Christ Vision, Inc. v. City of Keokuk

IN THE COURT OF APPEALS OF IOWA

No. 21-0908
Filed January 25, 2023

CHRIST VISION, INC.,
Plaintiff-Appellant,

vs.

CITY OF KEOKUK,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Lee (South) County, John M. Wright

and Michael J. Schilling, Judges.

The owner of a historic church challenges summary judgment rulings in

favor of the city, which demolished the dilapidated building. AFFIRMED.

John Q. Stoltze of Stoltze Law Group, P.L.C., Des Moines, for appellant.

Patrick J. O’Connell and Daniel M. Morgan of Lynch Dallas, P.C., Cedar

Rapids, for appellee.

Considered by Bower, C.J., Tabor, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
2

TABOR, Judge.

Christ Vision, Inc. (Christ Vision) owned a historic Unitarian Church in

Keokuk.1

1 One of the church’s founding members was U.S. Supreme Court Justice Samuel
Freeman Miller. Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman
Miller and the Supreme Court during the Civil War Era (Conflicting Worlds: New
Dimensions of the American Civil War), at 256 (2003). Justice Miller was one of
the “dominant personalities” of the post-Civil War Court. William H. Rehnquist,
Centennial Crisis: The Disputed Election of 1876, at 218 (2004). He wrote “twice
his share of opinions” on questions of constitutional law. Id. at 155; see, e.g.,
Slaughter-House Cases, 83 U.S. 36 (1872); Bradwell v. Illinois, 83 U.S. 130
(1872). Justice Miller’s family held a funeral service for him at the church following
his death. Ross, at 256.
3

But the church fell into disrepair.

After years of wrangling with Christ Vision over the church’s deteriorating

condition, the city persuaded the district court to declare the building to be a

nuisance. Christ Vision did not challenge that declaration. The court also ordered

the owner to work out a plan with the city for scheduling repairs. If the owner and

the city did not agree by March 2017, Keokuk could abate the nuisance or demolish

the church. Keokuk received no abatement plan from Christ Vision. So, after

giving notice to the owners, Keokuk demolished the building.

Christ Vision then sued, contending the city took the church without due

process or just compensation in violation of the Iowa Constitution. The owner

further claimed that the city trespassed onto the grounds and converted personal

property from inside the church. Keokuk successfully moved for summary

judgment. Christ Vision now appeals.

While we find a flaw in the district court’s analysis of inverse condemnation,

we agree with the city that the claim lacks merit. Because Christ Vision did not

generate a genuine issue of material fact on any of its claims, summary judgment

was proper.
4

I. Facts and Prior Proceedings

Built in 1876, the former Unitarian Church was “an inspirational, important,

and iconic Keokuk landmark.”2 But by 2005 the church was dilapidated. That July,

the city sent a letter to the church’s owner—Christ Vision, Inc.—asking the owner

to address deteriorating brick corners and falling moldings.

Christ Vision took no action for three years. So the city declared the building

“unsafe to occupy” and posted a notice on the church in 2008. Keokuk informed

Christ Vision that “[w]henever such notice is posted, no person shall remain in or

enter any building that has been so posted except to enter for repair or demolish

or remove such building under permit. . . . Any person violating this subsection

shall be guilty of a misdemeanor.” By 2011, the city sent letters to Christ Vision

suggesting the church be razed. The city informed the owner that Keokuk was

taking bids from demolition businesses.

Over the years, two Christ Vision representatives—Melanie Wells and

Christopher Dailey—spoke with city officials about plans to save the church. But

none of the plans had funding. In 2014, Dailey and others removed windows and

other items from the church despite the notice. Dailey told the city he removed the

windows because Christ Vision was planning to re-roof the church and did not want

them damaged. A district court ordered the church items be stored on city

property. The items were returned to the church that November.

2 The district associate court included this description in its nuisance ruling.
5

By December 2016, Christ Vision had made no repairs.3 The owner’s failure

to address the church’s structural issues for five years took a toll on the building.

The church now had gaping holes in the roof; fallen plaster and bricks; depressions

in the floor; water in the basement; and an assortment of detached boards,

moldings, and other debris scattered throughout the building. Keokuk filed a

municipal infraction against Christ Vision, asserting the church’s deteriorating

structure was a nuisance as defined by its municipal code.4 After a month-long

hearing involving “a substantial amount of witness testimony and documentary

evidence,” the district associate court agreed with the city. The court found that

the church’s hazardous condition made it a nuisance and ordered abatement.

