Bowen v. Story County Bd. of Sup'rs

• Decision Date: 03 July 1973
• Docket Number: No. 55533,55533
• Citation: 209 N.W.2d 569
• Parties: C. C. BOWEN et al., Appellees, v. STORY COUNTY BOARD OF SUPERVISORS et al., Appellants.
• Court: Iowa Supreme Court

Page 569

209 N.W.2d 569

C. C. BOWEN et al., Appellees, v. STORY COUNTY BOARD OF SUPERVISORS et al., Appellants.

No. 55533.

Supreme Court of Iowa.

July 3, 1973.

John R. Hattery, Nevada, and T. G. Garfield, Ames, for appellants.

Miller & Rader, Nevada, for appellees.

Heard before MOORE, C.J., and RAWLINGS, LeGRAND, UHLENHOPP, and McCORMICK, JJ.

McCORMICK, Justice.

Defendants appeal a trial court certiorari judgment nullifying a rezoning by the Story County Board of Supervisors of 80 acres southwest of Ames in Story County owned by Glenn D. and Maxine Carlson. Plaintiffs are 16 neighboring owners and residents. Defendants include the board, its three members, the county auditor, and the county zoning administrator. Trial court found the board action rezoning the Carlson land from A--1, agricultural, to R--3, residential-mobile home parks, constituted illegal spot zoning. We are unable to reach that issue because we find the board acted without jurisdiction and on that basis affirm the trial court.

Two questions are presented: (1) Did the board have jurisdiction to approve the rezoning? (2) Are plaintiffs barred from asserting the jurisdictional issue?

I. The board's jurisdiction. The zoning power of county boards of supervisors is provided for in chapter 358A, The Code. Its general scope is defined in § 358A.3. The board is authorized to divide the county into districts and adopt zoning regulations and restrictions in § 358A.4. Standards and objectives are in § 358A.5.

The manner of adoption of regulations, restrictions, and district boundaries is prescribed in § 358A.6:

'The board of supervisors shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, and enforced, and from time to time amended, supplemented or changed. However, no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days notice of the time and place of such hearing shall be published in a paper of general circulation in such county. Such notice shall state the location of the district affected by naming the township and section, and the boundaries of such district shall be expressed in terms of streets or roads wherever possible.'

We are here concerned with a zoning change. Procedure for changes and amendments is found in § 358A.7:

'Such regulations, restrictions, and boundaries may, from time to time, be amended, supplemented, changed, modified, or repealed. * * * The provisions of section 358A.6 relative to public hearings and official notice shall apply equally to all changes or amendments.'

The rezoning was recommended by the county zoning commission an advisory body established under § 358A.8:

'In order to avail itself of the powers conferred by this chapter, the board of supervisors shall appoint a commission, to be known as the county zoning commission, to recommend the boundaries of the various original districts, and appropriate regulations and restrictions to be enforced therein. Such commission shall, with due diligence, prepare a preliminary report and hold public hearings thereon before submitting its final report; and the board of supervisors shall not hold its public hearings or take action until it has received the final report of such commission. After the adoption of such regulations, restrictions, and boundaries of districts, the zoning commission may, from time to time, recommend to the board of supervisors amendments, supplements, changes or modifications.'

Thus, the zoning commission is the recommending body and the board of supervisors is the legislative body. Where the county is being initially zoned, §§ 358A.6 and 358A.8 expressly require two public hearings, one before the zoning commission and a second before the board of supervisors. Where, as in this case, a zoning change is proposed, § 358A.7 prescribes public notice and hearing before the board of supervisors prior to such change. In addition, the implementing ordinance in Story County mandates a hearing before the zoning commission as to recommending zoning changes. Consequently, in Story County a public hearing must precede commission action to recommend a zoning change and an additional public hearing must precede board approval of such recommendation.

In the present case a public hearing was held only by the zoning commission. Plaintiffs appeared and objected to the rezoning of the Carlson land. The commission rejected their objections and recommended the zoning change to the board of supervisors. Contrary to Code § 358A.7, the board did not hold a public hearing prior to its resolution rezoning the Carlson land.

We have recently said, 'Zoning is an exercise of police power and the legislative authority under which a governmental unit acts is to be strictly construed.' Buchholz v. Board of Adjustment of Bremer County, 199 N.W.2d 73, 76 (Iowa 1972).

A statutory requirement of public hearing prior to a zoning change is mandatory and jurisdictional. Carroll v. Zoning Board of Review, 104 R.I. 676, 248 A.2d 321 (1968); Appeal of Kurren, 417 Pa. 623, 208 A.2d ,53 (1965); 2 Yokley, Zoning Law and Practice, § 13.6 at 77--78 (Third Ed. 1965); annot. 38 A.L.R.3d 167, 180; see also Ioeger v. Schumacher, 203 N.W.2d 572, 575 (Iowa 1973); Buchholz v. Board of Adjustment of Bremer County, Supra; Thompson v. Joint Drainage...