the start of another Board
meeting in April.
On April 4—eighty-nine days after the Board’s January 5 decision—Stuart
moved for an extension of time to file a petition for writ of certiorari. See Iowa R.
Civ. P. 1.1402(3) (requiring such motions to be filed “within 90 days of the
challenged decision”). In the motion, Stuart acknowledged that the Board made a
“verbal” decision on January 5 and that he “filed [his] petition on 7 February, 2023
which was one day after the 30 days from the time [Stuart] alleges the Board
exceeded its jurisdiction or otherwise acted illegally.” But he argued that while city
“personnel produced and attempted delivery (by certified mail) of the decision,
such production and delivery would necessarily take more than one day.” And so
he asked the court to “extend the time allowed for filing the Petition for Writ of
Certiorari in this matter to 7 February, 2023 and find that the Petition in this action
was timely filed.”
The Board resisted Stuart’s motion for extension of time and moved to
dismiss the case because the untimely filing deprived the court of subject matter
jurisdiction. In his briefing to the district court, Stuart noted:
Plaintiff could argue that as the written decision constituted a substantial portion of the allegations that the Board exceeded proper jurisdiction or otherwise acted illegally, and that the Petition was filed within 30 days of the [date] when delivery of the written decision would be expected to be delivered, that the Petition was timely. Instead Plaintiff timely requested an extension of time. 5
After a hearing,1 the district court agreed with the Board, denying Stuart an
extension of time and dismissing this case. The court reasoned that Stuart “admits
that his petition was filed beyond the required 30-day time period” and that “he
cannot show that his delay was attributable to any failure by the Board.” 2
Stuart unsuccessfully moved for reconsideration, arguing that his petition
was timely because the thirty-day deadline should not start running until “the
delivery of the written decision” to him. And he now appeals. The Board waived
its right to file a brief. See Iowa R. App. P. 6.903(3).
II. Timeliness of the Petition for Certiorari
A petition for writ of certiorari “must be filed within 30 days from the time the
. . . board . . . exceeded its jurisdiction or otherwise acted illegally.” Iowa R. Civ.
P. 1.1402(3). “For purposes of [this rule], the time at which a [board] acted illegally
occurs when the underlying proceeding becomes final.” Sergeant Bluff-Luton Sch.
Dist. v. City Council of City of Sioux City,
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IN THE COURT OF APPEALS OF IOWA
No. 23-1673 Filed January 23, 2025
DAVID CHARLES STUART, Plaintiff-Appellant,
vs.
CITY OF DUBUQUE BUILDING CODE ADVISORY AND APPEAL BOARD, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter,
Judge.
A petitioner appeals the dismissal of his petition for writ of certiorari as
untimely. AFFIRMED.
Stuart G. Hoover, East Dubuque, Illinois, for appellant.
Jason D. Lehman, Assistant City Attorney, Dubuque, for appellee.
Considered by Badding, P.J., Langholz, J., and Bower, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2025). 2
LANGHOLZ, Judge.
To challenge a quasi-judicial decision of a city board, a petition for writ of
certiorari “must be filed within 30 days from the time the . . . board . . . exceeded
its jurisdiction or otherwise acted illegally.” Iowa R. Civ. P. 1.1402(3). David Stuart
seeks to challenge three decisions of the Dubuque Building Code Advisory and
Appeal Board. The Board made its decisions at a public meeting on January 5,
2023. The Board Chair signed the written decisions the same day. And the Board
sent them to Stuart by certified mail the next day, January 6. But Stuart filed his
petition for certiorari on February 7—thirty-two days after the mailing of the written
decisions and thirty-three days after the meeting and signing of the decisions. And
so, the district court dismissed Stuart’s petition as untimely.
On appeal, Stuart argues that the court erred in finding the petition untimely
because the thirty-day clock should not have started until the earliest day that he
could have received the decision by certified mail, which he reasons was
January 9. He also contends that the court should have granted him an extension
of time under rule 1.1402(3) because his untimely filing was “due to a failure of the
. . . board . . . to notify [him] of the challenged decision.” Id. But we agree with the
court that Stuart’s thirty-day clock started no later than January 6 when the Board
issued and mailed its written decision—the date of his receipt is irrelevant. And
because Stuart makes no argument that any action of the Board prevented him
from receiving notice within the thirty-day window for filing, the court did not abuse
its discretion in denying his request for an extension of time. We thus affirm the
dismissal of his petition for writ of certiorari. 3
I. Background Facts and Proceedings
Stuart owns three properties in Dubuque. In September 2022, after a
housing inspection, the city issued a notice of violation for each property, citing
Stuart for violations of city ordinances. Stuart appealed the three notices of
violation to the Dubuque Building Code Advisory and Appeal Board.
