Board of Sup'rs of Cerro Gordo County v. Miller

• Decision Date: 05 September 1969
• Docket Number: No. 53661,53661
• Citation: 170 N.W.2d 358
• Parties: BOARD OF SUPERVISORS OF CERRO GORDO COUNTY, Iowa, Appellee, v. Robert J. MILLER and Harm Vierkant, d/b/a Chazen's Auto Parts, Appellants.
• Court: Iowa Supreme Court

Page 358

170 N.W.2d 358

BOARD OF SUPERVISORS OF CERRO GORDO COUNTY, Iowa, Appellee, v. Robert J. MILLER and Harm Vierkant, d/b/a Chazen's Auto Parts, Appellants.

No. 53661.

Supreme Court of Iowa.

Sept. 5, 1969.

Mark D. Buchheit, West Union, for appellants.

William Pappas and Vern Robinson, Mason City, for appellee.

RAWLINGS, Justice.

This appeal involves the constitutionality of certain provisions of a county zoning ordinance requiring discontinued nonconforming use of property within five years after its enactment.

By action in equity plaintiff board of supervisors sought to enjoin defendants' continued use of their land as an automobile wrecking establishment after expiration of prescribed amortization period. Defendants resisted contending the ordinance, as applied to them, constituted deprivation of property without due process of law.

Trial court found for plaintiff and defendants appeal. We affirm.

To the extent here relevant the case was submitted to trial court on these stipulated facts:

Exhibit A is the Cerro Gordo County Zoning Ordinance which became effective June 4, 1962.

Defendants own and operate a business known as Chazen's Auto Parts on that real estate described as: 'Beginning at the center of Section 12 in Township 96 North, Range 21 West of the 5th P.M., thence north along the west line of the Northeast Quarter (NE 1/4) of said Section, 70 rods, thence East at right angles a distance of 22.87 rods, thence South at right angles to the South line of said Northeast Quarter (NE 1/4), thence West along the South line of said Northeast Quarter (NE 1/4) to the place of beginning, except that part which has been deeded to the State of Iowa for highway use.'

Prior to adoption of the challenged ordinance defendants were engaged in the operation of said enterprise, and intentionally continued operations more than five years after enactment of the ordinance.

Under the terms thereof defendants' property is located in what is described as Zone A-Agricultural District. In material part the ordinance, Section XVI, provides:

'The lawful use of any building or land existing at the time of the enactment of this Ordinance may be continued although such use does not conform with the provisions of this Ordinance, except in the case of trailers used for dwelling or sleeping quarters.

'* * *

'E. Cessation

'Notwithstanding any other provisions of this Ordinance:

'a. Any automobile wrecking or junk yard in existence in a district in which it is a non-conforming use, prior to the effective date of this Ordinance, shall within five (5) years from such date become a prohibited and unlawful use and shall be discontinued; * * *.'

If an injunction is granted as plaintiff requests, defendants' automobile wrecking operations on the above described property must be accordingly terminated without payment of compensation.

Additionally trial court found defendants' business activities were substantial, but on the other hand no evidence was presented disclosing their use of the land involved any sizable investment in buildings or other improvements.

Despite the fact defendants assert 17 propositions relied upon for reversal, their argument is confined to claimed deprivation of property without due process of law. Section 1, Amendment 14, United States Constitution, and Article I, section 9, of the Iowa Constitution.

I. This case stands in equity and is accordingly reviewable de novo. Rule 334, Rules of Civil Procedure.

Although the scope of our review is the entire case, it will be confined to those propositions properly relied on And argued. Rule 344(a)(4) Third, R.C.P.; Braden v. Board of Supervisors of Pottawattamie Co., Iowa, 157 N.W.2d 123, 124; Quint-Cities Petroleum Co. v. Maas, 259 Iowa 122, 126, 143 N.W.2d 345; and B-W Acceptance Corporation v. Saluri, 258 Iowa 489, 499, 139 N.W.2d 399.

II. Enactment of zoning ordinances by the various counties is authorized by Code chapter 358A. And for present purposes the counties of this state qualify as municipal corporations. See Wapello County v. Ward, 257 Iowa 1231, 1234--1236, 136 N.W.2d 249.

Generally, reasonable zoning ordinances are within and constitute a lawful exercise of police power.

This court had occasion to deal with that subject in Anderson v. Cedar Rapids, Iowa, 168 N.W.2d 739, opinion issued June 10 1969, and there said: 'We have repeatedly held zoning is an exercise of police powers delegated by the state to municipalities, and to be strictly construed. (Authorities cited).

'However, In the enactment of such ordinances, including amendments thereto, a city or town (county) exercises vested legislative powers attended by a strong presumption of validity, which means if facially valid, and reasonableness of the enactment is fairly debatable, it must be allowed to stand. (Authorities cited).

