Gannett v. Cook

• Decision Date: 15 December 1953
• Docket Number: No. 48379,48379
• Citation: 61 N.W.2d 703,245 Iowa 750
• Parties: GANNETT et al. v. COOK et al.
• Court: Iowa Supreme Court

Page 703

61 N.W.2d 703

245 Iowa 750

GANNETT et al. v. COOK et al.

No. 48379.

Supreme Court of Iowa.

Dec. 15, 1953.

Robert D. Wells, William W. Brubaker, Edward N. Wehr, Davenport, for appellants.

Charles G. Rehling, Scott County Atty., Davenport, for defendant-appellees.

Betty, Betty, Newman, Heninger & Van Der Kamp, and Howard Eckerman, Davenport, for intervenor-appellees.

MULRONEY, Justice.

This is an appeal from a decision in a case arising under the county zoning law or Chapter 358A, Code 1950, I.C.A. This law, which was enacted in 1947, has not been involved in any prior appeal to this court. Before stating the facts of this case we think it desirable to give a brief resume of the law involved.

The county zoning law is a grant of power to the board of supervisors of any county of not less than 60,000 inhabitants, to adopt regulations or ordinances applicable to lands located within the county but lying outside the corporate limits of any city or town, restricting said areas as to industrial and commercial use and as to the buildings and structures that can be erected. Section 358A.3 provides that the county's restrictive regulations 'shall [not] become effective until approved by a majority, in number and amount of assessment, of the resident real property taxpayers owning real property in the area or district in which such restriction is to be imposed, either (1) at an election held for that purpose, or (2) by their signing an appropriate document indicating their approval.'

Other provisions of the act provide that the board shall appoint a zoning commission, to recommend the boundaries of the various districts and appropriate regulations and restrictions, and the board is required to hold public hearings on said recommendations. An administrative officer is to be appointed to enforce the ordinances, Section 358A.9, and a Board of Adjustment is to be appointed, Section 358A.10, which is to hear the petition of any property owner aggrieved by the action of the board of supervisors in the adoption of the regulations and restrictions.

It is further provided in Section 358A.13 that 'appeals to the board of adjustment may be taken by any person aggrieved * * * by any decision of the administrative officer.' Persons aggrieved by the decision of the board of adjustment may file a verified petition in a court of record setting forth that such decision is illegal in whole or in part and the court may allow a writ of certiorari directed to the board of adjustment, Sections 358A.18 and 358A.19. The board's return shall set forth original or sworn copies of such portions of the record as called for by the writ and Section 358A.20 provides 'the return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from'. Section 358A.21 provides the hearing in the court shall be de novo and the court may take evidence at this hearing or appoint a referee to take such evidence as it may direct and the court 'may reverse or affirm, wholly or partly, or may modify the decision brought up for review,' providing however no costs shall be allowed against the board unless 'it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.'

Pursuant to the grant of power in the above county zoning law the Scott County Board of Supervisors in 1949 adopted a zoning ordinance which divided the county into various districts and the residents in any particular district could adopt the type of zoning provided in the ordinance for that district by compliance with the provisions of (1) or (2) in Section 358A.3 previously quoted. Section XXV of the ordinance provided as follows: 'Such 'restrictions' shall be deemed in effect as of the time of filing a proper instrument in the office of the Recorder of Scott County showing such approval by the majority of said resident real property taxpayers in the manner provided by State law. For the purpose of this section the filing stamp of the Recorder on said instrument showing the time of filing shall be conclusive evidence as to the time of such filing.'

The ordinance contained certain area and width restrictions but one section of the ordinance provided these restrictions would not apply to 'any lot of record' at the time of the passage of the ordinance. There is no dispute in the facts in this case. On October 14, 1952 at 8:15 A.M. a plat of certain land located in School District No. 4 in Davenport Township (zoned as Erural in the ordinance) called Ridgeview Park, was filed for record in the office of the Recorder of Scott County, Iowa. The plat divided much of the area into lots 60' X 100' and 157' X 100'.

The record shows that Fred J. Keppy and Alta Keppy were the owners of all of the land in the platted area. The owners of the land in this school district had taken no action under the zoning ordinance and the record shows there were 115 real property taxpayers in the district and the total assessment of the realty was $169,410. Ten minutes after the plat was filed for record, there was filed with the recorder an appropriate document of approval of the zoning ordinance bearing approximately 90 signatures of taxpayers owning property in the district of the assessed value of $131,922. No question is raised as to the sufficiency of this instrument to indicate the required approval of a majority in number and amount of assessment of the taxpayers owning real property in the school district.

The board of supervisors had appointed the county engineer as the administrative officer and on October 16th he received the application of the Anchor Homes Housing Development for building permits to be issued generally in the name of Mr. Keppy to build homes on the lots in the platted area. On October 20, 1952 the administrative officer granted the building permits and the residents in the school district who had signed the approval of zoning appealed to the board of adjustment. Hearing was had before the board and at this hearing the parties designated as intervenors here, who had a kindred interest in obtaining the building permits, were arrayed against those who had signed the instrument designated 'Approval of Scott County Zoning.' We will keep the designations of 'signers' and 'intervenors' and now state the issues between them. The building permits would allow the building of dwellings on land areas that were much smaller than allowed by the zoning ordinance so the permitted buildings on smaller lots in the platted area would violate the ordinance unless the lots were exempt from the restriction by being 'lots of record' at the time of the passage of the ordinance.

The signers contended (1), the ordinance became effective when the instrument of approval was signed by the requisite number--admittedly the day before it was filed for record and, (2), the plat did not constitute lots of record at the time of the passage of the zoning ordinance. The board of adjustment held against these contentions and the signers sought and obtained a writ of certiorari to the district court. No evidence was introduced in the district court and on January 23, 1953 the district court by its judgment and decree sustained the decision of the board of adjustment. The signers appeal, making the same contentions urged before the board, and we understand the intervenors are the appellees.

I. The first contention of the signers that the zoning ordinance took effect when signed by the requisite number of residents, is in effect an argument that the ordinance requirement in Sec. XXV that the approval instrument would be 'deemed in effect as of the time of filing * * * in the office of the Recorder' is in contravention of the state statute. The statute, 358A.3, Code 1950, I.C.A., is a prohibiting measure since it provides 'no restriction * * * shall become effective until approved by a majority * * * by their signing an appropriate document indicating their approval.' An ordinance that provides the approval instrument shall be both signed by the majority and filed for record before it becomes effective is not in contravention of the statute. It cannot be said the ordinance requiring majority signatures plus the filing for record before restrictions become effective, is in conflict with the statute forbidding restrictions from becoming effective until there are majority signatures. The ordinance can make additional, reasonable, and nondiscriminatory requirements so long as the statute does not prohibit the enlargement of the requirements stated in the statute.

The general rule as stated in 62 C.J.S., Municipal Corporations, § 143, page 293, is: '* * * a municipal regulation which is merely additional to that of the state law does not create a conflict therewith. Where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation may make such additional reasonable regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality. The fact that an ordinance enlarges on the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirements for all cases to its own prescriptions.' See also 37 Am.Jur., Municipal Corporations, § 165 and Western Pennsylvania Restaurant Ass'n v. City of Pittsburgh, 366 Pa. 374, 77 A.2d 616.

Although a county is distinguishable from a municipal corporation, it is treated the same in such legislation as is here involved and the same rules that would govern the legislative authority of a municipal corporation under a zoning law would govern a county. The requirement of recordation was clearly not unreasonable. This was an instrument affecting real estate and it was important that the time of its going into effect be capable of exact determination.

II....