Chicago, R.I. & P.R. Co. v. Liddle

• Decision Date: 09 January 1962
• Docket Number: No. 50499,50499
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellee, v. David M. LIDDLE, Chairman, and Paul Ashby, Earl Gritton, J. Richard Astley and Edward B. Ryan, as members of the Board of Adjustment of the City of Des Moines, Iowa; The City of Des Moines, Iowa; and Fred Heyer, as Building Inspector of the City of Des Moines, Iowa, Appellants.
• Court: Iowa Supreme Court

Page 852

112 N.W.2d 852

253 Iowa 402

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellee, v. David M. LIDDLE, Chairman, and Paul Ashby, Earl Gritton, J. Richard Astley and Edward B. Ryan, as members of the Board of Adjustment of the City of Des Moines, Iowa; The City of Des Moines, Iowa; and Fred Heyer, as Building Inspector of the City of Des Moines, Iowa, Appellants.

No. 50499.

Supreme Court of Iowa.

Jan. 9, 1962.

Leonard C. Abels, Corp. Counsel, Anthony T. Renda, City Sol., Leo E. Gross and Philip T. Riley, Assistant City Atty., Des Moines, for appellants.

A. B. Howland and J. H. Martin, Des Moines, for appellee.

GARFIELD, Chief Justice.

The vital question on this appeal is the legality of certain provisions of Part XIV of the 1953 zoning ordinance of the city of Des Moines. The trial court upheld plaintiff's claim they are illegal. We affirm the decision.

Plaintiff's railroad lines run generally east and west, also north and south through the city. Branch lines also leave it. Plaintiff owns a sizable tract of land between Southeast 18th Street on the west, Dean Avenue on the north, Southeast 34th Street on the east, and Market Street on the south. Its terminal yard is located there. The zoning ordinance classifies the land as 'M-2 Heavy Industrial District.'

Plaintiff applied to the city building inspector for permits to build and occupy on the tract stockyards with 20 pens for the care and feeding of livestock transported on its trains. The inspector refused the permits because no occupancy permit could be issued for a stockyard without approval by the city board of adjustment, herein called 'the board.' Upon plaintiff's appeal to the board, following a hearing before it, the appeal was denied.

Plaintiff then brought this action in certiorari in district court, alleging the board's decision is illegal. An action in certiorari to test the legality of such a decision is authorized by section 414.15, Code 1958, I.C.A., and a similar provision in Part XIX of the zoning ordinance. A count of plaintiff's petition sought a declaratory judgment that certain provisions of Part XIV of the ordinance are illegal and void. Another count asked a writ of mandamus directing issuance of the permits applied for. Following trial to the court the relief sought was granted and defendant city, members of its board of adjustment and building inspector have appealed.

I. We consider first the most important question--legality of certain provisions of Part XIV of the zoning ordinance. The part relates to zone 'M-2 Heavy Industrial District' in which, as stated, plaintiff's tract lies. So far as here pertinent it provides in paragraph A that premises in the district may be used for any purpose whatsoever except 1) No occupancy permit shall be issued for any use in conflict with any city ordinance or state law regulating nuisances, and 3) No such permit shall be issued for stockyards or 17 other stated uses 'until and unless the location of such use shall have been authorized by the Board after report by the Fire Prevention Bureau of the fire department and the health department.'

Some of the 18 specified uses list several related ones. Defendants do not claim the use for which plaintiff seeks an occupancy permit conflicts with any city ordinance or state law. Subparagraph (2) of paragraph A has no application here.

The 'Required Conditions' in the ordinance state that the best practical means known for disposal of refuse matter or water-carried waste, abatement of odors, dust, smoke, gas, noise or similar nuisance, shall be employed. Also that all buildings shall be located at least 200 feet from any 'R' district and not less than 100 feet from any other district except an 'M-1' district. Buildings are also limited in height. No lack of compliance with these conditions is asserted.

Plaintiff's petition alleges the ordinance delegates to the board the power to determine whether stockyards and other specified businesses shall be permitted without fixing any standards to guide or limit the board in determining the question, the ordinance permits a purely arbitrary, capricious and unreasonable decision by the board and thus deprives plaintiff of due process and equal protection of the laws in violation of applicable provisions of state and federal constitutions.

