Castle Gate Homeowners' Association v. K & L Properties, LLC

IN THE COURT OF APPEALS OF IOWA

No. 22-0286
Filed February 8, 2023

CASTLES GATE HOMEOWNERS' ASSOCIATION,
Plaintiff-Appellant,

vs.

K & L PROPERTIES, LLC,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary,

Judge.

A petitioner appeals an adverse grant of summary judgment on its petition

for judicial review of eminent domain authority. AFFIRMED.

Sabrina Sayler of Crary, Huff, Ringgenberg, Hartnett & Storm, P.C., Dakota

Dunes, South Dakota, for appellant.

Richard H. Moeller and Daniel M. Strawhun of Moore, Corbett, Heffernan,

Moeller & Meis, L.L.P., Sioux City, for appellee.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
2

BADDING, Judge.

In the “little utilized” arena of private condemnations, Green v. Wilderness

Ridge, L.L.C., 777 N.W.2d 699, 700 (Iowa 2010), we are asked to decide whether

the district court erred in determining that a petition for judicial review of eminent

domain authority filed by the condemnee, Castles Gate Homeowners’ Association

(Association), was untimely following sufficient notice by the condemnor, K & L

Properties, LLC (K & L). Finding no error in the court’s summary judgment ruling,

we affirm.

I. Background Facts and Proceedings

To provide context for the issue raised on appeal, we start with some

background on this unique proceeding. “Although eminent domain, the power to

seize private property, is typically exercised by governmental bodies, the

legislature has conferred a narrow power of eminent domain upon private citizens

in Iowa.” Id. at 702; accord Iowa Code § 6A.4(2) (2021).1 That power exists when

those who own or lease land “have no public or private way to the lands, for the

purpose of providing a public way which will connect with an existing public road.”

Iowa Code § 6A.4(2); accord Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa 2000)

(“[A]n owner of ‘land locked’ property is permitted to institute condemnation

proceedings to secure a public way over other land to permanently solve the

inability to access the property.”).

1 Iowa Code chapter 6A provides the grant of, and limits on, the authority to
exercise the eminent domain power, “while chapter 6B governs the procedure for
the exercise of that authority.” 17 David M. Erickson & Christopher Talcott, Iowa
Practice Series: Real Estate Law & Practice § 14:2 (Nov. 2022 update) [hereinafter
Erickson & Talcott].
3

Whether brought by a governmental body or private citizen, an eminent

domain action starts with a “written application filed with the chief judge of the

judicial district of the county in which the land sought to be condemned is located.”

Iowa Code § 6B.3(1). Operating under this statute, K & L filed an application for

condemnation and appointment of a compensation commission to assess

damages on June 25, 2021. The application alleged K & L’s property was

landlocked and sought to condemn neighboring property owned by the Association

to provide “a public way, for non-agricultural purposes, which will connect [K & L’s]

real estate to an existing public road.” On June 28, the chief judge signed the

application, as well as documents appointing compensation commissioners and

alternates.

On August 6, K & L served the registered agent for the Association with a

copy of the application provided to the chief judge, a notice of assessment, and a

plat map. The same documents were served on the wife of the Association’s

president on August 9. Thirty-one days later, on September 9, the Association

filed a “petition for judicial review of eminent domain authority,” seeking dismissal

of the condemnation application because it sought “condemnation rights that are

not authorized by Iowa Code [section] 6A.4(2).” The Association maintained:

(1) condemnation was impermissibly sought for economic development rather

than “public use” and (2) the property to be condemned was not the “nearest

feasible route to an existing public road.” See id. § 6A.4(2)(b). The Association

did not raise any deficiencies in the procedure used by K & L to start the

proceedings.
4

In its answer, K & L asserted the Association’s petition was untimely

because it “was served with a Notice of Assessment on August 6 and 9, 2021,

pursuant to Iowa Code section 6B.8.” See id. § 6A.24(1) (noting actions

“challenging the exercise of eminent domain authority or condemnation

proceedings” “shall be commenced within thirty days after service of notice of

assessment pursuant to section 6B.8 by the filing of a petition in district court”). In

time, K & L moved for summary judgment on that basis.

