Greenawalt v. Zoning Bd. of Adjustment of City of Davenport

Citation345 N.W.2d 537
Decision Date15 February 1984
Docket NumberNo. 83-440,83-440
PartiesMonte H. GREENAWALT, Appellant, v. ZONING BOARD OF ADJUSTMENT OF the CITY OF DAVENPORT, Iowa; and Albert Zimmerman, Louis Soenke, Edward Waite, Ira Kaiser, and Joseph Tomlinson, Members of Board of Adjustment, Appellees. John E. and Beverly A. Sinning, Intervenors.
CourtUnited States State Supreme Court of Iowa

Walter Newport and Stephen P. Wing of Walter Newport & Associates, Davenport, for appellant.

Michael J. Meloy, City Atty., for appellees board and its members.

Robert V.P. Waterman of Lane & Waterman, Davenport, for intervenors.



This appeal involves a decision by the zoning board of adjustment of Davenport, Iowa (board), denying an application for a variance from an ordinance limiting the height of front-yard fences to forty-two inches. Monte H. Greenawalt applied for a variance for the purpose of constructing a fence six feet in height.

The property for which the variance was requested is a three and one-half acre parcel known as "Oak Knoll", a residence located in an old and exclusive Davenport neighborhood. The surrounding area is hilly and wooded, and the lots are typically quite large; Oak Knoll is among the largest. The house itself sits in a park-like setting on a hill overlooking the Mississippi River. See accompanying rough sketch.

Greenawalt purchased Oak Knoll in 1978. He remodeled and restored the property. In 1980 he contracted to have a six-foot fence constructed on the boundary of the property at a cost of nearly $25,000. Part of the fence was to be wrought iron and the remainder was to be chain-link. He made the decision to enclose his property after several incidents of vandalism and after receiving the following letter from his insurance company:


Lately we have witnessed a high incidence of vandalism and burglary under homeowners policies with higher valued homes and relative to silverware and jewelry losses.

With this in mind I recommend and advise that your dwelling be equipped with interior and exterior alarms. In addition to this, I suggest a perimeter fence with a locking iron gate to the driveway. The fence should be high enough to dissuade the amateur.

Several of our Carriers have already sent notices and advised that higher valued homes must have these protection systems or they will decline to renew policies. I expect this trend to continue as long as the gold and silver markets fluctuate as they have in the past.

If you have any questions, please advise.

While discussing his fencing plans with a neighbor, John Sinning, Greenawalt learned that a city zoning ordinance limits front yard fences to a maximum height of forty-two inches. Part of that ordinance reads as follows: "In no case shall a fence be erected to a height exceeding forty-two inches in a front yard." Davenport, Iowa, Ordinances, ch. 42, art. XXII, § 42-99(2)(c) (1973).

Before beginning construction of the fence, Greenawalt contacted the Davenport building department to ascertain whether he could legally build it. He made three such contacts and each time was told the fence would be legal and a building permit would not be necessary. When the fence was nearly ninety percent installed, he received a notice from the city stating that it was illegal.

Greenawalt stopped construction and applied for a variance. After two hearings the board of adjustment denied the application. In doing so, the board also decided that because of the peculiar shape of the property, Greenawalt had three front yards. The practical effect was that most of the property was front yard, and that most of the fence thus violated the ordinance.

After his application for a variance was denied, Greenawalt obtained a writ of certiorari from district court pursuant to section 414.15 of the Iowa Code (1979). Following trial, the court annulled the writ. This appeal by Greenawalt followed.

I. Scope of review. The district court's findings of fact have the effect of a special jury verdict, and an appeal to this court is like that in an ordinary proceeding. Graziano v. Zoning Board of Adjustment, 323 N.W.2d 233, 236-37 (Iowa 1982); Grandview Baptist Church v. Zoning Board of Adjustment, 301 N.W.2d 704, 706-07 (Iowa 1981); Weldon v. Zoning Board of Adjustment, 250 N.W.2d 396, 401 (Iowa 1977); Iowa R.Civ.P. 318.

II. Legality of board's decision. Greenawalt initially claims that the denial of his application for a variance was arbitrary, capricious, and unreasonable, and therefore invalid.