To abate, the court gave three options. First, Christ Vision could repair the

church as specified by the city, including—at minimum—replacing the roof,

securing parts of the church that were falling apart, and fixing “any hazardous

conditions with the structure that make it unsafe to occupy” as specified by Keokuk.

Second, the owner could demolish the church. Or third, Christ Vision could deed

the property to Keokuk or another party approved by the city. The court directed

the owner to create a written abatement plan and timeline, subject to the city’s

3 In affidavits, both Wells and another Christ Vision representative, David Romain,
swore they were only allowed in the church with city supervision as of December
2016. Wells alleged Keokuk refused to provide such supervision. And Romain
asserted the city only allowed him on the property to mow the lawn.
4 The municipal code defined nuisances as “[w]hatever is injurious to the senses,

or an obstruction to the free use of property, so as essentially to interfere with the
comfortable enjoyment of life or property.” Keokuk Municipal Code § 5.24.020.
“dangerous buildings or structures” was one example of a nuisance listed by the
city code. Id. § 5.24.020(8).
6

approval. If the parties did not reach a written accord by March 2017 or another

agreed-upon time, Keokuk could “take any action needed to abate the conditions.”

When March rolled around, Christ Vision had not yet proposed an

abatement plan and had not asked the city for an extension. Even after the owner

missed its deadline, the city’s attorney wrote to Christ Vision’s attorney asking for

an abatement plan in April and again in June. The city never heard back. Keokuk

notified Christ Vision’s attorney of its intent to demolish the church. The city posted

the same notice on the church’s front door.

In October 2017, Keokuk’s city council approved a contract with the lowest-

bidding demolition company for the church’s destruction. Before this, the city was

presented with some abatement ideas by Romain and third parties either by email

or at city council meetings. But Romain and the others failed to prove they had

funding for these ideas and they were not approved by the city. Christ Vision still

had not sent a plan or schedule to the city for approval and had neither repaired

nor sold the building.

Finally realizing the need for urgent action, in November Christ Vision

sought to enjoin Keokuk from demolishing the church. The district court granted a

temporary injunction. The city challenged that ruling, contending improper notice

and service. The court dissolved the injunction less than a month later. Christ

Vision then applied for another temporary injunction. The court entered an order

in January 2018, scheduling a hearing for the end of the month. But Keokuk began

demolishing the church before the hearing.5

5In the demolition process, Keokuk also removed asbestos from the building for
safety purposes.
7

Christ Vision launched this lawsuit two years later, alleging Keokuk took its

property in violation of the Iowa Constitution. The owner further claimed that the

city trespassed onto its property and caused damage. And that Keokuk converted

Christ Vision’s personal property.

The city moved for summary judgment. Christ Vision resisted. In its

statement of proceedings, the court noted that Christ Vision admitted missing the

March 2017 deadline. But the court also recognized that Keokuk refused entry

into the church due to its unsafe condition and “did take personal property from the

building.” The court then granted the motion as to Christ Vision’s first two claims

but denied it for the conversion claim.

Keokuk moved to reconsider the conversion claim. And Christ Vision

moved to amend, enlarge, and reconsider the first two claims. The court denied

both motions. Following further discovery, the city again moved for summary

judgment on the conversion claim. This time, the district court granted the motion.

Christ Vision now appeals, resurrecting all three claims.

II. Scope and Standard of Review

We review grants of summary judgment for correction of legal error. Smith

v. Shagnasty’s Inc., 688 N.W.2d 67, 71 (Iowa 2004). Like the district court, we

view the record in the light most favorable to the nonmoving party, here Christ

Vision. See Bill Grunder’s Sons Const. Inc. v. Ganzer, 686 N.W.2d 193, 196

(Iowa 2004). If the district court correctly applied the law and there was no genuine

issue of material fact, we affirm. Id. We consider an issue to be material if its

determination affects the suit’s outcome. Id. And the dispute is genuine if a

reasonable jury could return a verdict for the nonmoving party. Id.
8

“[W]e are obliged to affirm an appeal where any proper basis appears in the

record for a trial court’s judgment, even though it is not one upon which the court

based its holding.” Grefe & Sidney v. Watters, 525 N.W.2d 821, 826 (Iowa 1994);

accord Gen. Motors Acceptance Corp. v. Keil, 176 N.W.2d 837, 842 (Iowa 1970)

(“Many a learned court is occasionally right for the wrong reason . . . .”).

III. Analysis

A. Constitutional Claims

Christ Vision first argues the district court erred in granting summary

judgment on its constitutional claims contesting Keokuk’s actions in abating the

church’s dangerous condition. The owner contends the city took its property

without just compensation, seeking damages under a claim of inverse

condemnation.6 Christ Vision also claims the city violated its due process rights.

