Call Bond & Mortgage Co. v. Sioux City
| Decision Date | 12 February 1935 |
| Docket Number | 42742. |
| Citation | 259 N.W. 33,219 Iowa 572 |
| Parties | CALL BOND & MORTGAGE CO. v. SIOUX CITY et al. (PICKUS, Interveners). |
| Court | Iowa Supreme Court |
Appeal from District Court, Woodbury County; A. O. Wakefield, Judge.
Suit by the Call Bond & Mortgage Company brought against the city of Sioux City, Iowa, for permanent injunction to restrain interference with construction of a commercial greenhouse on property owned by appellee located within class A residential district of Sioux City, Iowa. Opinion states the facts. Trial court granted the injunction, and the city and certain interveners appeal.
Reversed.
H. C Harper and John D. Beardsley, both of Sioux City, for defendant and appellant Sioux City.
Sam G Pickus and Griffin & Griffin, all of Sioux City, for intervening defendants and appellants.
Corbett & Corbett, of Sioux City, for plaintiff and appellee.
Call Bond & Mortgage Company, a corporation, of Sioux City, Iowa, is the owner in fee simple of lots 1, 2, and 3 in block 66, Pierce's addition to Sioux City, Woodbury county, Iowa. On the 13th day of September, 1933, the appellee applied to the proper city official of Sioux City for a permit to erect upon the above-described property a commercial greenhouse. At that time there was in full force and effect zoning ordinance of Sioux City, known as Ordinance No. O-1382, enacted under and by virtue of the provisions of the statutes of the state of Iowa now embraced in chapter 324 of the 1931 Code of Iowa (section 6452 et seq.). It is conceded that the property of appellee above described is located in what is designated in said ordinance as A residence district. The provisions of this ordinance necessary to a determination of this case are as follows:
" Sec. III. ‘ A’ Residence District . In the ‘ A’ District no buildings or premises shall be used, and no buildings shall be hereafter erected or structurally altered, save as provided in this ordinance, except for one or more of the following uses : * * *
8. Nurseries and greenhouses . The exterior design of the front of the buildings shall be in harmony with the exterior design of the dwellings generally in the district in which the proposed nursery or greenhouse is located and the grounds in front of such premises shall be landscaped and planted to shrubbery and so maintained.
9. Accessory buildings, including one private garage or one private stable . The location of all private stables shall be subject to the regulations of the Health Department of the City.
10. Uses customarily incidental to any of the above uses when located on the same lot not involving the conduct of a business on the premises." (Italics are ours.)
Paragraph 27 of section I: " Business, as used in Paragraph 10 of Section III of the Zoning Ordinance, is defined as that employment which occupies the time, attention and labor of men or women for the purpose of a livelihood or profit."
The ordinance also provides under section XI for a board of adjustment which is authorized by statute and stipulates among other things:
" Appeal: Appeal to the Board of Adjustment may be taken within thirty (30) days by any person or persons aggrieved or by any officer, department, board or bureau of the City of Sioux City, affected by any decision of the Building Inspector.
Jurisdiction: The Board of Adjustment shall have the following powers:
1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Building Inspector in the enforcement of this ordinance."
Here follows a long list of powers conferred upon the board of adjustment, set out in eleven different paragraphs. Then it provides: " In exercising the above mentioned powers such Board may reverse or affirm wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken."
Section XVIII provides:
It is not claimed by any of the parties to this litigation that the ordinance does not conform to the statute, nor is it claimed that the zoning ordinance is unconstitutional. Both appellants and appellee submit the case upon the theory that the zoning ordinance of Sioux City, as introduced in evidence in this case, is a valid, existing, municipal law.
On September 13, 1933, F. E. Colby, building inspector, issued a permit to Call Bond & Mortgage Company for the " erection of a brick and glass greenhouse on the above described property at a cost of $4,700.00." Plans and specifications were submitted to the building inspector at that time and were approved by him, and bear his stamp of approval. The permit is signed, " F. E. Colby, Building Inspector." On the 15th day of September, 1933, just two days later, the city council met and passed the following resolution, designated as " Resolution No. P-6775" :
Now therefore be it resolved by the city council of the city of Sioux City, Iowa, that the Building Inspector of said city is hereby ordered and directed to revoke said building permit and immediately notify said Call Bond & Mortgage Company of the revocation thereof, and
Be it further resolved, that said Building Inspector is hereby authorized and directed to return the permit fee of $3.50 paid by said Call Bond & Mortgage Company at the time that notice of revocation of permit is served upon said Call Bond & Mortgage Company.
W. D. Hayes, Mayor.
Passed September 15, 1933
Approved September 15, 1933.
Attest: Edgar V. Moon, City Clerk."
In compliance with said resolution, the building inspector on said date notified Call Bond & Mortgage Company of the action of the council revoking the permit and refunded the $3.50 filing fee. The appellee by letter returned the check of $3.50 and denied the right of the council and the building inspector to revoke the building permit. A few days thereafter, plaintiff and appellee commenced this action, setting up the facts as herein set forth and alleging that following the granting of said permit by the building inspector, it contracted to purchase a portion of the material necessary for the construction of said greenhouse, and averring that it will suffer irreparable damage if not permitted to construct the same, that said city through its officers will attempt to prevent the construction of said greenhouse, and that it has no adequate remedy at law, and praying for a writ of injunction.
The defendant city filed its answer, alleging that said permit was issued without authority of the said building inspector and was wholly void and without force or effect, and in a separate division of the answer averring that if said permit had any validity, the same was thereafter validly revoked by resolution of the city council and by action of the building inspector, setting up a copy of the resolution of the council. Defendant city further alleged in another division of its answer that certain persons, claiming to be aggrieved by the action of the building inspector in granting said permit, had taken and filed an appeal with the board of adjustment, as provided by said ordinance, and that the plaintiff and appellee had failed to appeal as provided by said ordinance from the action of the building inspector in revoking said permit, and that the court is without jurisdiction until after decisions of said board as provided by said ordinance; and said defendant prayed that the petition of the plaintiff be dismissed.
The persons thus appealing from the order granting said permit are the same persons who are named as interveners in the caption of this case. Said interveners, after perfecting their appeal to the board of adjustment, also filed their petition of intervention and set up substantially the same allegations that were contained in the answer of the city; in addition thereto, they alleged that the plans and specifications do not conform to the rules and regulations set forth in said ordinance, and that the construction and operation of a commercial greenhouse, as contemplated by plaintiff and appellee, would constitute a nuisance. In answer to this petition of intervention, the appellee admitted the filing of the appeal on the part of interveners, but denied that the court was without jurisdiction by reason of the filing of said appeal for the reason that said appeal was not filed until after the filing of plaintiff's petition herein, and alleged that said board of adjustment was without jurisdiction to hear said appeal.
On the issues thus joined, trial was had to the court, with the result that the writ was granted. There is very little if any dispute over the facts in the case.
It is claimed by the appellants that the building inspector was without right or authority to grant the permit for the reason that such permit was in violation of the zoning ordinance of said city, their contention being...
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