The power of cities and towns to enact zoning ordinances is conferred by chapter 414, Code 1958, I.C.A., and has been frequently recognized by our decisions. Section 414.2 provides, 'All such regulations and restrictions shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.'

Section 414.7 requires the city council to provide for the appointment of a board of adjustment which 'may in appropriate cases and subject to appropriate conditions and safeguards make special exceptions to the terms of the ordinance(s) in harmony with its general purpose and intent and in accordance with general or specific rules therein contained * * *.' Appeals to the board by any person aggrieved by any decision of 'the administrative officer' are authorized by section 414.10.

Section 414.12 specifies the three powers the board shall have. The first is to hear and decide appeals as authorized by 414.10. The second is '2. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.' The third power the statute confers on the board is, '3. To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.'

The second of these provisions comes nearest to conferring on the board the power Part XIV of this zoning ordinance delegates to it. Defendants seem to rely mainly on this provision as the statutory authority for the requirement of the ordinance that the board must authorize the location of plaintiff's stockyards in this M-2 district before any permit therefor may be issued.

The board exercises administrative and quasi judicial power. Anderson v. Juster, 206 Iowa 452, 459, 221 N.W. 354, and citations. There is no question of variance in the case at bar. Osius v. City of St. Clair Shores, 344 Mich. 693, 75 N.W.2d 25, 26, 58 A.L.R.2d 1079, 1081; Green Point Savings Bank v. Board of Zoning Appeals, 281 N.Y. 534, 24 N.E.2d 319, 322.

We may assume, without so holding, the city has the power to delegate to the board authority to permit or deny the erection and use of plaintiff's stockyards in a heavy industrial district. We are clear, however, and defendants do not deny, such delegation of power must be accompanied by sufficient guides or standards to govern the board's action. This to the end interested parties may be able to reasonably determine their rights and they will not be left to the board's arbitrary discretion.

The annotation in 58 A.L.R.2d 1083, 1097-1098, states: 'It is well settled in the field of zoning law, as in administrative law generally, that in delegating power to an administrative agency the legislature must spell out its policies in sufficient detail to furnish a guide which will enable those to whom the law is to be applied to reasonably determine their rights thereunder, and so that the determination of those rights will not be left to the purely arbitrary discretion of the administrator.'

1 Yokley on Zoning Law and Practice, Second Ed., section 62, says: 'The general rule is that a zoning ordinance must prescribe definite standards and that neither the city council, the board of appeals created by ordinance or statute, nor the building inspector are properly vested with discretionary rights in granting building permits * * * unless there has been established a definite standard to guide them in the exercise of such powers.'

The 1961 cumulative supplement to Yokley, page 46, states, 'Any statute giving to an administrative official discretionary powers and duties must lay down an intelligible principle for the guidance of such official in the performance of those duties.'

Rhyne, Municipal Law, sections 32-3, page 821, says: 'Subordinate zoning boards * * * may be vested with broad discretionary powers to administer zoning ordinances, but adequate standards to guide them in the exercise of the discretion vested must be contained in the zoning ordinance or an invalid delegation of power may result.'

101 C.J.S. Zoning § 42, states: 'Thus zoning statutes and ordinances, provided they furnish a reasonably adequate standard by which to act, are not invalid as in violation of the principle against the delegation of legislative powers, where they grant to an administrative board or officer power * * * to grant a use permit.'

We can find in the state statutes no guides or standards by which the board is to act in exercising such power as is delegated to it by Part XIV of the zoning ordinance. The ordinance itself, insofar as it is contained in the record (presumably all that is here pertinent), provides that authorization by the board of a permit to occupy stockyards shall come after report by the Fire Prevention Bureau of the fire department and the health department. No duty is placed on the board to abide by any recommendations contained in these reports. This provision can hardly be said to provide adequate standards for the board's exercise of power under Part XIV. And we find in the ordinance no other guides or standards for the board's exercise of this particular power.

We must conclude the ordinance confers upon the board virtually unlimited power, conditioned only upon receiving a report from the Fire Prevention Bureau and the health department unaccompanied by adequate guides or...