1. Taking without just compensation

Under the Iowa Constitution, a government may not take private property

for public use without just compensation. See Iowa Const. Art. I, § 18.7 As noted,

Christ Vision’s takings claim is grounded on inverse condemnation. In issuing

summary judgment, the district court defined inverse condemnation as

“[c]ondemnation of property near a parcel so as to cause the parcel to lose much

6 Christ Vision invoked the concept of eminent domain in the district court. But on
appeal, the owner appears to recognize that theory does not apply because the
city did not pursue condemnation proceedings.
7 The federal constitution has a similar takings provision. See U.S. Const.
Amend. V. We find case law interpreting the federal provision persuasive in our
analysis because of this similarity. Kingsway Cathedral v. Iowa Dep’t of
Transp., 711 N.W.2d 6, 9 (Iowa 2006).
9

of its value.” Based on that definition, the court found Christ Vision’s theory of

inverse condemnation was inapplicable.

Trouble is, the district court’s definition of inverse condemnation—even if

accurate in certain situations—was too narrow. Inverse condemnation is “a

generic description applicable to all actions in which a property owner, in the

absence of a formal condemnation proceeding, seeks to recover from a

governmental entity for the appropriation of his property interest.” Kingsway

Cathedral, 711 N.W.2d at 9 (citation omitted). When deciding a claim of inverse

condemnation, Iowa courts employ a three-part test. First question: is there a

constitutionally protected private property interest at stake? Id. (citation omitted).

Second, has the government “taken” that interest for public use? Id. And third,

has the property owner been justly compensated for the taken interest? Id.

In the district court, citing City of Eagle Grove v. Cahalan, 904

N.W.2d 552, 561 (Iowa 2017), the city urged that Christ Vision did not retain a

protected property interest in the building because the owner did not act to abate

the nuisance. On appeal, the city changes tack. Switching from the first to the

second step in the inverse condemnation test, Keokuk argues the demolition was

not a taking because it fell within the city’s police powers. See Kelley v. Story Cnty.

Sheriff, 611 N.W.2d 475, 482 (Iowa 2000) (finding damage caused to Kelley’s

property by the officers executing an arrest warrant was a reasonable exercise of

police power and not a taking under the Iowa Constitution).

What is a taking? Courts recognize two kinds. First, a direct taking involves

the government outright seizing property or physically invading the property so that

the owner suffers a “practical ouster” of possession. Lingle v. Chevron U.S.A.,
10

Inc., 544 U.S. 528, 537 (2005). Second, a regulatory taking involves the

government overstepping the bounds of its police powers. Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1014 (1992). A per se regulatory taking can arise

from “a permanent physical invasion of property,” or a “regulation that denies the

owner all economically beneficial ownership.” City of Eagle Grove, 904 N.W.2d

at 562 (quoting Brakke v. Iowa Dep’t of Nat. Res., 897 N.W.2d 522, 545

(Iowa 2017)). A third form of regulatory taking can be found by balancing three

factors from Penn Central Transportation Company. v. New York City, 438

U.S. 104 (1978).8 Id. at 563.

In its briefing, Christ Vision does not specify which kind of taking allegedly

occurred. Instead, the owner presents a diffuse claim that the city’s nuisance

action amounted to an illegal taking. “Iowa has not yet considered whether

enforcing a nuisance law could constitute a regulatory taking.” ChemSol, LLC v.

City of Sibley, 386 F. Supp. 3d 1000, 1027 (N.D. Iowa 2019). But in City of Eagle

Grove, our supreme court held that the state’s exercise of its related police powers

over abandoned property did not constitute a taking.9 904 N.W.2d at 561. That

was true even though Eagle Grove’s action denied the owner of “all economically

beneficial or productive use” of the property. Id. at 563−64.

