Brackett v. City of Des Moines

• Decision Date: 14 December 1954
• Docket Number: No. 48641,48641
• Citation: 246 Iowa 249,67 N.W.2d 542
• Parties: M. Earl BRACKETT, Appellant, v. CITY OF DES MOINES, Iowa, and Fred Heyer, Inspector of Buildings, Appellees.
• Court: Iowa Supreme Court

Page 542

67 N.W.2d 542

246 Iowa 249

M. Earl BRACKETT, Appellant, v. CITY OF DES MOINES, Iowa, and Fred Heyer, Inspector of Buildings, Appellees.

No. 48641.

Supreme Court of Iowa.

Dec. 14, 1954.

Owen Cunningham and Fred Liew, Des Moines, for appellant.

Harold H. Newcomb and Frank D. Bianco, and Don C. Swanson, Des Moines, for appellees.

OLIVER, Justice.

Since 1926 plaintiff has owned two lots at the northeast corner of 50th Street and Urbandale Avenue, Des Moines. In 1926 the city council enacted the original Zoning Ordinance, No. 3619, under which the property at each of the four corners of that intersection was zoned commercial. The commercial zone extended one block east on Urbandale, to and including the four corners of 49th Street and Urbandale Avenue. This ordinance, apparently invalid for failure to give proper notices, was validated in 1939 by an act of the legislature. In 1934 plaintiff constructed upon the rear of his lots a four car garage which has since been used for storage purposes.

In 1942 the city revised and published its ordinances in one volume entitled, 'Municipal Code of Des Moines.' Zoning Ordinance 3619 was excepted from Ordinance 4724 which revised the general ordinances and established the Municipal Code, but said zoning ordinance, as amended, was made Chapter 2A in the appendix of said book. The use and height and area maps were enclosed in a pocket in the cover. The city clerk certified that 'the foregoing pages, together with the Appendix, * * * contain the revised ordinances of 1942, of the city of Des Moines, as approved and ordered published by resolution of the city council, * * *.' Plaintiff maintains the Des Moines Municipal Code is merely a compilation of the ordinances therein set out. We do not understand defendants contend to the contrary with respect to the Zoning Ordinance in the Appendix.

December 10, 1952, the city council adopted a lengthy resolution, pointing to the need for a revision of zoning and planning in various areas, the studies already made, and the necessity of a new or revised comprehensive zoning plan, and requesting the plan and zoning commission to complete its studies, prepare a proposed revised zoning ordinance with necessary maps, hold public hearings and report to the council. This the commission proceeded to do. It submitted a preliminary report and thereafter a final report dated February 18, 1953, with the proposed ordinance and use district map. The council referred the matter to the city legal department and later held public hearings thereon. July 9, 1953, Zoning Ordinance No. 5453, the ordinance here in question was enacted by the council. It was published July 15, 1953.

In this ordinance the four corners at 50th and Urbandale, including plaintiff's lots, were zoned as residential. September 10, 1952, plaintiff had secured from the city, a building permit to erect a store building on his lots. This permit expired at the end of six months. May 14, 1953, plaintiff secured another building permit. August 6, 1953, plaintiff was notified his building permit was canceled because the zoning on the lots had been changed from commercial to residential.

Plaintiff then instituted this suit against the city and its building inspector, praying that his rights under the zoning ordinance be established, that the ordinance be adjudicated invalid and that defendants be enjoined from enforcing it and cancelling his building permit. Trial resulted in judgment for defendants and this appeal by plaintiff. The statutes involved are the Zoning law, enacted in 1923, now Chapter 414, Code of Iowa 1954, I.C.A. entitled, 'Municipal Zoning', and Chapter 366, Code of Iowa, I.C.A., entitled, 'Ordinances.'

I. Chapter 2A of the appendix to the (1942) Municipal Code of Des Moines is entitled, 'Zoning.' Its sub-title is 'Ordinance No. 3619--Zoning Ordinance--Des Moines, Iowa.' The 1953 Zoning Ordinance (5453) is entitled.

'An ordinance to amend Ordinance No. 4724, being the Municipal Code of Des Moines, Iowa, by repealing all of Chapter 2A of the Appendix thereof, as amended by Ordinance No. 4758, passed January 28, 1943 (and 58 other numbered and dated ordinances) * * * and enacting in lieu thereof a new Chapter 2A to regulate and restrict the location and use of buildings, structures and land for trade * * * residence * * *', etc., and repealing Ordinance No. 4758 (and the 58 other amendatory ordinances).

It states in part:

'Be It Ordained By the City Council * * *:

'Section 1. That Ordinance No. 4724, being the Municipal Code of Des Moines, * * * be and is hereby amended by repealing all of Chapter 2A of the Appendix thereof, * * * (as amended by the 59 listed ordinances) and enacting a new Chapter 2A as follows:

Chapter 2A Zoning

'* * *

Part I Title

'2A 1. Title. This Ordinance shall be known and may be cited and referred to as the 'Zoning Ordinance' of the City of Des Moines, Iowa.'

