Board of Adjustment of City of Des Moines v. Ruble

• Decision Date: 14 January 1972
• Docket Number: No. 54626,54626
• Citation: 193 N.W.2d 497
• Parties: BOARD OF ADJUSTMENT OF the CITY OF DES MOINES, Appellant, Jerry's Homes, Inc., Intervenor-Appellant, v. Richard R. RUBLE et al., Appellees.
• Court: Iowa Supreme Court

Page 497

193 N.W.2d 497

BOARD OF ADJUSTMENT OF the CITY OF DES MOINES, Appellant Jerry's Homes, Inc., Intervenor-Appellant, v. Richard R. RUBLE et al., Appellees.

No. 54626.

Supreme Court of Iowa.

Jan. 14, 1972.

James F. Fowler and Eugene Olson, Asst. City Attys., Des Moines, for appellant.

J. Blaine Phipps, Des Moines, for intervenor-appellant.

Robert G. Riley, Des Moines, for appellees.

MASON, Justice.

This is an appeal by defendant Des Moines Zoning Board of Adjustment, hereinafter referred to as the Board, and Jerry's Homes, Inc., hereinfter referred to as intervenor, from a judgment of the Polk district court in a special certiorari proceeding pursuant to sections 414.15--414.19, The Code, 1966, reversing a decision of the Board, granting a zoning variance to intervenor, and directing the Board to enter an order denying the variance. The variance had allowed intervenor to construct a home on lot 19, Taylor Park in contravention of section 2A--26, Des Moines Zoning Ordinance.

There is no dispute as to the factual background giving rise to this lawsuit.

July 15, 1953, defendant city enacted a zoning ordinance affecting the use and occupancy of all property in the city including the lots involved in this matter. This ordinance contained an exception to the general regulations, section 2A--44, in which it was provided that a single-family dwelling could be located on any lot of official record as of the effective date of the ordinance, regardless of the lot's area or width. July 16, 1965, section 2A--44 was amended in a number of respects and reenacted as section 2A--26 with a limitation on the existing lot of record exception:

'EXCEPTIONS AND MODIFICATIONS. The regulations specified in this ordinance shall be subject to the following exceptions and interpretations:

'(A) Use of Existing Lots of Record. In any district where dwellings are permitted, a single-family dwelling may be located on any lot or plot of official record as of the effective date of this ordinance irrespective of its area or width; provided, however, that if two or more lots or plots with continuous frontage in single ownership are of record as of the effective date of this ordinance such lots shall be considered buildable only in combinations that most nearly approximate the lot width and area requirements of the district in which located. The following yard requirements shall apply:

'1. The sum of the side yards of any such lot or plot shall not be less than thirty (30) percent of the width of the lot, but in no case less than ten (10) percent of the width of the lot for any one side yard.

'2. The depth of the rear yard of any such lot need not exceed twenty (20) percent of the depth of the lots, but in no case less than ten (10) feet.'

Lots 19 and 20 in Taylor Park, a plat now in and forming a part of the city of Des Moines, are adjoining lots located on the north side of Welker Avenue and are zoned R--1 Single Family Residence District. Each lot has a 50-foot frontage on Welker and is approximately 136 feet deep, substantially less width and lot area than is required by R--1 zoning for construction of single-family dwellings which calls for a minimum lot area of 10,000 square feet and lot width of 80 feet.

A residence had been erected on lot 20 in 1923. Both lots were held in single ownership of record from March 1949 until December 29, 1966.

Intervenor had acquired title to lots 19 and 20 by deed dated December 20, 1966, from Martin and wife who had obtained title to these lots in 1961. Nine days later intervenor transferred title to lot 20 to Mahr and wife but retained ownership of lot 19 to time of trial.

October 3, 1969, intervenor applied for a building permit to construct a single-family dwelling on lot 19. He received the permit three days later. Intervenor did not advise the City Zoning Enforcement Office of his previous ownership of lot 20, nor did that office make any independent check to determine whether lot 19 was held in single ownership with another contiguous substandard lot as of July 16, 1965.