The Board considered Stuart’s appeals at a meeting on January 5, 2023.
Stuart argued each appeal to the Board and remained for the rest of the Board’s
consideration of the appeals, including its votes and the announcement of its
decisions. That same day, the Board Chair signed three written decisions on the
appeals, which were typed templates filled in and completed by hand to reflect the
Board’s findings of fact and determinations of the issues presented. Immediately
above the Board Chair’s signature, each decision said: “This decision is effective
as of the date stated below. Dated this 5th day of January 2023.”
The next day, on January 6, the Board mailed a copy of the decisions to
Stuart by certified mail, postage prepaid, return receipt requested. The U.S. Postal
Service attempted delivery to Stuart the next day but instead left a notice that
certified mail would be available for pickup or redelivery at the post office. Stuart
failed to claim the certified mail and two weeks later it was returned to the Board.
On February 7—even though the written decisions still had not been
delivered to him—Stuart filed a petition for writ of certiorari challenging the Board’s
decisions on the appeals. With representation by counsel, he made many claims
that the Board “acted in excess of its authority and illegally” through its appellate
procedures; that its “decisions were not supported by substantial evidence and
[were] unreasonable, arbitrary, or capricious”; and that it “omitted all findings and 4
conclusions which [the district court] needs to determine with certainty the factual
and legal basis” of the Board’s decisions. City personnel were eventually able to
hand-deliver the written decisions to Stuart just before the start of another Board
meeting in April.
On April 4—eighty-nine days after the Board’s January 5 decision—Stuart
moved for an extension of time to file a petition for writ of certiorari. See Iowa R.
Civ. P. 1.1402(3) (requiring such motions to be filed “within 90 days of the
challenged decision”). In the motion, Stuart acknowledged that the Board made a
“verbal” decision on January 5 and that he “filed [his] petition on 7 February, 2023
which was one day after the 30 days from the time [Stuart] alleges the Board
exceeded its jurisdiction or otherwise acted illegally.” But he argued that while city
“personnel produced and attempted delivery (by certified mail) of the decision,
such production and delivery would necessarily take more than one day.” And so
he asked the court to “extend the time allowed for filing the Petition for Writ of
Certiorari in this matter to 7 February, 2023 and find that the Petition in this action
was timely filed.”
The Board resisted Stuart’s motion for extension of time and moved to
dismiss the case because the untimely filing deprived the court of subject matter
jurisdiction. In his briefing to the district court, Stuart noted:
Plaintiff could argue that as the written decision constituted a substantial portion of the allegations that the Board exceeded proper jurisdiction or otherwise acted illegally, and that the Petition was filed within 30 days of the [date] when delivery of the written decision would be expected to be delivered, that the Petition was timely. Instead Plaintiff timely requested an extension of time. 5
After a hearing,1 the district court agreed with the Board, denying Stuart an
extension of time and dismissing this case. The court reasoned that Stuart “admits
that his petition was filed beyond the required 30-day time period” and that “he
cannot show that his delay was attributable to any failure by the Board.” 2
Stuart unsuccessfully moved for reconsideration, arguing that his petition
was timely because the thirty-day deadline should not start running until “the
delivery of the written decision” to him. And he now appeals. The Board waived
its right to file a brief. See Iowa R. App. P. 6.903(3).
II. Timeliness of the Petition for Certiorari
A petition for writ of certiorari “must be filed within 30 days from the time the
. . . board . . . exceeded its jurisdiction or otherwise acted illegally.” Iowa R. Civ.
P. 1.1402(3). “For purposes of [this rule], the time at which a [board] acted illegally
occurs when the underlying proceeding becomes final.” Sergeant Bluff-Luton Sch.
Dist. v. City Council of City of Sioux City, 605 N.W.2d 294, 297 (Iowa 2000). Failing
to file a timely petition “deprives the reviewing court of subject matter jurisdiction.”
Id. Because the thirty-day deadline is jurisdictional, this is so even when the
petition is only late “by a single day.” Concerned Citizens of S.E. Polk Sch. Dist.
v. City Dev. Bd., 872 N.W.2d 399, 402 (Iowa 2015). Our review is for correction of
errors at law. See Sergeant Bluff-Luton Sch. Dist., 605 N.W.2d at 297.
