Anderson v. Jester

• Decision Date: 28 September 1928
• Docket Number: 39048
• Citation: 221 N.W. 354,206 Iowa 452
• Parties: R. ANDERSON et al., Appellants, v. L. A. JESTER et al., Appellees
• Court: Iowa Supreme Court

221 N.W. 354

206 Iowa 452

R. ANDERSON et al., Appellants, v. L. A. JESTER et al., Appellees

No. 39048

Supreme Court of Iowa, Des Moines

September 28, 1928

Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.

Certiorari under Section 6466 et seq., Code of 1927, to the board of adjustment of the city of Des Moines to annul its action granting to the Norwood-White Coal Company a variance from a zoning ordinance. The Norwood-White Coal Company applied to the building commissioner for permit to open a coal mine within a district zoned for use as residential, and for height not to exceed 35 feet. The commissioner refused permit. The company appealed to the board of adjustment, and also made application to the board for a variance. The board overruled the decision of the commissioner, and granted the variance and permit. Property owners sued out writ of certiorari to the district court. The Norwood-White Coal Company intervened. Defendants and intervener moved to quash the writ. Plaintiffs demanded trial de novo, and offered evidence to sustain their contentions of fact, both with respect to the motion to quash and to the merits. The district court refused to receive the evidence, and annulled the writ of certiorari. Plaintiffs appeal. --Reversed.

Reversed.

Stewart & Hextell and Parrish, Cohen, Guthrie, Watters & Halloran for appellants.

Reson S. Jones, Eskil C. Carlson, Chauncey A. Weaver, and George W Vest, for L. A. Jester et al., appellees.

Charlton & Parker, for Norwood-White Coal Company, appellee.

MORLING J. STEVENS, C. J., and EVANS, DE GRAFF, ALBERT, KINDIG, and WAGNER, JJ., concur.

OPINION

MORLING, J.

The trial court refused to hear testimony offered by plaintiffs in support of the allegations of their petition for writ of certiorari, giving as his reason that he found no illegality appearing upon the face of the return, and on the return had no doubt as to the legality of the action of the board. Our view of the question of the correctness of this ruling is determinative of the appeal.

The ruling demands inquiry as to the method and scope of review by the trial court permitted by the legislative enactment (Code of 1927, Section 6466 et seq.,) granting to any person aggrieved by the decision of the board of adjustment the right to petition for writ of certiorari. Subsidiary inquiries are: 1. What questions may be raised on such special writ of certiorari? 2. Is the right to trial de novo which the statute gives limited to trial de novo on the case as set forth in the return to the writ? 3. May the plaintiff, on the requisite allegation of fact in his petition for the writ, be entitled, as matter of right, to introduce evidence? These subsidiary questions are inseparable in discussion, and no attempt will be made to consider them independently of each other.

The petition for the writ now before us makes allegations such as the following: That the action of the board of adjustment "is an attempt to give a special privilege to the Norwood-White Coal Company to the exclusion of all others, in that it permits the Norwood-White Coal Company to establish a 'heavy industry' within the residential district, contrary to the spirit of the zoning ordinance;" that it is proposed to operate the mine as a wagon mine, and all the coal mined will be removed by trucks or wagons, "all of which will injure the life and health of children attending" large public and private schools alleged to be located in the vicinity, "and will injure the lives of the residents in said vicinity and of the people frequenting" a large public park in that locality; that there was no evidence before the board that the variation asked by the Norwood-White Coal Company would not be contrary to public interest, but, on the contrary, the evidence and arguments presented were conclusive and undisputed that the establishment of the mine "was contrary to public interest, in that it would cause a lot of noise, and also the refuse from said coal mine, commonly known as a gob or slag pile, would give forth obnoxious odors and gas, to the detriment of the health and happiness of the residents in that immediate vicinity and to the hundreds of school children in attendance at both of said schools." It was alleged that the evidence without dispute showed that, in order to market the coal, approximately 266 trips by coal truck would have to be made every day in front of the school buildings and over the streets, to the irreparable injury of the public interest; that the undisputed evidence before the board was to the effect that all of the coal could be removed through another mine then in operation, for the same royalty that was to be paid by the Norwood-White Coal Company, and that hardship to the property owners would result from denial of permit. Numerous other allegations were made, to the effect that the action of the board was contrary to the spirit of the ordinance and to the public interest, and arbitrary.

