Boardman v. Davis
| Decision Date | 12 May 1942 |
| Docket Number | 45801. |
| Citation | 3 N.W.2d 608,231 Iowa 1227 |
| Parties | BOARDMAN v. DAVIS et al. (CITY OF MARSHALLTOWN, Intervenor). |
| Court | Iowa Supreme Court |
Lundy Butler & Lundy, of Eldora, for appellants.
Boardman & Cartwright and Harry Druker, all of Marshalltown, for appellee.
W D. Kearney, of Marshalltown, for intervenor-appellee.
In the spring of 1941, defendants purchased and started to erect a dwelling house upon the north 80 feet of Lot 5, in a certain block in Marshalltown. Said Lot 5 was an interior lot, 60 feet wide and 182 feet long. It was bounded on the north by Main Street and extended south to an alley, which intersected the block.
Certain other lots in the same half block were occupied by three other dwellings, which had been constructed many years previously and which also faced north on Main Street. One of these was the homestead of plaintiff. These houses were set back from the street 42 1/2 feet, 68 feet and 55 feet, respectively, so that the average building line in that block was about 55 feet south of Main Street. The house defendants were building was set back only about 26 or 30 feet south of said street.
Plaintiff first learned of this construction work upon his return in April, 1941, from an extended absence. He then demanded the removal of said house and upon defendants' refusal instituted this action in equity to require such removal. Later the city intervened in said action and in effect joined with plaintiff. The principal basis of the suit was that the house was being constructed in violation of the set-back provisions of the Zoning Ordinance of Marshalltown. This is a comprehensive zoning ordinance, which took effect in 1937 and which provides in part:
The zoning ordinance also provides that no building shall be erected except in conformity with its provisions, and requires a certificate of occupancy evidencing such compliance to be applied for coincident with the application for the building permit. The applicant for a building permit is required to furnish plans drawn to scale, showing the dimensions of the lot, size and location of building to be erected, the distance every building within the block is set back from the street line upon which the lot abuts and other information necessary for the proper enforcement of the ordinance.
The following building permit issued for defendants' house:
It was not contended that a certificate of occupancy was applied for in connection with the application for building permit or that a plan was furnished showing the dimensions of the lot, location of the building to be erected thereon and the distances other buildings in the block were set back from the street. The decree ordered the removal of the house to conform to the zoning ordinance with particular reference to the setback provisions. Defendants have appealed. The material facts are not in controversy.
I. The Municipal Zoning Law, Chapter 324, Code of 1939, empowers cities and towns to adopt comprehensive zoning ordinances. The constitutionality of such statutes and ordinances enacted thereunder have been generally 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. Anderson v. Jester, 206 Iowa 452, 456, 221 N.W. 354, 356; Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016.
In this case the principal controversy concerns the validity of the set-back provisions of the ordinance, which require one constructing a residence to conform to the average building line established by other buildings in the block, the required set- back, however, being limited to 50 feet. This precise question has not been passed upon by this court but has received frequent consideration elsewhere. A leading case is Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 677, 71 L.Ed. 1228, 53 A.L.R. 1210, in which the court held a set-back ordinance did not contravene the due process and equal protection clauses of the 14th Amendment to the Federal Constitution.
The court stated that set-back provisions, and those requiring open areas at the sides and rear of a house, interfere with the owner's general right of dominion over his property but are justified by conditions resulting from the recent concentration of population in urban communities and the vast changes in the extent and complexity of the problems of modern city life. "State Legislatures and city councils, who deal with the situation from a practical standpoint, are better qualified than the courts to determine the necessity, character, and degree of regulation which these new and perplexing conditions require; and their conclusions should not be disturbed by the courts, unless clearly arbitrary and unreasonable."
The court referred with approval to certain reasons pleaded as a basis for the ordinance, that front yards afford room for lawns and trees, keep the dwellings farther...
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