Ernst v. Johnson County, 93-723

• Decision Date: 19 October 1994
• Docket Number: No. 93-723,93-723
• Citation: 522 N.W.2d 599
• Parties: Louis ERNST, Ila Ernst and Vulcan Material Company, Appellees, v. JOHNSON COUNTY, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 599

522 N.W.2d 599

Louis ERNST, Ila Ernst and Vulcan Material Company, Appellees, v. JOHNSON COUNTY, Iowa, Appellant.

No. 93-723.

Supreme Court of Iowa.

Oct. 19, 1994.

Ann Lahey, Asst. County Atty., for appellant Johnson County.

David E. Brown of Hayek, Hayek & Brown, Iowa City, for intervenor-appellant J. George Swisher.

William L. Meardon of Meardon, Sueppel, Downer & Hayes, Iowa City, for appellees.

Considered by McGIVERIN, C.J., and LARSON, CARTER, SNELL, and ANDREASEN, JJ.

SNELL, Justice.

In this case, Johnson County together with J. George Swisher and Patrick O'Neil who intervened appeal a decision of the Johnson County District Court which held that Louis and Ila Ernst and Vulcan Material Company have established and continued a nonconforming use of a quarry near Iowa City. In this declaratory judgment action brought by the Ernsts and Vulcan, the district court held that as such they were not required to conform to conditional use permit provisions enacted by Johnson County in 1980. We affirm.

I. Factual Background

The quarry, known as the Ernst quarry, is located in Johnson County, northeast of Iowa City. Minnie F. Donovan originally owned the site and leased it to B.L. Anderson, Inc. The Ernsts purchased the quarry in 1969 and continued to lease it to B.L. Anderson. In 1988 Vulcan took over the lease. These leases provided that the lessees were to pay the owner a nominal consideration for the lease right and royalties on any materials sold.

At the time the Ernsts purchased the quarry in 1969, county ordinances zoned the site "A-1 agricultural." Prior to 1980, the zoning ordinances allowed for mining and mineral extraction in A-1 districts. In 1980, Johnson County amended its zoning ordinances to include section 8:1.34, "Conditional Use Permits." This section allows parties to mine and extract minerals in A-1 districts, but only if they acquire a conditional use permit or if they established the mining use of the land as an "existing use" prior to the enactment of the permit requirement. Section 8:1.34 further provides that if a party with an established existing use "voluntarily interrupts" the use for one year, the conditional use provisions must be satisfied.

Since at least 1953, the responsible parties have maintained all required quarrying permits and licenses. However, neither B.L. Anderson nor Vulcan have paid the Ernsts any royalties nor made any commercial sales since the Ernsts purchased the quarry. There has been no blasting or crushing of rock at the site since the mid-1960s when Interstate 80 was built. The quarry contains stockpiles left from previous mining activity and Ernst has removed a few truckloads of material from these stockpiles annually. Ernst has taken these materials for his private use and in 1974 donated rock to the Morse Community Center and to the county for road improvement projects. Ernst also sold quarry materials to Wilson's Apple Orchard in 1991.

In 1977, the Ernsts' son, Ronald, requested that Johnson County rezone approximately one acre of land west and adjacent to the quarry site from A-1 agricultural to suburban residential (RS). After the county rezoned the parcel, Ronald Ernst built a single-family residence for himself on the plot which is within 1000 feet of the quarry.

In 1987, Ronald Ernst sold his residence and one-acre plot to Tim Armbruster. In 1990 Armbruster sold the property to O'Neil who continues to reside at the location. In 1975, Swisher purchased thirty-three acres of real estate immediately south of the quarry and across the road from the Ernst property. He completed the construction of his residence on that site in early 1990.

In the spring of 1990, Vulcan notified the county that it intended to prepare the quarry for mineral extraction. Vulcan asserted that the quarry was an existing use at the time of enactment of the 1980 amendments and therefore the ordinances did not require it to conform to the conditional use requirements. In support of its stance, Vulcan presented documents to the county which indicated that all concerned parties had maintained required permits and licenses without interruption since the early 1960s. The county agreed that the conditional use provisions did not apply to the quarry and on June 4, 1990 the assistant county zoning administrator sent Vulcan a letter which stated that "everything seemed to be in order and your operation may continue." Following receipt of this letter, Vulcan began blasting to drain the quarry.