8 The Penn Central factors include (1) “[t]he economic impact of the regulation on
the claimant,” (2) “the extent to which the regulation has interfered with distinct
investment-backed expectations,” and (3) “the character of the governmental
action.” Penn Cent., 438 U.S. at 124.
9 The supreme court has taken some criticism for its analysis in Eagle Grove. See

N. William Hines, Is Iowa Code Section 657A.10A A Regulatory Step Too Far
Under Federal Takings Law?, 103 Iowa L. Rev. Online 161, 166 (2019)
(contending Eagle Grove misread the nuisance exceptions to the “total taking” rule
in Lucas, 505 U.S. at 1031).
11

Like the plaintiff in Eagle Grove, Christ Vision had a constitutionally

protected interest in rundown property. But under the Keokuk municipal ordinance,

Christ Vision did not have the right to maintain a public nuisance. See Easter Lake

Ests., Inc. v. Polk Cnty., 444 N.W.2d 72, 76 (Iowa 1989) (“[A] person has no vested

property right in a nuisance”); see also Hancock v. City Council of City of

Davenport, 392 N.W.2d 472, 475 (Iowa 1986) (recognizing city’s authority to

declare and abate nuisances under its police powers through enforcement of

reasonable city ordinances). As the record shows, Keokuk demolished the church

in compliance with an unchallenged court order finding the building was a nuisance

under the municipal code. In doing so, the city did not take anything. See

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 492 n.20 (1987)

(noting that since owners have no right to use their property to create a public

harm, the government takes nothing when it asserts power to enjoin a nuisance).

Thus, Christ Vision’s claim fails under steps one and two of our inverse

condemnation test.

Bottom line, Keokuk could enforce its nuisance law without compensating

Christ Vision for its losses stemming from that enforcement. Thus, the city is

entitled to summary judgment on the owner’s claim of inverse condemnation.

2. Due Process

Under the Iowa Constitution, “no person shall be deprived of life, liberty, or

property, without due process of law.” Iowa Const. art. I, § 9. “[D]ue process is

flexible and calls for such procedural protections as the particular situation
12

demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).10 Despite this

flexibility, “[p]rocedural due process requires at the very least, notice and

opportunity to be heard in a proceeding that is adequate to safeguard the right for

which the constitutional protection is invoked.” Endress v. Iowa Dep’t of Hum.

Servs., 944 N.W.2d 71, 77–78 (Iowa 2020) (citations and internal quotation marks

omitted). Christ Vison alleges Keokuk destroyed the church without giving the

owner a chance to be heard.

The district court found Keokuk’s authority to demolish the church came

from the December 2016 order. That order came after Christ Vision was afforded

notice and opportunity to present evidence at a hearing on whether to declare the

church a nuisance. Christ Vision concedes that procedural history. But it insists

the December 2016 order did not automatically authorize demolition of the church

once the March 2017 deadline was missed. Christ Vision claims the city needed

to follow the process in Iowa Code chapter 657A (2016).

Keokuk counters that abating the nuisance by demolishing the building

followed its municipal code and state law. See Iowa Code § 364.22 (2019). We

agree. The December 2016 order did not require the city to follow the steps in

chapter 657A for removing a public nuisance. And that chapter is not the sole

procedure for abating a dangerous building. See id. § 657A.11(2) (“This chapter

does not prevent a person from using other remedies or procedures to enforce

building or housing ordinances or to correct or remove public nuisances.”). Thus,

10 Christ Vision does not argue we should interpret its state due process claim
differently than we would a similar federal challenge. Thus, we may look to federal
case law in our analysis. Behm v. City of Cedar Rapids, 922 N.W.2d 524, 566
(Iowa 2019).
13

Keokuk could address the nuisance as it saw fit. See City of Iowa City v. Iowa

Dist. Ct., 456 N.W.2d 178, 180 (Iowa 1990).11

Christ Vision also claims Keokuk violated due process by demolishing the

church after the owner sought a temporary injunction. But for an injunction to be

in effect, it must be granted. See Iowa R. Civ. P. 1.1501 (“An injunction may be

granted as part of the judgment; or may be granted by order at any prior stage of

the proceedings, and is then known as a temporary injunction.”). The court had

not granted a new injunction before demolition. Thus, Keokuk did not violate Christ

Vision’s due process rights in moving forward.

B. Tort Claims

1. Trespass

Christ Vision next claims that the district court erred in concluding that

Keokuk did not trespass onto church property. Trespass means to wrongfully

interfere with another’s possessory rights in a property. Robert’s River Rides, Inc.

v. Steamboat Dev. Corp., 520 N.W.2d 294, 301 (Iowa 1994), abrogated on other

grounds by Barreca v. Nickolas, 683 N.W.2d 111, 119 (Iowa 2004). In this context,

a trespasser is someone who intentionally enters land in the possession of another

11 Christ Vision further claims summary judgment was improper because Keokuk
did not follow proper procedure in demolishing the church. But the owner did not
appeal the order authorizing demolition. So we do not entertain this collateral
attack. See Gail v. W. Convenience Stores, 434 N.W.2d 862, 863 (Iowa 1989).
In yet another iteration, Christ Vision claims the city violated its due process
rights by not giving its members “the ability to abate” the nuisance. Christ Vision
emphasizes a district court finding that Keokuk “did refuse entry in to the church
due to its unsafe condition.” But the city’s designation of the church as unsafe to
occupy included the chance to seek an administrative appeal and Christ Vision did
not avail itself of that opportunity. This appeal is too late to address the unsafe-to-
occupy designation.
14

without consent or a reason to rightfully be there. Id.; Iowa State Highway Comm’n

v. Hipp, 259 Iowa 1082, 1089 (1966) (citations omitted).