In its resistance, the Association stated that while its president was served

with a “notice” and an application for condemnation on August 9, it was never

served with any of the documents bearing the signature of the court—the

condemnation application or the documents appointing the commissioners and

alternates. The Association also asserted K & L did not certify that the application

was approved by the court or record the original approved application until October

19. See id. § 6B.3(3).

Following a hearing, the district court ruled that K & L’s service of the notice

and application on the Association “substantially complied with the relevant

eminent domain notice statute,” and the Association’s petition for judicial review

was therefore untimely. The court accordingly granted K & L’s motion for summary

judgment. The Association appeals.

II. Standard of Review

Summary judgment rulings are reviewed for correction of errors at law, as

are questions of statutory interpretation. Save Our Stadiums v. Des Moines Indep.

Cmty. Sch. Dist., 982 N.W.2d 139, 143 (Iowa 2022).
5

III. Analysis

On appeal, the Association claims “the district court erred by determining

that the notice was sufficient and that [K & L] substantially complied with the

eminent domain statute” because “K & L has failed to comply with multiple

requirements set forth in the applicable eminent domain statutes.”

Turning to those statutes, section 6B.3A allows a property owner described

in a condemnation application to bring an action for judicial review under Iowa

Code section 6A.24 “to challenge the exercise of eminent domain authority or the

condemnation proceedings.” Section 6A.24(1), as mentioned above, requires the

judicial review action to be “commenced within thirty days after service of notice of

assessment pursuant to section 6B.8 by the filing of a petition in district court.”

Section 6B.8 in turn provides:

The applicant . . . may, at any time after the appointment of
the commissioners, have the damages to the lands of any such
owner assessed by giving the other party . . . thirty days’ notice, in
writing. The notice shall specify the day and the hour when the
compensation commission will meet, view the premises, and assess
the damages. The notice shall be personally served upon all
necessary parties in the same manner provided by the Iowa rules of
civil procedure for the personal service of original notice.

Putting these statutes together, the triggering event for the thirty days to file

a petition for judicial review under section 6A.24(1) is personal service of a notice

of assessment on the landowner. It is undisputed the Association’s petition was

filed thirty-one days after it was served with the notice of assessment, which

contained all the information required by section 6A.8 and was in the form

prescribed by section 6B.9. Yet the Association contends the petition was timely
6

because K & L did not comply with sections 6B.4(2)(b), 6B.3(3)(a), 6B.2A(1)(f), or

6B.2D(1).

A. Section 6B.4(2)(b)

After the appointment of the compensation commission by the chief judge,

section 6B.4(2)(b) requires that the list of the commissioners and alternates be

mailed and published to, or personally served on, the owner of the property. This

must be accomplished “prior to or contemporaneously with service of the notice of

assessment as provided in section 6B.8.” Iowa Code § 6B.4(2)(b). K & L concedes

that it did not serve the Association with the list of commissioners and alternates

when it served the Association with the notice of assessment. Nor did it mail and

publish the list. So the question is whether that failure makes the notice that was

served fatally defective, thereby either saving the untimely petition or rendering the

condemnation proceedings a nullity, as the Association contends.

The Association is correct that “statutory provisions regulating the exercise

of eminent domain must be strictly complied with.” S.M.B. Invs. v. Iowa-Illinois Gas

& Elec. Co., 329 N.W.2d 635, 637 (Iowa 1983). But that “does not necessarily

mean literal compliance with the notice statute is required; substantial conformity

is sufficient.” Id.; accord Norgard v. Iowa Dep’t of Transp., 555 N.W.2d 226, 229

(Iowa 1996); Bourjaily v. Johnson Cnty., 167 N.W.2d 630, 633 (Iowa 1969).

Substantial conformity, or compliance, “exists when the action taken, although not

literally satisfying the statutory requirement, nevertheless fulfills the minimal

objectives of the statute.” Burnham v. City of W. Des Moines, 568 N.W.2d 808, 811

(Iowa 1997).
7

The statute that we are concerned with here is section 6B.8—the notice of

assessment that starts the thirty-day clock in section 6A.24(1) for the filing of the

petition for judicial review. Nothing in section 6B.8 requires the notice of

assessment to be predated or accompanied by a formal provision of the

commissioner list. Instead, the statute states the applicant “may, at any time after

the appointment of the commissioners,” have damages assessed by giving the

condemnee “thirty days’ notice, in writing.” Iowa Code § 6B.8. And section

6A.24(1) refers only to section 6B.8 as the trigger for the limitations period.