In resolving this claim, we first examine the background and purpose of a zoning variance. A variance is generally defined as "an authorization for the construction or maintenance of a use of land, which is prohibited by a zoning ordinance." 3 Anderson,American Law of Zoning § 18.02, at 136 (1968) (hereinafter Anderson). It is " 'designed as an escape hatch from the literal terms of the ordinance which, if strictly applied, would deny a property owner all beneficial use of his land and thus amount to a confiscation.' ' Id. at 137 (quoting Lincourt v. Zoning Board of Review, 98 R.I. 305, 310, 201 A.2d 482, 485 (1964)). Thus a variance is intended to strike a balance: on the one hand, it avoids constitutional challenges in instances where strict application would amount to an unconstitutional taking, while on the other hand, it is not a tool to be "so misused as to injure property owners and destroy the community plan." 3 Anderson § 18.16, at 170. As stated in People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N.Y. 280, 290, 155 N.E. 575, 578 (1927), "There has been confided to the Board a delicate jurisdiction and one easily abused."

In Iowa a board of adjustment has power to authorize

such variance from the terms of [an] ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

Iowa Code § 414.12(3) (emphasis added).

This court initially gave content to the standard of "unnecessary hardship" in Deardorf v. Zoning Board of Adjustment, 254 Iowa 380, 118 N.W.2d 78 (1962). It adopted the definition of that term constructed by the New York Court of Appeals in Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851 (1939), reh'g denied, 282 N.Y. 681, 26 N.E.2d 811 (1940). We have since reaffirmed that definition in Board of Adjustment v. Ruble, 193 N.W.2d 497 (Iowa 1972), and Graziano v. Board of Adjustment, 323 N.W.2d 233 (Iowa 1982). Under these decisions an applicant for a zoning variance establishes unnecessary hardship by showing all of the following elements:

(1) [T]he land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;

(2) [T]he 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) [T]he use to be authorized by the variance will not alter the essential character of the locality.

Graziano, 323 N.W.2d at 236; Ruble, 193 N.W.2d at 504; Deardorf, 254 Iowa at 386, 118 N.W.2d at 81. The City of Davenport has adopted the same definition. Davenport, Iowa, Ordinances, ch. 42, art. XXVII, § 42-120(4) (1973).

The burden is on the applicant to show all three of the elements. A failure to demonstrate one of them requires the board to deny the application. Ruble, 193 N.W.2d at 502; Deardorf, 254 Iowa at 384, 118 N.W.2d at 80. On the other hand, if the applicant carries his burden regarding each element he is to be granted a variance and failure to grant it renders board action arbitrary, capricious, and unreasonable. In this case the board found that Greenawalt did not establish any of the three elements and the district court affirmed. We turn to the record to ascertain whether substantial evidence supports the holding of the district court as to at least one of the three essential elements. Greenawalt's burden is particularly heavy, as he bears the burden of proof as to those elements.

A. Reasonable return. Greenawalt claims his property cannot yield "a reasonable return" unless the requested variance is granted because, without a six-foot fence, (1) he will suffer adverse economic impact due to vandalism and inability to obtain insurance and (2) he will not be able to enjoy his property peacefully.

We considered the element of a "reasonable return" in Graziano, 323 N.W.2d at 237. Graziano sought a variance so he could construct a duplex on a lot large enough under the ordinance to accommodate only a single-family dwelling. We said: "[T]he legal standard is not that more profit could be made if a variance is granted. The standard is that a reasonable return could not be garnered from a permitted use." Id. (emphasis added). We upheld denial of the application.

An explanation of the meaning of "cannot yield a reasonable return" is set forth in 3 Anderson § 18.17, at 179-83 (emphasis added):

A zoning regulation imposes unnecessary hardship if property to which it applies cannot yield a reasonable return from any permitted use. Lack of a reasonable return may be shown by proof that the owner has been deprived of all beneficial use of his land. All beneficial use is said to have been lost where the land is not suitable for any use permitted by the zoning ordinance. For example, where land is located in a district limited to residential or commercial use, and where lack of transportation, sparse development, and the refusal of lending institutions to advance money for residential or commercial uses render development consistent with the ordinance unfeasible, unnecessary hardship is said to result from literal application of the ordinance.


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