Christ Vision asserts Keokuk wrongfully entered the property to demolish

the church. The owner also objects to the city’s removal of church materials,

including asbestos. And it contends the city violated the “text and spirit” of the

December 2016 order by not working with Christ Vision to preserve the historic

church. The district court rejected the claim because the order authorized the city

to abate.

We agree with the district court. Christ Vision did not challenge the court’s

authority to permit the city to demolish the building once the owner missed the

abatement deadline. And “conduct otherwise a trespass is often justifiable by

reason of authority vested in the person who does the act.” State v. Van Rees, 246

N.W.2d 339, 343 (Iowa 1976) (quoting 75 Am. Jur. 2d Trespass § 43, at 38 (1974)).

Because Christ Vision missed the deadline, Keokuk could rightfully be on the

property to abate.

Nothing in the December 2016 order—whether text or spirit—imposed a

duty on the city to help preserve the church. To the contrary, the order placed

obligations on the owner. Because Christ Vision failed to meet those obligations,

Keokuk had no legal responsibility to assist the owner in obtaining funds or

conducting repairs to the church.12

12Christ Vision also asserts that the city trespassed by preventing the owners from
entering the church to make repairs. But as noted, Christ Vision did not appeal the
unsafe-to-occupy notice. So city officials were not wrongfully on the property when
Dailey was ordered to return items he’d taken from the church or when Keokuk
required individuals to be supervised by city officials while on the property. Van
Rees, 246 N.W.2d at 343.
15

2. Conversion

Finally, Christ Vison contests summary judgment on its conversion claim.

To commit conversion, an individual must exercise “wrongful control or dominion

over another’s property contrary to that person’s possessory right to the property.”

Lewis v. Jaeger, 818 N.W.2d 165, 188 (Iowa 2012). This control “must amount to

a serious interference with the other person’s right to control the property.” Id.

Christ Vision argues it had a possessory right to personal property within

the church. It claims that Keokuk interfered with that right by demolishing the

church with the property still inside. And further contends that the city did not allow

the owner to remove any personal property while demolition was pending. Christ

Vision points to the district court’s statement that the city “did take personal

property from the building.”13

The district court found no evidence that the city denied Christ Vision access

to the building to remove personal property once the March 2017 deadline passed

and demolition was pending. The record supports that finding. Conversion does

not occur “where the property was rightfully in the possession of the defendant.”

Williamson v. Williamson, No. 11–0830, 2013 WL 1223840, at *10 (Iowa Ct. App.

Mar. 27, 2013) (citations omitted). Under the December 2016 order, Keokuk could

13 Christ Vision also claims Keokuk let “others” take property from the church or
gave it to them. And alludes in its reply brief to those others being the demolition
contractors. Christ Vision fails to develop facts to support this claim. Wells did
state in her deposition that she had a picture of the demolition contractors hauling
church doors and decorative stones away. But this photo is not in the record. And
even assuming such items were stolen, they would have been fixtures of the
building, still real property subject to the abatement order. The district court
reached that same conclusion when Christ Vision brought a replevin action against
the demolition contractors.
16

demolish the church, including any personal property still inside, once Christ Vision

failed to meet its deadline.

True, Dailey was once ordered to return items he removed from the church.

But that was two years before the abatement order. And three years before

Keokuk began demolition. Christ Vision points to no evidence that it requested

access to the church to remove personal property once it knew demolition was

imminent or that Keokuk denied access. See McCray v. Carstensen, 492

N.W.2d 444, 445 (Iowa Ct. App. 1992) (finding the defendant’s action of locking

plaintiffs out of premises was not “sufficient interference with plaintiffs’ personal

property” as the “defendants were willing to allow plaintiffs to access the premises

for the purpose of removing their property”). Christ Vision did not generate a

genuine issue of material fact on its conversion claim.

IV. Conclusion

Having considered all of the claims raised on appeal, whether specifically

mentioned in this opinion or not, we affirm the district court’s rulings on summary

judgment.

AFFIRMED.