Intervenor immediately surveyed the ground, excavated a basement, contracted for the erection of the basement wall, poured footings and otherwise invested approximately $3900 in lot 19. Contemporaneously, the zoning office was informed lots 19 and 20 had been previously held in single ownership. On October 17, 1965, intervenor's building permit was revoked and intervenor stopped construction.

Intervenor appealed to the Board who subsequently issued a variance allowing construction, pursuant to section 414.12, The Code, 1966.

'414.12. Powers. The board of adjustment shall have the following powers:

'1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant thereto.

'* * *

'3. To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.'

The statutory provisions referred to in this opinion are to the 1966 Code. However, these sections bearing the same numbers appear without change in the Code, 1971.

November 14, 1969, after notice and a public hearing was had, the Board's decision was filed granting intervenor's appeal for:

'permission to divide a lot of record into two parcels. Lot 20, upon which a dwelling presently exists at 4001 Welker Avenue requires a variance of 30 feet of the required 80 feet minimum lot width, 3 feet of the required 8 feet least width on one side and 3220 sq. ft. of the required 10,000 sq. ft. on lot area. Lot 19, required a variance of 30 feet of the required 80 feet minimum lot width, 3 feet of the required 8 feet least width on one side and 3,158 sq. ft. of the required 10,000 sq. ft. of lot area on which a 28 foot by 24 foot single family dwelling is proposed at 4003 Welker Avenue Property concerned is lots 19 and 20, Taylor Park--100 feet by 136.25 feet--presently located in an R--1 Single Family Residence District.'

Richard R. and Linda Ruble, owners of neighboring lot 18, Taylor Park, petitioned for writ of certiorari claiming illegality in the decision of the Board. They will be hereinafter referred to as plaintiffs. Their petition was filed pursuant to Code section 414.15 which provides:

'Petition for certiorari. Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment under the provisions of this chapter, or any taxpayer, or any officer, department, board, or bureau of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.'

Plaintiffs alleged the Board's decision and resolution granting the variance was 'erroneous and illegal, inasmuch as the action of the defendant Board in the enactment thereof and in the granting of the requested division and variances was arbitrary, unreasonable, unjust, out of keeping with the spirit of the zoning statutes, and in express contradiction of the provisions of section 2A--26 of the municipal code aforesaid; that a proper application of said section would prohibit the construction of a single-family dwelling on lot 19 * * * said decision serves none of the purposes of the zoning ordinance, chapter 2--A, fails to promote the health, safety, and general welfare of the community, as required in said chapter 2--A, and is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property, and particularly the property owned by these plaintiffs.'

Plaintiffs asked that the decision of the Board be reversed and that the Board be directed to enter an order denying intervenor's appeal.

The court found lots 19 and 20 were held in single ownership on July 16, 1965, the date section 2A--26 of the Des Moines Zoning Ordinance became effective, and concluded under the provisions of the zoning ordinance in effect December 30, 1966, lots 19 and 20 'could be considered buildable only in combinations that most nearly approximate the lot width and area requirements of the district in which located. A single residence on lots 19 and 20 would more nearly approximate the lot width and area requirements than would one residence on each of the 50 foot lots.'

The court further concluded that lot 19 was not a buildable lot on December 30, 1966, following intervenor's conveyance of lot 20 to Mahr or on the date of the hearing before the Board and a variance was required from the Board before a building permit could be issued.

A lot is defined in section 2A--3 of the Des Moines Zoning Ordinance in this manner:

'Lot: For the purposes of this ordinance, a lot is a parcel of land of at least sufficient size to meet minimum zoning requirements for use, coverage and area and to provide such yards and other open space as are herein required. Such lot shall have frontage on a public street and may consist of: (a) A single lot of record; (b) A portion of a lot of record; (c) A combination of complete lots of record; of complete lots of record and portions of lots of record; or of portions of lots of record; and (d) A Parcel of land described by metes and bounds; provided that in no case of division or combination shall any residual lot or parcel be created which does not meet the requirements of this ordinance.'

Section 2A--29 of this ordinance provides in pertinent part:

'Section 2A--29. BOARD OF ADJUSTMENT; POWERS AND DUTIES.

'* * *

'(B) To grant a variation in...