'Stated otherwise, courts will not substitute their judgment as to wisdom or propriety of action by a city or town council, (county board of supervisors) acting reasonably within the scope of its authorized police power, in the enactment of ordinances establishing or revising municipal zones. (Authorities cited).

'Furthermore, we said in Plaza Recreational Center v. City of Sioux City, supra, loc. cit., 253 Iowa 253, 111 N.W.2d (758) 763: 'The test of whether a zoning ordinance is arbitrary and unreasonable is whether the means employed in the attempted exercise of the police power have any real, substantial relation to the public health, comfort, safety, and welfare, including the maintenance of property values. (Authorities cited).

'More recently this court held, a zoning ordinance is generally sustained as a valid exercise of police power in the interest of public peace, order, morals, health, safety, convenience, and the general welfare of a community, the prime consideration being its general purpose, not the hardship of individual cases. Jersild v. Sarcone, 260 Iowa 288, 149 N.W.2d 179, 183.

'Also, in the Plaza Recreational Center case, supra, 253 Iowa at 252, 111 N.W.2d at 762, is this pertinent statement: 'Generally speaking, whether the ordinance involved exceeded the council's authority, or whether is was unconstitutional as being in conflict with the due process or equal protection clauses of the state or federal constitution, The burden to prove the proviso unreasonable, arbitrary, capricious or discriminatory is upon the one asserting the invalidity. Hermann v. City of Des Moines, 250 Iowa 1281, 97 N.W.2d 893, and citations. The rule is well settled that when constitutional questions are raised all reasonable intendments must be indulged in favor of the validity of the enactment. We have also constantly held a classification or regulation of the use of property within the municipality will not be held arbitrary unless clearly so, and that when the issue as to whether it was an unreasonable or unequal exercise of power is fairly debatable, courts will not substitute their judgment for that of the legislative body charged with the primary duty and responsibility of determining the question. (Authorities cited.)' (Emphasis supplied.)'

As we said in Zilm v. Zoning Board of Adjustment, 260 Iowa 787, 150 N.W.2d 606, 610: 'It is also well settled that when the constitutionality of an ordinance is challenged all reasonable intendments must be indulged in favir of its validity. Plaza Recreational Center v. City of Sioux City, 253 Iowa 246, 252--253, 111 N.W.2d 758, 762--763 and citations; Wilkins v. City of San Bernardino, 29 Cal.2d 332, 175 P.2d 542, 547.

"The strong presumption in favor of a legislative act applies, as well, to zoning ordinances, * * *.' Brackett v. City of Des Mines, 246 Iowa 249, 260, 67 N.W.2d 542, 547.'

Furthermore, in the early case of Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, the court resolved all doubts as to whether a zoning ordinance measures up to the due process test when it held such an enactment, as with the exercise of any other police power, is constitutionally sound if reasonably applied.

See also Graham v. Worthington, 259 Iowa 845, 850--851, 146 N.W.2d 626; Benschoter v. Hakes, 232 Iowa 1354, 1361--1364 8 N.W.2d 481; City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34, 38--39; Wolf v. City of Omaha, 177 Neb. 545, 129 N.W.2d 501, 507--509; McQuillin, Municipal Corporations, 1965 Rev.Vol. 8A, section 25.296, page 353; 101 C.J.S. Zoning § 16, page 704; 16 C.J.S. Constitutional Law §§ 174--198, pages 889--973; 5, Am.Jur., Zoning, sections 16--31, pages 949--960; and 16 Am.Jur.2d, Constitutional Law, sections 290--292, pages 563--572.

This means defendants, in their attack on the ordinance at hand assumed a heavy burden, and any doubts as to constitutionality of the enactment must be resolved in its favor.

III. Zoning has been generally referred to as the division of a municipal corporate area into separate zones or districts, and the prescribing of land type uses permitted in each such zone or district to subserve the health, safety, morals or welfare of the community. See Rhyne on Municipal Law, Section 32.1, page 811; McQuillin, Municipal Corporations, 1965 Rev.Vol. 8, section 25.01, page 12; 101 C.J.S. Zoning § 1, page 660; 58 Am.Jur., Zoning, section 1, page 940; and 45 Words and Phrases, Perm.Ed., 'Zoning'.

Also, as to purpose and recent trends this court stated in Plaza Recreational Center v. City of Sioux City, 253 Iowa 246, 254, 111 N.W.2d 758, 763: 'Preservation of the character of the neighborhood is a valid reason for zoning regulations. It is said in McQuillin on Municipal Corporations, supra, at page 59 of Vol. 8, that 'zoning regulations promote the general welfare and are valid where they stabilize the value of property, promote the permanency of desirable home surroundings and add to the happiness and comfort of citizens.' We also said in Anderson v. Jester, supra, at page 457 of 206 Iowa, at page 357 of 221 N.W. (221 N.W....