We also consider the purpose of section 6A.24(1), see Burnham, 568

N.W.2d at 811, which is to provide a statutory avenue for property owners to “bring

an action challenging the exercise of eminent domain authority or the

condemnation proceeding.”2 Iowa Code § 6A.24(1); accord id. § 6B.3A. The

notice of assessment, and the accompanying application, provided the Association

with all the information it needed to pursue that action. While the names of the

commissioners and alternates were not included, the notice did advise the

Association that a commission had been appointed “for the purpose of appraising

the damages which will be caused by said condemnation” and would meet on

October 7, 2021. The time for challenging the appointed commissioners had not

yet passed when the Association filed its petition for judicial review on September

2 This statutory right was added by amendments to the condemnation statutes in
2006. See 2006 Iowa Acts ch. 1001, §§ 5, 11. Before those amendments, owners
“wishing to challenge issues regarding the propriety of condemnation” had to resort
to “the traditional procedural vehicles” of injunction, mandamus, and certiorari.
See Erickson & Talcott, § 14:21 (noting appeals of a compensation commission’s
damage award under section 6B.18 “are limited to issues of the proper amount of
damages and the allocation of interest on deposited funds”); accord Owens, 610
N.W.2d at 865–66.
8

9. See id. § 6B.5(2) (“A challenge to the appointment of a commissioner shall be

filed, in writing, with the sheriff not less than seven days prior to the meeting of the

compensation commission . . . .”). And the Association does not claim it was

misled or otherwise prejudiced by K & L’s failure to serve the list of commissioners

with the notice of assessment. See Hicks v. Franklin Cnty. Auditor, 514 N.W.2d

431, 436 (Iowa 1994) (finding substantial compliance with statutory notice

provisions for drainage districts where “no plaintiff has asserted that he or she was

not informed of the project or was deprived of the opportunity to object”); City of

Oelwein v. Dvorsky, 380 N.W.2d 739, 742 (Iowa Ct. App. 1985) (noting that in

considering the validity of an original notice, it is appropriate to consider whether

a defendant was misled and suffered prejudiced).

For these reasons, we find K & L substantially complied with section 6B.8

as it relates to the timeliness of the Association’s petition for judicial review, even

though it failed to serve the Association with the list of commissioners and

alternates as required by section 6B.4(2)(b). See, e.g., Norgard, 555 N.W.2d

at 229 (concluding a notice of appraisement missing the date of the appraisement

and the date the notice was signed or sent substantially conformed with the

requirements of section 6B.18); S.M.B. Invs., 329 N.W.2d at 637–38 (finding a

notice of condemnation that did not designate the extent of the owner’s interest to

be condemned or describe the ingress and egress requested substantially

complied with the statute).
9

B. Section 6B.3(3)(a)

The Association next claims that K & L ignored section 6B.3(3)(a). That

section sets out three steps involved in initiating an eminent domain proceeding,

only the third of which the Association challenges.3 The third step provides: “The

applicant shall promptly certify that its application for condemnation has been

approved by the chief judge and shall file the original approved application with the

county recorder in the manner required under section 6B.37.” Iowa Code

§ 6B.3(3)(a).

As with the list of commissioners and alternates, K & L did not comply with

this requirement. But K & L again asserts it is the service of a proper notice of

assessment that triggers the commencement of the limitations period in section

6A.24(1), not compliance with other requirements like section 6B.3(3)(a). We

agree. The purpose of section 6B.3(3)(a) seems to be to alert uninterested third

parties that they cannot acquire an interest in the property while the condemnation

is pending. See id. § 6B.3(3)(c) (“When indexed, the proceeding is considered

pending so as to charge all persons not having an interest in the property with

notice of its pendency, and while pending no interest can be acquired by the third

parties in the property against the rights of the applicant.”). Noncompliance with

this provision did not mislead or prejudice the Association, see City of Oelwein,

