Granger v. Board of Adjustment of City of Des Moines, 47656

• Decision Date: 17 October 1950
• Docket Number: No. 47656,47656
• Citation: 44 N.W.2d 399,241 Iowa 1356
• Parties: GRANGER v. BOARD OF ADJUSTMENT OF CITY OF DES MOINES (WILLIAMS et al., Intervenors).
• Court: Iowa Supreme Court

Page 399

44 N.W.2d 399

241 Iowa 1356

GRANGER v. BOARD OF ADJUSTMENT OF CITY OF DES MOINES (WILLIAMS et al., Intervenors).

No. 47656.

Supreme Court of Iowa.

Oct. 17, 1950.

Rehearing Denied Dec. 18, 1950.

Hall, Galloway & Swanson, Des Moines, for plaintiff-appellant.

S. L. Harvey, Des Moines, for defendant-appellee.

Putnam, Putnam & Putnam, Des Moines, for intervenors-appellees Williams and others.

Bump & Bump, Des Moines, for intervenor-appellee Central Nat. Bank & Trust Co.

HAYS, Justice.

Intervenors Roger F. and Corene Williams and Williams-Wilbert Vault Works own and occupy a building located on lots 283, 289 and 290, Watrous Park, Plat 2, Des Moines, Iowa, which they have used since 1937 for the manufacture of burial vaults. Plaintiff W. H. Granger owns a residence located on lot 280, same Addition. Intervenor Central National Bank & Trust Company, trustee, holds a mortgage on the Williams property.

Under the Des Moines Zoning Ordinance, which became effective in 1939, lot 283 is zoned for residential use, while lots 289 and 290 are zoned for commercial uses. In March 1948 the City building inspector issued a building permit to the intervenors Williams and Williams-Wilbert Vault Works for certain repairs to the said building. Objections were made by plaintiff, and others, to the issuance thereof and an appeal was taken to the Board of Adjustment, defendant herein. The permit was approved by the Board and the matter was taken to the Polk District Court on a writ of certiorari, where the writ was annulled. Plaintiff appeals. Hereinafter the term appellees refers to the intervenors Williams and Williams-Wilbert Vault Works, unless otherwise designated.

The material facts are not in dispute. Appellees' building, which has been in existance for many years, is of brick and frame construction and has through the years, been used for various purposes. Appellees rented the building in 1937 and purchased same in 1942. In March 1948, appellees filed an application with the building inspector for permission to make repairs on the building, specifically, to replace a portion of the walls, 50 feet on the south and 88 feet on the east, and a part of the roof, with concrete blocks and steel. The permit was issued and work was immediately commenced. During an inspection tour by the building inspector, a further portion of the wall was found to be unsafe, and to constitute a hazard, and on instructions from the inspector the east wall was replaced for a distance of 80 feet and the south wall, for 106 feet. The new wall is approximately 5 feet higher than the old, to form a false front. There was no change in the building area, on the ground, nor of the square foot capacity of the building.

Under the provisions of the zoning ordinance, the building did not conform to the area, height or use regulations, applicable to that particular district, before the issuance of the permit and likewise did not conform after the repairs were made, or to be made. It is, however, conceded by all parties that the building is classified as a 'non-conforming use'.

Appellant's assigned errors may be placed in two groups: (1) The trial court erred in finding, (a) a substantial compliance with the law in making application for the permit; and (b) that the authorized work was not a violation of the zoning regulations. (2) The trial court erred in reception of testimony as to the value of the work done, at the time of the hearing.

While under Section 414.18, Code 1946, I.C.A., the hearing in the trial court was de novo, under Rules 318 and 334, R.C.P., the hearing before this court is as in ordinary actions, on assigned errors, with the finding of the trial court having the force of a verdict. Remey v. Board of Equalization, 80 Iowa 470, 45 N.W. 899; Anderson v. Jester, 206 Iowa 452, 221 N.W. 354.

Section 26-6, Des Moines Municipal Code, 1942, requires that a permit be obtained from the City building inspector before any building may be done in the City, whether it be new or repair work. It provides that a written application be made which shall describe the contemplated work; the use of the building; the location of the building on the premises and that there shall be attached thereto, certified plans and specifications of the proposed work.

I. Appellant contends that these requirements are conditions precedent to the issuance of the permit and must be strictly adhered to. The record shows that a written application was made, stating that the building, giving the City address was owned by the Williams-Wilbert Vaults. That the proposed work was the repair of 36' by 88' of the walls and part of the roof. Attached thereto was a rough sketch of the building. The use of the building and its location on the premises, was not given. It further appears from the record, that shortly after the permit was issued certified plans were made and filed with the inspector. That the location of the building, on the premises, and the use to which it was being placed was well known to him and that he visited the premises at the time, or shortly after, the permit was issued. The trial court found that there had been a substantial compliance with the requirements of Section 26-6, supra, and that the inspector had not abused his discretion in granting the permit, nor the Board in approving the same. The record amply sustains such findings and we find no merit to this claimed error.

The Zoning Ordinance, adopted under authority of Chapter 414, Code 1946, I.C.A., became effective in accordance with the provisions of Chapter 270, Acts 48th G.A., Section 2 of which states: 'The provisions of this act shall not affect or apply to any use to which any real estate was lawfully devoted prior to the effective date hereof and such use may be continued hereafter.'

Section 2A-8, Municipal Code, 1942, Non-Conforming Uses, states: 'The lawful use of land existing at the time of the passage of this Ordinance, though such use does not conform to the provisions hereof, may be continued, but if such non-conforming use is discontinued, any future use of said premises shall be in conformity with the provisions of this ordinance. The lawful use of a building existing at the time of the passage of this ordinance, may be continued, although such use does not conform with the provisions hereof, and such use may be extended throughout the building, provided no structural alterations, except those required by law or ordinance, are made therein. If no structural alterations are made, a non-conforming use of a building may be changed to another non-conforming use of the same or more restricted classification. * * *' (Italics added). Section 2A-9 thereof, provides in part: 'Except as hereinafter provided no building shall be erected, reconstructed, or structurally altered except in conformity with the regulations herein established for the height and area district in which such building is located'.

II. Appellant contends that the trial court erred in finding that the authorized work was not in violation of the provisions of the zoning ordinance, set forth above. Our determination of the meaning of the words 'structural alteration', as used in Section 2A-8, together with its intended application, is determinative of this question. This exact question has not been before this Court heretofore but has been considered in other jurisdictions in connection with zoning ordinances very similar to the instant one.

It is appellant's claim that the authorized work constitutes a 'structural alteration' as contemplated by the ordinance and that since the said work does not conform to the regulations as required by Section 2A-9, as to area,...