Dilley v. City of Des Moines

Decision Date17 November 1976
Docket NumberNo. 2--59152,2--59152
Citation247 N.W.2d 187
PartiesRobert D. DILLEY, Plaintiff-Appellant, v. The CITY OF DES MOINES, Iowa, et al., Defendants-Appellees, Thomas C. Fredregill, Intervenor-Appellee.
CourtIowa Supreme Court

Joseph Z. Marks and Kenneth D. Benhart, Des Moines, for plaintiff-appellant.

M. A. Iverson, City Solicitor, and Philip T. Riley, Corporation Counsel, Des Moines, for defendants-appellees.

John A. McClintock and Harry W. Haskins, of Hansen, Wheatcraft & McClintock, Des Moines, for intervenor-appellee.

Considered en banc.

REYNOLDSON, Justice.

This appeal, which we advanced out of its ordinary submission order, raises issues relating to the Des Moines Capitol Center Development Urban Renewal Plan.

Plaintiff Robert D. Dilley brought an equity action in Polk county district court against the city, its mayor and council members for judgment declaring the renewal plan illegal, for temporary injunction enjoining defendants from further implementing the plan, for accounting of funds alleged to have been unlawfully expended on the project, and for judgment for the city and against the individual defendants for the amount of funds found to be illegally spent. Thomas S. Fredregill intervened, alleging an interest in the case as a potential redeveloper of a portion of the area. Following a seven and one-half day trial, judgment was entered January 13, 1976 dismissing the petition. Upon plaintif's appeal, we affirm.

In 1973 the City of Des Moines had under consideration an urban renewal plan which included portions of the business district on both sides of the Des Moines River. June 18, 1973, Barton-Aschman Associates, Inc., a Chicago consulting firm, was retained to make a feasibility study and report.

This study encompassed a rectangular area comprising 67 blocks, approximately four blocks wide, which included the heart of the business district on the west and extended to the capitol grounds on the east. Barton-Aschman obtained relevant information from the plan and zoning department, city engineer, engineering bureau, traffic and transportation department, building department, and department of urban development. The study involved an exterior survey of all structures in the area and an interior-exterior inspection of 50 selected buildings.

This study was detailed in a subsequent written report which identified this area as slum or blighted under provisions of Chapter 403, The Code. The firm found 67 percent of the structures in the area to be deficient and 27 percent of the buildings either to be structurally substandard to a degree warranting clearance, or requiring clearance in order to effectively remove blighting influences. In addition, the study disclosed the area was characterized by environmental deficiencies, including storm sewer needs, incompatible uses and structures, congested streets, functionally and economically obsolete buildings, and small tracts in diverse ownership impeding sound private growth.

In conformance with the study Barton-Aschman fashioned a written urban renewal plan for the area, including an introduction, legal description of the area, objectives, land-use provisions, planning criteria, project proposals including acquisition, rehabilitation and conservation, underground utilities, redevelopers' requirements, land disposition supplements and a procedure for changes in the approved plan.

Following statutory procedures, the above plan was submitted to the Des Moines planning commission to insure that it conformed to the 1964 general plan for development of the municipality. It was presented to and approved by the urban renewal board which recommended it to the city council for approval.

July 23, 1973 the council adopted a resolution finding the 67-block urban renewal area to be a slum and blighted area in need of rehabilitation within the meaning of § 403.4 and § 403.17(8) and (9), The Code, 1973.

August 2, 1973, following hearing pursuant to published notice, the city council adopted the urban renewal plan by a unanimous roll call vote. The council intended to fund the project with $22,000,000 in general obligation bonds supported by tax increment financing pursuant to § 403.19, The Code.

August 13, 1973 the council passed the necessary § 403.19 ordinance to fix the valuation base of all property in the area as a prelude to using tax increment financing.

The proposal to issue the above bonds was approved by only 53 percent (instead of the required 60 percent) of those voting at a September 11, 1973 election. The proposition therefore failed.

In late 1973 or early 1974 intervenor Fredregill, a Des Moines developer, expressed interest in redevelopment a three-block area at the east end of the urban renewal area, to include a hotel complex. April 15, 1974 the city amended the initial plan to provide for the city's acquisition of this area and to effect a change in the uses permitted.

The city initiated the procedure required to issue $950,000 in general obligation bonds to provide funds for acquiring the three-block tract. This effort was abandoned, however, after a petition was filed to require an election. See § 408.2, The Code, 1973. Pursuant to alternatives outlined by the city manager, the council decided to finance the acquisition by use of funds then budgeted for other purposes.

An appraiser hired by the city reported the value of the property for acquisition to be $742,950 and for disposition to be $284,000.

June 17, 1974 the city approved offering the three-block area for sale, established a fair value of the parcel for uses in accordance with the amended plan, and set a July 18, 1974 deadline for submission of written proposals for development of the tract.

On July 18, 1974 intervenor Fredregill was the only party submitting a proposal. He appeared with his architect before the urban renewal board to supplement his written proposal, which contemplated construction of a hotel complex by Hometels of America.

Fredregill's proposal was taken under advisement by the board. After requiring several changes in the redeveloper's proposed lease with Hometels, it recommended approval of the proposal to the city council.

December 23, 1974 the council considered the board's report and recommendation and approved intervenor's proposal subject to the disposition of this litigation.

