Schultz v. Board of Adjustment of Pottawattamie County

• Decision Date: 11 January 1966
• Docket Number: No. 51954,51954
• Citation: 139 N.W.2d 448,258 Iowa 804
• Parties: August J. SCHULTZ et al., Appellants, v. BOARD OF ADJUSTMENT OF POTTAWATTAMIE COUNTY et al., Appellees, Frederick S. Cassman, Trustee, et al., Intervenors-Appellees.
• Court: Iowa Supreme Court

Page 448

139 N.W.2d 448

258 Iowa 804

August J. SCHULTZ et al., Appellants, v. BOARD OF ADJUSTMENT OF POTTAWATTAMIE COUNTY et al., Appellees Frederick S. Cassman, Trustee, et al., Intervenors-Appellees.

No. 51954.

Supreme Court of Iowa.

Jan. 11, 1966.

Rehearing Denied March 8, 1966.

Richard C. Turner, Council Bluffs, for appellants.

Frederick J. Kraschel, Council Bluffs, for appellees.

Hess, Peters & Sulhoff, Council Bluffs, for intervenors-appellees.

RAWLINGS, Justice.

Plaintiffs appeal from judgment annulling certiorari and, in effect, approving a conditional use permit issued by defendant board of adjustment pursuant to provisions of a county zoning ordinance.

In accordance with chapter 358A, Code, 1962, the Pottawattamie County Board of Supervisors enacted a zoning ordinance which was in effect at all times here concerned. By that ordinance a board of adjustment was established, hereafter sometimes referred to as the board. Section 358A.10, Code, 1962.

This ordinance gave to the board authority to grant or deny conditional use permits.

Intervenor Frederick S. Cassman, trustee, owned a 200 acre tract of land located about seven miles north of Council Bluffs, south of and abutting the privately owned Mormon Bridge Road, and immediately east of the Missouri River. This land was leased to intervenor Carl J. Meese.

Plaintiffs owned and lived on lands adjoining or near the Cassman property.

Intervenor Meese filed application for a sanitary landfill conditional use permit, notices were given, hearings held, investigations made, and the permit was granted subject to 17 conditions or restrictions.

By their original petition plaintiffs alleged the action and decision of the board was illegal and unwarranted. After a writ of certiorari had been ordered by the trial court, plaintiffs amended their petition challenging the constitutionality of portions of the ordinance and asserting an unconstitutional delegation of legislative power to the board.

I. We entertain this appeal only on errors assigned, with the findings of the trial court having the force and effect of a jury verdict. Deardorf v. Board of Adjustment, 254 Iowa 380, 383-384, 118 N.W.2d 78.

And errors not assigned will not be considered. Associates Discount Corp. v. Held, 255 Iowa 680, 683-684, 123 N.W.2d 869.

On appeal plaintiffs allege: (1) section 29 of the ordinance, and more particularly the conditional use power delegated therein allowing a garbage dump in a general manufacturing district is invalid; and (2) if section 29 is invalid, there can be no dump is a general manufacturing district because it is not a use permitted outright by section 28 of the ordinance.

For the most part plaintiffs argue the ordinance, and more particularly section 29, is invalid and ineffective because no legally good or sufficient guidelines are provided controlling the conditional use of property for a landfill dump site, or governing the board in denying or granting a sanitary landfill conditional use permit.

II. The term 'conditional use' employed in a zoning ordinance means provisional use for a purpose designated by the ordinance itself; a grant of right for any use specified by the ordinance subject to finding by an administrative officer or board that the use is proper, essential, advantageous or desirable to public good, convenience, health or welfare. It is neither the equivalent of nor should it be confused with 'variances'. Tustin Heights Ass'n v. Board of Supervisors, 170 Cal.App.2d 619, 339 P.2d 914, 919, and 101 C.J.S. Zoning §§ 272-274, pages 1037-1040.

III. The properties owned by plaintiffs and intervenor Cassman are in a district classified as general manufacturing (G-M) which is the least restrictive of any zoned districts.

Section 358A.15, Code, 1962, provides in substance, boards of adjustment shall have the power: (1) to hear and determine appeals; (2) to hear and determine special exceptions to the terms of any ordinance; and (3) to authorize upon appeal in specific cases, such variance from the terms of any ordinance as will not be contrary to the public interest.