3 The first step requires the filing of “a written application . . . with the chief judge
of the judicial district of the county in which the land sought to be condemned is
located.” Iowa Code § 6B.3(1). The Association agrees K & L complied with this
requirement on June 25, and the chief judge approved the application and
appointed commissioners and alternates on June 28.
The second step involves providing a copy of the application by (1) certified
mail and publication or (2) service. See id. § 6B.3(2). The Association agrees it
was served with a copy of the application on August 6 and 9.
10

380 N.W.2d at 742, or impact its right to be informed of the proceeding and object.

See Hicks, 514 N.W.2d at 436 (“The notice provisions are intended to safeguard

the . . . property owners’ rights to be informed and object.”). We accordingly find

K & L’s failure to comply with section 6B.3(3)(a) did not affect the adequacy of the

notice of assessment given to the Association under section 6B.8.

C. Sections 6B.2A(1)(f) and 6B.2D(1)

The Association finally claims that K & L failed to comply with

sections 6B.2A(1)(f), involving “[n]otice of proposed public improvements,” and

6B.2D(1), governing “[n]otice of intent to approve acquisition of property by

eminent domain.”4 We can easily dispose of section 6B.2A(1) because, by its

express terms, the provision only applies when “agricultural land” is the subject of

the proposed condemnation.” See 1 Marlin M. Volz, Jr., Iowa Practice Series:

Methods of Practice § 13:10 (Aug. 2022 update) (“If agricultural land is the subject

of the condemnation, the acquiring agency must provide written notice of a public

hearing to each owner and any contract purchaser of record and publish notice of

the public hearing.” (citing Iowa Code § 6B.2A(1))); accord Rex Realty Co. v. City

of Cedar Rapids, 322 F.3d 526, 527 n.2 (8th Cir. 2003). It is undisputed the land

involved in this proceeding is non-agricultural.

4 K & L argues the Association did not raise these issues in the district court and
therefore did not preserve error. See Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002). We nevertheless address them because they concern the court’s
jurisdiction over the condemnation proceeding. See Bourjaily, 167 N.W.2d at 635
(“It is a general rule that objections to the jurisdiction of the court over the subject-
matter of the action are never waived.”); see also In re S.P., 672 N.W.2d 842, 845
(Iowa 2003) (observing lack-of-notice arguments go “to the heart of the district
court’s jurisdiction”).
11

Section 6B.2D(1) is not as simple. The difficulty comes from the

shoehorning of the requirements for private condemnations into a statute mostly

concerned with condemnations by government entities. Section 6B.2D(1) requires

an “acquiring agency”5 to

send notice of a proposed resolution, motion, or other document
authorizing acquisition of property by eminent domain to each
property owner whose property is proposed to be acquired by
eminent domain . . . at least fourteen days prior to the date of the
meeting at which such proposed authorization will be considered for
adoption by the acquiring agency.

But, as K & L argues, it “did not authorize the acquisition of the property by [these

means] because it is a private entity—not a public entity—and [it] is not required

to do so pursuant to any law or regulation,” as most government entities likely

would be. So while section 6B.2D(1) would apply to “most condemnations

involving non-agricultural property,” see Erickson & Talcott, § 14:8, we find that it

does not apply when these steps are not prerequisites to eminent domain authority

and, as a result, are not performed. We therefore reject the Association’s

challenge on this ground as well.

IV. Conclusion

Having considered all the missteps identified by the Association, we

conclude K & L substantially complied with the notice of assessment required

under section 6B.8. Because the Association’s petition for judicial review was filed

more than thirty days after that notice was served, we agree with the district court

the petition was untimely under section 6A.24(1). As a result, the court correctly

5 Section 6B.1(2) defines “acquiring agency” to include “any person . . . conferred
the right by statute to condemn private property or to otherwise exercise the power
of eminent domain,” which would encompass private parties like K & L.
12

concluded that it had no authority to consider the petition. See Johnson Propane,

Heating & Cooling, Inc. v. Iowa Dep’t of Transp., 891 N.W.2d 220, 225 (Iowa 2017).

AFFIRMED.