Plaintiff assails the validity of the ordinance because it states it amends Ordinance No. 4724. The statement in the title that it amends 'Ordinance No. 4724, being the Municipal Code,' is limited by the language immediately following 'by repealing all of Chapter 2A of the Appendix thereof * * *.' Moreover, the new Ordinance No. 5453, does not directly affect Ordinance No. 4724 and the statement in the title with reference to amending Ordinance No. 4724 being the Municipal Code, may be treated as surplusage. People ex rel. v. Bowman, 253 Ill. 234, 97 N.E. 304, 308; City of Chicago v. McKinley, 344 Ill. 297, 176 N.E. 261, 265, 266; Worthington v. District Court, 37 Nev. 212, 142 P. 230, 233 to 235, L.R.A.1916A, 696, Ann.Cas.1916E, 1097. The new ordinance merely enacts a new Chapter 2A and repeals the old Chapter 2A of the appendix to the Municipal Code, with the title 'Zoning' and sub-title 'Ordinance No. 3619-- Zoning Ordinance--Des Moines, Iowa.' The 59 listed amendatory ordinances are also repealed.

Plaintiff contends also the new ordinance is invalid because the number of the repealed original zoning ordinance, 3619, is not set out therein. Section 366.2 Code of Iowa 1954 I.C.A., provides an ordinance revising or amending an ordinance or section thereof shall specifically repeal the ordinance or section amended or revised. Although this necessitates the identification of an ordinance to be repealed, it does not require that such identification be made in any particular language or form. It is sufficient that the identification be such that the lawmakers and the people be not left in doubt as to what ordinance is repealed. City of Chicago v. McKinley, supra, 344 Ill. 297, 176 N.E. 261, 265, 266; Worthington v. District Court, supra, 37 Nev. 212, 142 P. 230, 233 to 235, L.R.A.1916A, 696, Ann.Cas.1916E, 1097.

In Lane-Moore Lumber Co. v. Storm Lake, 151 Iowa 130, 134 to 137, 130 N.W. 924, 926, 927, this court held valid an ordinance, which stated it repealed section 1 of Ordinance No. 20 and enacted a new section 1, notwithstanding the fact that Ordinance No. 20 was a void ordinance. The court pointed out the new ordinance was complete and sufficient in itself.

In the case at bar the reference to the repealed Zoning Ordinance as Chapter 2A of the Appendix to the Municipal Code would not cause any uncertainty as to its identity. Apparently it was the practice to thus identifying the old zoning ordinance, even in the courts. See Granger v. Board of Adjustment, 241 Iowa 1356, 44 N.W.2d 399. A person inspecting the repealed Chapter 2A of the Appendix to the Municipal Code would observe, at first glance, the statement that it was Zoning Ordinance No. 3619. Certainly, such person would have no doubt that was the repealed ordinance. Moreover, under Chapter 414, Code of Iowa, I.C.A., a city is necessarily limited to one comprehensive zoning ordinance usually called the 'Zoning Ordinance.' Hence, the identification of this ordinance is simple and certain.

We hold that, under the circumstances, the reference to Ordinance 4724 as the Municipal Code, and the failure to give the original number of the repealed Zoning Ordinance did not render the new zoning ordinance invalid.

II. Plaintiff argues a zoning ordinance 'cannot be amended by repeal and re-enactment.' This contention is not meritorious. We have held a municipality may amend its zoning ordinance any time it deems circumstances and conditions warrant such action. Keller v. Council Bluffs, 245 Iowa ----, 66 N.W.2d 113, 116. Section 366.2 Code of Iowa 1954, I.C.A., provides an ordinance revising or amending an ordinance or section thereof shall repeal the same and set forth in full the ordinance or section as amended or revised. Section 25.65, McQuillin, Municipal Corporations, 3rd Ed. (1950), states:

'Generally speaking, amendatory or subsequent zoning ordinances may be enacted where they are necessary to secure the public health, safety, morals or welfare or other legitimate object of the police power. Or zoning ordinances may be repealed upon the same basis * * *.

'Clearly a municipality vested with the power to comprehensive zone its area must have power to amend its zoning ordinances from time to time where there are substantial changes of conditions, which inevitably occur, and where the amendment has some reasonable relation to the end sought to be obtained, viz., a furtherance of the public interest. The reason is that zoning is not static, but it changes with changed conditions and the complexities of the modern age. If the rule were otherwise there would be no progress.'

In the language of Yokley, Zoning Law and Practice, 2nd Ed., section 75: 'Frequently it becomes necessary to substitute ordinances by outright repeal and re-enactment rather than by amendment.' 58 Am.Jur., Zoning, section 169, states a municipality authorized, at its option, to establish a zoning system may terminate, repeal in part, or amend its zoning ordinances from time to time as conditions warrant and require. Of course,...