Boardman v. Davis, 45801.

• Decision Date: 12 May 1942
• Docket Number: No. 45801.,45801.
• Parties: BOARDMAN v. DAVIS et al. (CITY OF MARSHALLTOWN, Intervenor).
• Court: Iowa Supreme Court

231 Iowa 1227
3 N.W.2d 608

BOARDMAN
v.
DAVIS et al. (CITY OF MARSHALLTOWN, Intervenor).

No. 45801.

Supreme Court of Iowa.

May 12, 1942.

Appeal from District Court, Marshall County; James P. Gaffney, Judge.

Action in equity to require the removal of a partially constructed dwelling house allegedly located in violation of a city zoning ordinance. The city intervened and united with plaintiff. The decree granted the relief prayed. Defendants appeal.

Affirmed.

[3 N.W.2d 609]

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.

OLIVER, Justice.

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:

“Section 13. Set-Backs. * * *

“B. In any ‘A’ District or any ‘B’ District, where two or more lots in any block are occupied by buildings which existed at the time of the passage of this ordinance, the average of the distances of the street walls of such building from the street line shall be the established building line; but no building shall be required to set back more than fifty feet in any case in any ‘A’ District or in any ‘B’ District. * * *.”

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...