Boomhower v. Cerro Gordo County Bd. of Adjustment

Decision Date10 December 1968
Docket NumberNo. 52995,52995
Citation163 N.W.2d 75
PartiesLeslie L. BOOMHOWER et al., Appellants, v. CERRO GORDO COUNTY BOARD OF ADJUSTMENT, Jack Dominic, Sidney Thompson, William Floy, William Werner, James R. Heiny, (Disqualified), Appellees.
CourtIowa Supreme Court

Boomhower & Nelsen, Mason City, for appellants.

William Pappas, Mason City, for appellees.

STUART, Justice.

The sole issue presented on this appeal is whether under the provisions of Chapter 358A, Code of Iowa, the board of adjustment has jurisdiction to hear and adjudicate an appeal from the action of the board of supervisors changing the zoning classification of certain land.

Application was made to the Cerro Gordo County Zoning Commission for a change of zoning classification of certain described land near Winnebago Heights, Mason City, Iowa to permit the expansion of an auto salvage operation. The zoning commission recommended to the Cerro Gordo County Board of Supervisors the change be made. On December 12, 1966, the board of supervisors, after 'a public hearing with notice as required by law', amended the zoning ordinance of Cerro Gordo County to reflect the recommendation of the zoning commission.

Plaintiffs, a group of Winnebago Heights residents, dissatisfied with the change of zone from 'R--1' single family residential and 'A' agricultural to 'I-H' heavy industry, filed a notice of appeal on December 12, 1966, with the Cerro Gordo County Board of Adjustment. Proper notice of the hearing on the appeal was given.

Upon hearing, the appeal was dismissed on the ground the board of adjustment was without jurisdiction because such appeal was not authorized by statute.

On February 8, 1967, plaintiffs petitioned the district court for Writ of Certiorari to review the action of the board of adjustment. Plaintiffs sought an order compelling the board of adjustment to hear plaintiffs' appeal claiming no other plain, speedy, and adequate remedy at law.

The district court annulled the Writ of Certiorari holding the board of adjustment was without jurisdiction to hear plaintiffs' appeal.

I. 'It is fundamental that the right of appeal is purely statutory and may be granted or denied by the legislature as it determines. Unless the statute makes provision therefor, expressly or by plain implication, there is no right of appeal. (Citations)' Novak v. Oneida Township School Board, 250 Iowa 668, 670, 95 N.W.2d 291, 292.

We therefore must examine chapter 358A to determine whether the legislature has conferred jurisdiction on the board of adjustment to hear and determine an appeal from the action of the county board of supervisors in amending a zoning ordinance.

'A cardinal rule of statutory construction is that, if reasonably possible, effect should be given every part of a statute.' Town of Mechanicsville v. State Appeal Board, 253 Iowa 517, 522, 111 N.W.2d 317, 320, and citations.

'Another settled rule of construction which is important here is that in determining the meaning of a statute all provisions of the act of which it is a part, and other pertinent statutes, must be considered.' Horner v. State Board of Engineering Examiners, 253 Iowa 1, 8, 110 N.W.2d 371, 374, and citations.

The pertinent sections provide:

'358A.10 Board of adjustment. The board of supervisors shall provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of this chapter shall provide that the said board of adjustment may, in appropriate cases, and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinances or regulations in harmony with its general purpose and intent and in accordance with the general or specific rules therein contained, and provide that any property owner aggrieved by the action of the board of supervisors in the adoption of such regulations and restrictions may petition the said board of adjustment direct to modify regulations and restrictions as applied to such property owner.

'358A.13 Appeals to board. Appeals to board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the county affected by any decision of the administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board of adjustment, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board of adjustment all the papers constituting the record upon which the action appealed from was taken.

'358A.15 Powers of board. The board of adjustment shall have the following powers:

'1. To hear and decide appears 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.

'2. To hear and decide...

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28 cases
  • City of Mound Bayou v. Johnson
    • United States
    • Mississippi Supreme Court
    • April 18, 1990
    ...the statute makes provision therefor, expressly or by plain implication, there is no right of appeal." Boomhower v. Cerro Gordo County Board of Adjust., 163 N.W.2d 75, 76 (Iowa 1968). KANSAS We have consistently held the right to an appeal is neither a vested nor a constitutional right, but......
  • Marshall v. State
    • United States
    • Mississippi Supreme Court
    • September 28, 1995
    ...the statute makes provision therefor, expressly or by plain implication, there is no right of appeal." Boomhower v. Cerro Gordo County Board of Adjust., 163 N.W.2d 75, 76 (Iowa 1968). KANSAS "We have consistently held the right to an appeal is neither a vested nor a constitutional right, bu......
  • Buchholz v. Board of Adjustment of Bremer County
    • United States
    • Iowa Supreme Court
    • June 29, 1972
    ...'governed by adequate guidelines.' City of Des Moines v. Lohner, 168 N.W.2d 779, 784 (Iowa 1969); cf. Boomhower v. Cerro Gordo County Board of Adjustment, 163 N.W.2d 75, 77 (Iowa 1968). We believe due process dictates that plaintiffs were entitled to notice from, and an opportunity to objec......
  • Montgomery v. Bremer County Bd. of Sup'rs
    • United States
    • Iowa Supreme Court
    • December 17, 1980
    ...1978). The parties agree that certiorari is the appropriate means to review the Board's actions. See Boomhower v. Cerro Gordo County Board of Adjustment, 163 N.W.2d 75, 77 (Iowa 1968). We next consider the proper scope of review. The court stated it would uphold the zoning ordinance amendme......
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