In this appeal plaintiff relies on five propositions for reversal which we consider in the divisions which follow. Our review, of course, is De novo in this equity action. Wilden Clinic, Inc. v. City of Des Moines, 229 N.W.2d 286, 289 (Iowa 1975).

I. Did the Des Moines City Council act arbitrarily, capriciously and unreasonable in declaring the 67 blocks a slum and blighted area within the meaning of § 403.4 and § 403.17(8), (9), The Code, 1973?

Plaintiff vigorously argues the area taken as a whole was not slum and blighted within the meaning of the statutes. Moreover, he asserts the inclusion of an 18-block section in the main business district was unnecessary for effective redevelopment of the overall area and was incorporated in the plan only for the purpose of securing for increment funding the tax base of buildings then under construction.

We consider these contentions against the backdrop of our prior decisions holding Chapter 403, The Code, to be a constitutional delegation of legislative power to municipalities to govern matters local in scope. Webster v. Realty Company v. City of Fort Dodge, 174 N.W.2d 413, 417--418 (Iowa 1970); see Richards v. City of Muscatine, 237 N.W.2d 48, 56 (Iowa 1974). We have said Chapter 403 grants new and unusual powers and permits sweeping and drastic municipal innovations. Webster Realty Company v. City of Fort Dodge, supra, 174 N.W.2d at 421; Wilson v. Iowa City, 165 N.W.2d 813, 823 (Iowa 1969).

Ordinances of a municipality are presumed to be reasonable, valid and constitutional. Cedar Rapids Human Rights Commission v. Cedar Rapids Community School District, 222 N.W.2d 391, 399 (Iowa 1974); Mason City of Zerble, 250 Iowa 102, 110, 93 N.W.2d 94, 98--99 (1958). And it is not for the judicial branch of government to pass upon the wisdom of a local law enacted by a municipal council. Henrichs v. Hildreth, 207 N.W.2d 805, 806 (Iowa 1973); Baird v. Webster City, 256 Iowa 1097, 1104, 130 N.W.2d 432, 436 (1964).

Plaintiff does not assert unconstitutionality on the issue treated in this division. Instead, he argues the city's determination of slum and blight and of the perimeters of the urban renewal area violated criteria specified in §§ 403.17(8) and (9), The Code. He concedes the city's determination stands unless it was arbitrary, capricious or unreasonable. Berman v. Parker, 348 U.S. 26, 34--35, 75 S.Ct. 98, 102--103, 99 L.Ed. 27, 38--39 (1954); Housing and Redevelopment Authority v. Coleman's Service, Inc., 281 Minn. 63, 66--67, 160 N.W.2d 266, 270 (1968); Urban v. Renewal Agency v. Iacometti, 79 Nev. 113, 118, 379 P.2d 466, 468 (1963); Runnels v. Staunton Redevelopment and Housing Authority, 207 Va. 407, 411, 149 S.E.2d 882, 885 (1966); 2 McQuillin, Municipal Corporations § 10.33 at 823--828 (rev. 3d ed 1966).

Plaintiff also concedes the well-settled rule it is the area as a whole which is controlling in making the determination of slum and blight. Berman v. Parker, supra; Crawford v. Redevelopment Authority, 418 Pa. 549, 555, 211 A.2d 866, 869 (1965); Bristol Redevelopment & Housing Authority v. Denton, 198 Va. 171, 178--179, 93 S.E.2d 288, 294 (1956). He recognizes an area can be slum and blighted though it contains sound structures with no deficiencies. Grubstein v. Urban Renewal Agency, 115 So.2d 745, 748 (Fla.1959); Lyons v. City of Camden, 52 N.J. 89, 97, 243 A.2d 817, 820--821 (1968); Crawford v. Redevelopment Authority, supra, 418 Pa. at 555, 211 A.2d at 869.

Plaintiff must carry the heavy burden imposed by the above rules in attacking the city's determination the area was blighted, without regard to the finding it...

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11 cases
  • State v. Wright
    • United States
    • Iowa Supreme Court
    • 18 Junio 2021
    ...from members of our court, "we do not consider issues raised for the first time in oral argument." Dilley v. City of Des Moines , 247 N.W.2d 187, 195 (Iowa 1976) (en banc); see also Principal Mut. Life Ins. v. Charter Barclay Hosp., Inc. , 81 F.3d 53, 56 (7th Cir. 1996) (noting that it "wou......
  • King v. State
    • United States
    • Iowa Supreme Court
    • 24 Mayo 2012
    ...appellant, by contrast, must file a brief and is limited to the issues raised in that brief. See id. r. 6.903(2); Dilley v. City of Des Moines, 247 N.W.2d 187, 195 (Iowa 1976) (citing cases). Of course, we may choose to consider only grounds for affirmance raised in the appellee's brief, bu......
  • State v. Warren
    • United States
    • Iowa Supreme Court
    • 5 Marzo 2021
    ...exception because we do not decide or consider arguments raised for the first time during oral argument. Dilley v. City of Des Moines , 247 N.W.2d 187, 195 (Iowa 1976) (en banc). It would be especially unfair to do so in this case because the State has the burden to prove the community care......
  • Fults v. City of Coralville, 02-1857.
    • United States
    • Iowa Supreme Court
    • 11 Junio 2003
    ...burden of showing the city's designation of this urban renewal area was arbitrary, unreasonable, or capricious. Dilley v. City of Des Moines, 247 N.W.2d 187, 190 (Iowa 1976). As we have said before, it is critical to examine the nature of the city council's action to determine whether the c......
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