The return to the writ does not show whether the board formally took evidence, but the arguments assume that facts not shown in the return were known to the board.

At the trial the defendants and intervener "moved to quash the petition of the plaintiffs and the amendment thereto," and plaintiffs resisted, for reasons which need not be here specifically set out.

The application for variance states that it is conservatively estimated that 800,000 tons of coal can be removed from the premises in the vicinity of the proposed shaft, and within ten years. It was proposed that all slate, slag, and refuse should be kept in the mine, and used to back fill rooms and entries, except so much as might be needed in constructing a road. The permit complained of was granted on the condition that this be done, and is limited in time to seven years.

Plaintiffs offered to introduce testimony to the effect that the coal stratum there was about three and one-half feet thick, and in order to get the necessary entries to comply with the state law, a large amount of dirt, slate, and refuse would have to be removed, and it was impracticable to open and operate the mine without producing large slag or gob piles, and that a dangerous and detrimental gas, heavier than air, would be generated from the mine and the slag piles; that the mine would have to be operated as a wagon or truck mine, would constitute a "heavy industry," and conditions were such that the use of the trucks to the extent required would be ruinous to the streets and perilous to the large number of school children attending the local schools; that the district was suitable for residence purposes only; that there were in the vicinity of the proposed mine about 200 houses of the average value of $ 5,000 each, the market value of which would be depreciated by the mine from 15 to 25 per cent, and that the district would be depreciated; that all of the coal could be removed through an existing railroad mine; and that the undisputed evidence before the board was to that effect. Without detailing the offers, it is sufficient to say that the evidence, if received, would tend to show that the granting of the permit would not be in harmony with the general purpose of the zoning ordinance, would be contrary to its spirit, the public interest, and substantial justice, and its denial would not result in unnecessary hardship. Notwithstanding the ostensible limitation of time, and the requirement for keeping slag in the mine, it might well, on the allegations and proffered evidence, be made to appear that most serious and permanent conditions, detrimental to the district and the public good, would result from the operation.

This is the first case arising out of the municipal zoning law to come before this court. The law, with some incidental variations, conforms to a standard in force in a number of states. See 3 McQuillin on Municipal Corporations (2d Ed.), Section 1051 et seq. Its constitutionality in general and various phases of its interpretation and meaning have come before a number of courts, whose labors thereon have greatly facilitated our investigation and thrown much light on the questions here involved. With few exceptions, the constitutionality of such laws has been sustained, as a valid exercise of the police power, in the interest of public peace, order, morals, health, safety, comfort, convenience, and the general welfare. City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823; Nectow v. Cambridge, 277 U.S. 183 (72 L.Ed. 842, 48 S.Ct. 447); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (71 L.Ed. 303, 47 S.Ct. 114); Zahn v. Board of Public Works, 274 U.S. 325 (71 L.Ed. 1074, 47 S.Ct. 594); Gorieb v. Fox, 274 U.S. 603 (71 L.Ed. 1228, 47 S.Ct. 675); Hadacheck v. Sebastian, 239 U.S. 394 (60 L.Ed. 348, 36 S.Ct. 143); 3 McQuillin on Municipal Corporations (2d Ed.), Section 1043 et seq.; Opinion of the Justices to the House of Representatives, 234 Mass. 597 (127 N.E. 525); City of Aurora v. Burns, 319 Ill. 84 (149 N.E. 784); Gilfillan's Permit, 291 Pa. 358 (140 A. 136); York Harbor Village Corp. v. Libby, 126 Me. 537 (140 A. 382); In re Wulfsohn v. Burden, 241 N.Y. 288 (150 N.E. 120); Magruder v. Redwood City, 203 Cal. 665, 265 P. 806; State ex rel. Cadillac Co. v. Christopher, 317 Mo. 1179 (298 S.W. 720). See "Legal Aspects of Zoning," by Newman F. Baker, 26, 43, 113 et seq., 141 et seq.; Bradley v. Board of Zoning Adjustment, 255 Mass. 160 (150 N.E. 892).

Arbitrary and unreasonable restrictions upon the use and enjoyment of property, prohibition of use which does not interfere with the equally rightful use and enjoyment by others of their property, or with the paramount rights of the public, or deprivation of property without due process of law, cannot be sustained, under...