However, plaintiffs claim the ordinance improperly delegates legislative powers to the board. We cannot agree.

In Chicago, R. I. & P. Rd. Co. v. Liddle, 253 Iowa 402, 406-407, 112 N.W.2d 852, this court held a board of adjustment acting pursuant to a zoning ordinance exercises administrative or quasi-judicial powers. We also there said the delegation of authority to a board of adjustment to act upon applications for conditional use of land must be accompanied by reasonably adequate guidelines or standards governing the action of such a board. See also Essick v. City of Los Angeles, 34 Cal.2d 614, 213 P.2d 492, 498; Wheeler v. Gregg, 90 Cal.App.2d 348, 203 P.2d 37, 46-47; 101 C.J.S. Zoning § 274, page 1039; 58 Am.Jur., Zoning, section 194, page 1046; and Annos. 58 A.L.R.2d 1086.

IV. We look then to the ordinance for answer to our question.

The preamble provides in part: 'An ordinance dividing the unincorporated area of Pottawattamie County, Iowa; to regulate and restrict therein the location, erection, construction, reconstruction, alteration and use of buildings, structures and land, for industry, business, trade, residence and other uses;'

And, section 2 is as follows: 'Purpose. The purpose of this ordinance is to promote the public health, safety, comfort and general welfare; to conserve the values of property throughout the county; to facilitate the provision of water, sewage, schools, and other public requirements; and to lessen and avoid congestion in the public streets and highways.'

Then the pertinent portions of section 29 provide: 'Conditional Uses Permitted. The following conditional uses are permitted in a G-M district when authorized in accordance with the requirements of Sections 35 through 41:'

'(9) Garbage, offal or dead animal reduction or dumping.'

Nineteen other specific conditional uses are enumerated.

The remaining relevant provisions of the ordinance are as follows:

'SECTION 35. Authorization to Grant or Deny Conditional Uses. Uses designated in this ordinance as conditional uses permitted shall be permitted or enlarged or altered upon approval by the Board of Adjustment in accordance with the standards and procedures specified in Sections 35 through 41. Change in use, expansion or contraction or lot area, or alteration of structures or uses classified as conditional uses existing prior to the effective date of this ordinance shall conform to all regulations pertaining to conditional uses.'

'SECTION 36. Application for a Conditional Use. A request for a conditional use or modification of an existing conditional use may be initiated by a property owner or his authorized agent by filing an application with the administrative officer upon forms prescribed for the purpose. The application shall be accompanied by a site plan, drawn to scale, showing the dimensions and arrangement of the propose development, and a fee of $5.00. The administrator may require other drawings or material essential to an understanding of the proposed use and its relationship to surrounding properties.'

'SECTION 38. Recommendation of the Board of Adjustment. The Board of Adjustment in reviewing an application for a conditional use may consider the most appropriate use of the land; the conservation and stabilization of the value of property; adequate open space for light and air; concentration of population; congestion of public streets; the promotion of the public safety, morale, health, convenience, and comfort; and the general welfare of the persons residing or working in the neighborhood of such use. In addition to the general requirements of this ordinance, in granting a conditional use, the Board of Adjustment may recommend conditions be attached which it finds are necessary to carry out the purpose of this ordinance. These conditions may increase the required lot or yard, control the location and number of vehicular access points to the property, limit the number of signs, limit coverage or height of buildings because of obstruction to view and reduction of light and air to adjacent property, and require screening and landscaping where necessary to reduce noise and glare and maintain the property in a character in keeping with the surrounding area. The Board of Adjustment shall make its findings and recommendations in writing within 40 days after the hearing on the proposed conditional use or modification on existing conditional use.'

Section 41, to the extent here applicable provides: 'Standards Governing Conditional Uses. A conditional use shall ordinarily comply with the standards of the district concerned for principal uses permitted outright except as specifically modified by the Board of Adjustment in granting the conditional permit * * *'

Our task is to determine whether sections 2, 38, and 41 of the ordinance contain reasonably adequate standards for guidance of the board in acting upon a conditional use application.

Plaintiffs claim section 38 is by its terms simply permissive and does not mandatorily impose adequate standards or guidelines. There is no substance to this contention.

Of course, the word 'may' normally implies permissive rather than mandatory action or conduct. John Deere Waterloo Tractor Works of Deere & Co. v. Derifield 252 Iowa...