Deardorf v. Board of Adjustment of Planning and Zoning Commission of City of Fort Dodge

• Decision Date: 13 November 1962
• Docket Number: No. 50692,50692
• Citation: 118 N.W.2d 78,254 Iowa 380
• Parties: John C. DEARDORF and Catherine V. Deardorf, Appellants, v. The BOARD OF ADJUSTMENT OF the PLANNING AND ZONING COMMISSION OF the CITY OF FORT DODGE, Appellee, Summit, Inc., Intervenor.
• Court: Iowa Supreme Court

Page 78

118 N.W.2d 78

254 Iowa 380

John C. DEARDORF and Catherine V. Deardorf, Appellants, v. The BOARD OF ADJUSTMENT OF the PLANNING AND ZONING COMMISSION OF the CITY OF FORT DODGE, Appellee Summit, Inc., Intervenor.

No. 50692.

Supreme Court of Iowa.

Nov. 13, 1962.

Rider, Bastian & Beisser, Fort Dodge, for appellants.

Donald J. Mitchell, Fort Dodge, for appellee.

Burnquist, Burnquist & Kersten, Fort Dodge, for intervenor-appellee.

GARFIELD, Chief Justice.

The appeal involves the legality of a variance from the zoning ordinance of the city of Fort Dodge granted by defendant board of adjustment to permit erection of an apartment building in an R3 'multifamily' district. The proposed building exceeds the maximum height the ordinance allows and violates its provisions as to yard width and lot area.

Plaintiffs own and occupy the residence across the street west of the proposed site. They brought certiorari to challenge legality of the board's grant of the variance. Following trial the district court annulled the writ. Plaintiffs have appealed.

In September, 1959, four Kersten brothers, their sister and Carl Tierney took title to the plot on which they desire to erect an apartment building in Fort Dodge. It is situated at the southeast corner of Third Avenue South (running east and west) and Tenth Street (running north and south). It is irregular but generally rectangular in shape, with a frontage on Third Avenue (South) of 169 feet and on Tenth of 152 feet.

The zoning ordinance took effect March 12, 1960. On September 12, 1961, Don Kersten filed with the city building inspector application for a permit to erect on the plot an apartment house, about 90 by 80 feet, seven stories high, at an estimated cost of $500,000. The inspector denied the permit because the ordinance fixes a maximum height of '3 stories or 45 ft.' for buildings in this district and the building would also violate the ordinance provisions as to yard width (20 feet between the building and front and rear lot lines) and lot area of not less than 1000 square feet per family. The building is to have 36 apartments for as many families. There are about 23,500 square feet in the lot.

'Don Kersten et al' appealed to defendant board of adjustment, herein called 'board,' from the inspector's denial of the permit and asked that a variance be granted. Plaintiffs and 15 other residents of the neighborhood filed objections. Five objectors were spouses, and two appear to be sisters, of other objectors. The board heard evidence offered mainly by objectors, reversed the inspector's decision and granted permission to erect the building. Plaintiffs then filed their petition in certiorari as permitted by section 414.15, Codes 1958, 1962, I.C.A.

I. Code section 414.18, I.C.A. provides: 'If upon the hearing which shall be tried de novo it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence * * * which shall constitute a part of the proceedings upon which the determination of the court shall be made.'

Pursuant to this statute the court took evidence in addition to that heard by the board which was contained in the return to the writ. The trial de novo section 414.18 permits should be confined to the questions of illegality raised by the petition for the writ. The statute does not provide for trial de novo by equitable proceedings nor that review in this court shall be de novo. Anderson v. Jester, 206 Iowa 452, 463-464, 221 N.W. 354; Schueller v. Board of Adjustment, 250 Iowa 706, 708-709, 95 N.W.2d 731, 733. Our review is on assigned errors, the trial court's findings of fact having the force of a jury verdict. Schueller case, supra, and citations.

II. The statutory authority upon which the board relies for the action it took is Code section 414.12, subd. 3, I.C.A. It provides the board shall have power: '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 * * * ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.'

Similar provisions are common in statutes and ordinances relating to zoning. Graves v. Johnson, 75 S.D. 261, 63 N.W.2d 341, 342-343; Annos. 58 A.L.R.2d 1083, 1102; 168 A.L.R. 13, 23-24; 101 C.J.S. Zoning § 288, pages 1059-1061; 58 Am.Jur., Zoning, § 199-202, pages 1048-50.