Despite the June 4 letter of approval, the county subsequently notified Vulcan that it intended to hold a "fact-finding" hearing on November 20, 1990 in order to determine whether the quarry was an existing use at the time of the conditional use amendments. Following the hearing, the county rendered a determination that the quarry had not maintained its status as an existing use due to a lack of commercial activity and notified Vulcan that it should cease operations and apply for a conditional use permit.

On March 5, 1991, Vulcan and Ernst commenced an action in Johnson County District Court seeking a declaratory judgment that the quarry has maintained its status as an existing use and therefore is not subject to the conditional use permit provisions.

The trial court in an excellent analysis of the quarrying business and the law applicable to its unique status agreed and held that the quarry constitutes an existing use which has been maintained without voluntary interruption since before the 1980 amendments. It therefore held that the plaintiffs could operate the quarry without applying for a conditional use permit.

II. Standard of Review

Whether the district court tried a declaratory judgment proceeding in equity or at law is determinative of our scope of review on appeal. Matter of Mount Pleasant Bank & Trust Co., 426 N.W.2d 126, 129 (Iowa 1988). If the case was tried in equity, our review is de novo. Bjork v. Dairyland Ins. Co., 174 N.W.2d 379, 382 (Iowa 1970). If the district court tried the case at law, our review is for correction of errors of law. Matter of Mount Pleasant, 426 N.W.2d at 129.

The pleadings, relief sought, and nature of the case ordinarily determine whether a declaratory judgment action is legal or equitable. Citizens Sav. Bank v. Sac City State Bank, 315 N.W.2d 20, 24 (Iowa 1982). However, we will review a case on appeal in the same manner in which the trial court considered it regardless of what these factors suggest. Id. Where there is uncertainty about the nature of a case, a litmus test we use in making this determination is whether the trial court ruled on evidentiary objections. Id. In addition, where the trial court labels its ruling a "decree," this is an indication it tried the matter in equity. Id.

In this case, the district court received evidence subject to objections and labeled its ruling a "decree." The relevant factors considered together indicate the court tried this matter in equity. Therefore, our scope of review is de novo.

III. Existing Use

Johnson County Zoning Ordinance section 8:1.34(G) provides:

Existing Uses: Existing uses designated in this article that have been established prior to the adoption of the Conditional Use Permit Requirements for said use shall be deemed an approved conditional use without permit. However, if said use is voluntarily interrupted for a period of one (1) year after the effective date of adoption of such requirements, then the re-establishment of said use shall conform to the provisions of this article.

(Emphasis added.) Pursuant to the conditional use requirements in the zoning ordinance, mining and mineral extraction would be restricted from being no closer than 1000 feet from any property zoned A-2, RS, RIA, RIB, R2, or R3A. Any modification from this condition would require a four-fifths vote of the board of supervisors. Two issues are of concern in applying this section: (1) did the Ernsts and lessees establish use of the site as a quarry prior to 1980; and (2) if they did establish such use, did they voluntarily interrupt the use for a span of one year following the enactment of the permit requirements?

A. Establishment of Use Prior to 1980

Although we give some deference to an administrative agency's interpretation of a statute it administers, final construction and interpretation of statutory law is a question of law for this court to decide. Good v. Iowa Civil Rights Comm'n, 368 N.W.2d 151, 155 (Iowa 1985). We construe zoning restrictions strictly in order to favor the free use of property and we will not extend such restrictions by implication or interpretation. Greenawalt v. Zoning Bd. of Adjustment of Davenport, 345 N.W.2d 537, 545 (Iowa 1984). We also will not construe zoning restrictions in such a way that they will be arbitrary or unreasonable and we will avoid an interpretation which would make them confiscatory. Jersild v. Sarcone, 260 Iowa 288, 293, 149 N.W.2d 179, 183 (1967).

A party asserting a nonconforming use carries the burden to establish the lawful and continued existence of the use by a preponderance of the evidence. City of JewellJunctionv.Cunningham,439N.W.2d183,186 (Iowa 1989). In order to determine whether a party established a nonconforming use we will look to "the realities of the business in question and the nature of its operations." County of Du Page v. Elmhurst-Chicago Stone Co., 18 Ill.2d 479, 165 N.E.2d 310, 313 (1960). An industrial use of land is that use in which members of the trade customarily or commonly engage. Durning v. Summerfield, 314 Ky. 318, 235 S.W.2d...