1 The district court’s dismissal order says the hearing was reported. But Stuart represented in his combined certificate that “it appears there are no transcripts in this matter,” and he did not request any transcript. 2 In addition to the ruling under review here, the court’s order denied the Board’s
motion to dismiss as untimely another petition for writ of certiorari that Stuart filed challenging different Board actions involving his properties. The Board did not seek interlocutory review and that case remains pending in the district court. 6
Stuart argues that his petition filed on February 7, 2023, was timely because
the thirty-day deadline should not start running until the earliest day that the written
decision could have been delivered to him. He reasons that he was challenging
the written decision in his petition and needed to have it to evaluate and prepare
the petition. And since he only received a notice that he could pick up the certified
mail on January 7—a Saturday—the decision could not have been delivered to
him until the following Monday, January 9. And if that were the proper date, he
would have only had to file his petition by February 8—the day after he did so.
But assuming this delivery-focused argument is preserved for our review
despite Stuart’s shifting positions in the district court, it is defeated by the text of
rule 1.1402(3) and precedent. The rule says that the thirty days starts running not
when the petitioner receives notice of all the details of a board’s act, but at “the
time the . . . board . . . exceeded its jurisdiction or otherwise acted illegally.” Iowa
R. Civ. P. 1.1402(3). And that means when “the underlying proceeding becomes
final.” Sergeant Bluff-Luton Sch. Dist., 605 N.W.2d at 297.
We need not decide the precise moment that the Board’s decisions became
final—at the time the Board voted,3 the effective date listed in the decisions, or the
date of mailing—because even taking the latest possible date, Stuart’s petition is
untimely. Indeed, the Board’s decisions were certainly final at the time the signed,
written decisions were turned over to the postal service for delivery by certified mail
3 In the district court, the Board argued that the decision became final when it was
announced during the Board meeting. See Askelson v. City of Lansing City Council, No. 21-0290, 2021 WL 5457832, at *2 (Iowa Ct. App. Nov. 23, 2021) (affirming dismissal of petition for writ of certiorari as untimely because it was not filed within thirty days of the city council’s vote at a public meeting even though notice was not sent to the petitioner a week later). 7
on January 6—at that point, the decisions were literally out of the Board’s hands.
And so, Stuart was required to file his petition no later than February 5. When he
did so on February 7, he was at least two days late. The district court thus did not
err in finding that Stuart’s petition for writ of certiorari was untimely.
III. Extension of Time Request
Despite the thirty-day deadline, the district court “may” allow an extension
of time “upon a showing that failure to file the petition within the time provided was
due to a failure of the . . . board . . . to notify the petitioner of the challenged
decision.” Iowa R. Civ. P. 1.1402(3). Given the court’s discretion whether to
extend the deadline even when the required showing is made, we review for abuse
of discretion. See Askelson v. City of Lansing City Council, No. 21-0290, 2021 WL
5457832, at *3 (Iowa Ct. App. Nov. 23, 2021).
Stuart argues that the district court should have extended the time for filing
by four days because that was “the earliest Stuart could have been notified in
writing.” He reasons that his lack of “immediate” notification should be a sufficient
failure of the board to notify him under the rule. But this repackaging of his delivery-
focused timeliness argument fares no better as a basis for reversing the district
court’s denial of his extension.
For starters, Stuart’s argument is mismatched with what rule 1.1402(3)
requires him to show. His delay must be “due to” the Board’s failure to notify. Iowa
R. Civ. P. 1402(3). Stuart does not attempt to explain how the lack of immediate
delivery of the written decisions caused him to be late in filing his petition. Indeed,
it is difficult to understand how it could have had any effect on the time of his filing
since the written decisions still had not been delivered to him when he filed his 8
petition—so he was able to file his petition even without delivery. What’s more,
the Board mailed the written decisions to him the day after its meeting and delivery
was attempted by the postal service the next day. So any further delay in receiving
the written decision was attributable to Stuart—not the Board.
The district court did not abuse its discretion in denying Stuart’s motion for
an extension. Because the thirty-day deadline for filing the petition for writ of
certiorari was not extended, and the petition was untimely filed, the district court
lacked subject matter jurisdiction and correctly dismissed this case.
AFFIRMED.