The power to permit variances which the zoning ordinance delegates to the board is less broad than that delegated by the state statute, supra. There can be little doubt that power conferred on the board by state statute may not be limited by city ordinance. Insofar as this ordinance conflicts with section 414.12, subd. 3, the statute controls. Mabank Corp. v. Board of Zoning Appeals, 143 Conn. 132, 120 A.2d 149, 150-151; St. Onge v. City of Concord, 95 N.H. 306, 63 A.2d 221, 222-223; 101 C.J.S. Zoning § 10; 58 Am.Jur., Zoning, § 7; 5 McQuillin Municipal Corporations, Third Ed., § 15.20, pages 96-99. See also Town of Randolph v. Gee, 199 Iowa 181, 201 N.W. 567.

III. The only assigned error we find it necessary to consider challenges the legality of the board's order granting the variance. Before it could be granted, the burden was on those applying for it to show that enforcement of the zoning ordinance or denial of the variance would result in 'unnecessary hardship' to them, as the term is used in Code section 414.12, subd. 3, I.C.A. Anno. 168 A.L.R. 13, 113; 8 McQuillin Municipal Corporations, Third Ed., § 25.167, pages 394-5; Yokley Zoning Law and Practice, Second Ed., § 138, page 335; Rhyne Municipal Law, § 32-21, page 877; 101 C.J.S. Zoning § 306, page 1088, and citations n. 92.

The board made no finding that denial of the variance would result in unnecessary hardship to the applicants, nor does its return to the writ of certiorari disclose any facts which would justify such a finding. Under a number of decisions, some of which are based on provisions of statute or ordinance, this in itself would be fatal to the board's order. Tireman-Joy-Chicago Improvement Ass'n v. Chernick, 361 Mich. 211, 105 N.W.2d 57, 61; People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N.Y. 280, 155 N.E. 575, 578; Anno. 168 A.L.R. 13, 117; Yokley Zoning Law and Practice, Second Ed., § 138, pages 338-9. See also Rhyne Municipal Law, § 32-22, pages 879-80.

We prefer not to rest our decision upon this ground which may be thought to be a narrow one. Our statute does not require the board to make findings of fact nor a record of the reasons for its action. Anderson v. Jester, supra, 206 Iowa 452, 460-461, 221 N.W. 354. Certainly, however, if there was no showing before the board of the requisite unnecessary hardship to the owners if a variance were denied, its order is illegal within the meaning of Code section 414.15, I.C.A. above referred to and aggrieved parties such as plaintiffs are entitled to have it annulled in this action. '* * * proceedings * * * unsupported by, facts on which power to act depends, or within which the power must be exercised, are illegal.' Anderson v. Jester, supra, 206 Iowa 452, 463, 221 N.W. 354, 359.

'Where there is no evidence of individual hardship, the board is without authority to grant a variance, and where it does so, its action will be set aside by the court.' Yokley, Second Ed., § 138, page 339.

It is doubtless true, as the board contends and the trial court held, the burden rested upon plaintiffs in the certiorari action to show illegality of the board's order granting the variance. Libby v. Board of Zoning Appeals, 143 Conn. 46, 118 A.2d 894, 897; Jones v. DeVries, 326 Mich. 126, 40 N.W.2d 317, 321. Anno. 168 A.L.R. 13, 146; Rhyne Municipal Law, § 32-22, page 886; 101 C.J.S. Zoning § 363b, pages 1207-1208.

We think plaintiffs discharged this burden. A complete record was made of the hearing before the board which resulted in the order of variance. This record was before the trial court and is before us. We find in it no evidence to support a finding that enforcement of the ordinance would result in unnecessary hardship to the applicants for the variance. Nor do we find any such evidence was taken in the trial court. Nor did the court make any finding unnecessary hardship would result from refusal to grant the variance.

IV. No Iowa decision defining the term 'unnecessary hardship' has come to our attention. Definitions found in outside opinions differ in the language used, but not greatly in the essential meaning of the term. Perhaps the most precise definition we have found is that adopted in several New York cases. They hold that before a variance may be granted on the ground of unnecessary hardship it must be shown: (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) the use to be authorized by the variance will not alter the essential character of the locality. Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851, 853; Taxpayers Ass'n of South East Oceanside v. Board of Zoning Appeals, 301 N.Y. 215, 93 N.E.2d 645, 646, and citations.

East Chicago, Indiana v. Sinclair Refining Co., 232 Ind. 295, 111 N.E.2d 459, 465, approves the three requisites of unnecessary hardship found in the New York cases. Tireman-Joy-Chicago Improvement Ass'n v. Chernick, supra, 361 Mich. 211, 105 N.W.2d 57, 61, takes note of them. Also several textwriters, apparently with approval. 8 McQuillin, Third Ed., § 25.169, page 403; 1 Metzenbaum Law of Zoning, Second Ed., Ch. IX-f-1, page 769; Yokley, Second Ed., § 138, pages 336-7. See also Bassett Zoning, pages 168-9; Rhyne Municipal Law, § 32-19, pages 860-62. The Grand Rapids...