Hermann v. City of Des Moines

Decision Date24 July 1959
Docket NumberNo. 49753,49753
PartiesRobert L. HERMANN and Helen A. Hermann, Roy A. Utter and Geraldine M. Utter, Charles R. King and Edith A. King, Clarence O. Brown and Nara Virginia Brown, K. W. Buchanan and Ardyce P. Buchanan, Robert J. Harris and Gladys D. Harris, William E. Shepard and Helen E. Shepard, C. Z. Pollock and Lura Pollock, Emma M. McElfresh, Harold F. White and Rita M. White, Plaintiffs-Appellants, v. CITY OF DES MOINES, Iowa, and Fred Yeyer, Building Inspection Services Superintendent, Defendants-Appellees.
CourtIowa Supreme Court

Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellants.

Robert J. Spayde and Robert G. Allbee, Des Moines, for appellees.

Charles F. Wennerstrum, Des Moines, amicus curiae.

THOMPSON, Chief Justice.

We are here concerned with an attempt by the City of Des Moines to spot zone a portion of Lot 10, Chetwynd, a part of the city. The tract in question lies on the west side of West 34th street, in a block bounded on the north by Forest Avenue and on the south by University Avenue. On July 9, 1953, the City of Des Moines enacted its comprehensive zoning ordinance No. 5453. This ordinance placed all of the property in the block which includes the tract in controversy in Zone R-2, which means it was restricted to one and two family dwellings, except for some lots lying on the south and north lines of Forest and University Avenues, respectively. This ordinance is still in full force and effect, except that as to the part of Lot 10, Chetwynd, here involved, the city council on June 23, 1958, rezoned all of said Lot 10 except the west 200 feet thereof so as to place in it Zone R-3, known as a Multiple Residence district. The amendatory ordinance is No. 5926, and is the one under attack here.

The plaintiffs are resident taxpayers of the city residing on property owned by them on West 34th Street between Forest and University Avenues. They contend that the amendatory ordinance provides for illegal spot zoning, ask that it be so decreed, and that any action under it be enjoined. The trial court upheld the ordinance and dismissed plaintiffs' petition.

The case was tried upon a stipulation of facts, from which the following matters appear: the enactment of Ordinances Nos. 5453 and 5926; the character and use of the property on West 34th Street between Forest and University Avenues has remained unchanged since the passage of Ordinance No. 5453 except that Lot 8, Chetwynd, has become an illegal nonconforming use; the property rezoned by Ordinance No. 5926 is similar in character, adaptability, and use to the surrounding property and was used as a one family dwelling until after the passage of Ordinance No. 5926 and was suitable for such one family dwelling as well as for multiple dwelling; Exhibits B and C are zoning maps correctly showing the location of the tract involved and the surrounding properties and their use at the time of the enactments of the two ordinances, Nos. 5453 and 5926.

An examination of the zoning maps, Exhibits B and C, shows that Lot 10, Chetwynd, lies on the west side of West 34th Street, with that part of it which is rezoned facing the street. It is 87 feet in width and extends to the rear some 262 feet. The entire lot is 462 feet in length, but the rear 200 feet is not rezoned. Lot 11, Chetwynd, immediately south of Lot 10, is 72 feet wide, and Lot 12, next on the south, is 80 feet in width. Each of these lots is zoned R-2. On the south of Lot 12 is Lot 13, 160 feet in width, extending to University Avenue, which is zoned R-3 by Ordinance No. 5453. To the north of Lot 10 lie Lots 9 to 2 inclusive, and north of Lot 2 a tract 100 feet wide which is a part of Kraetsch Place, another addition to Des Moines; all of which are, by Ordinance No. 5453 zoned R-2. Lot 9 is 88 feet in width on West 34th Street; Lot 8, 89 feet; Lots 7 to 3 inclusive, each 62 feet; and Lot 2, 110 feet.

It thus appears that the effect of Ordinance No. 5926 is to make of Lot 10, except the rear 200 feet, an R-3 island entirely surrounded by R-2. The stipulation of facts shows that the property on West 34th Street between Forest and University has remained unchanged in character since the passage of Ordinance No. 5453, except that Lot 8 has become an illegal nonconforming use. Across 34th Street to the east the property is also zoned R-2. There are, however, seven lots fronting on West 34th Street which are legal nonconforming uses. This means that they were being used and occupied in their present status before and at the time of the enactment of Ordinance No. 5453.

I. The statement of facts indicates the proper decision in the case. Neither the able counsel for the defendants nor the distinguished advocate who appears as amicus curiae has pointed out to us any specific reasons why the public welfare will be promoted or the public health, safety, or morals benefited by the amendatory ordinance. They rely upon the thoroughly established proposition that the city council had a wide discretion and its actions in setting up zones are backed by a strong presumption of reasonableness and validity. This cannot be disputed. Zoning ordinances may be amended at any time conditions warrant, and the action of the zoning authorities will not be interfered with if the question is fairly debatable. Keller v. City of Council Bluffs, 246 Iowa 202, 207, 66 N.W.2d 113, 116, 51 A.L.R.2d 251, 257; Brackett v. City of Des Moines, 246 Iowa 249, 260, 67 N.W.2d 542, 547, 548. The same authorities hold that the burden is upon one asserting the invalidity of a zoning ordinance to show in what respects it is arbitrary, or capricious, or discriminatory.

But we think such proof appears here. Section 414.1 of the Code of 1958, I.C.A., empowers cities or towns to enforce zoning restrictions and regulations 'for the purpose of promoting the health, safety, morals, or the general welfare of the community * * *'. This measures the authority of the municipality to impose such restrictions and regulations. Something must appear from which it may fairly be deduced that the proposed zoning comes within the purview of the authorizing statute. We are unable to find anything in the rezoning of a part of Lot 10 which will in any way promote the public health, morals, safety or general welfare. It must be kept in mind that the comprehensive zoning ordinance, enacted in 1953, placed this lot in R-2, together with all territory immediately surrounding it. No reason appears, none is suggested, why this tract should now be singled out for removal of many of the restrictions originally placed upon it and which still affect the remainder of the property in the block. It is spot zoning; and while not all spot zoning is illegal per se, the courts look upon it with some disfavor. This, or course, arises from the nature of things. Properly, it is held that one property owner should not be favored over his neighbors in the absence of a good reason therefor. An analysis of the Keller case, supra, and the language used therein in stating the governing principles points the way to a proper decision in the instant action. In the Keller case the city council had rezoned three lots, parts of each of which were occupied by a large house, about fifty-five years old, four stories high, containing sixteen rooms, from 'A' residential to 'B' residential. This latter classification included use as a convalescent or nursing home. It appeared that the comprehensive zoning ordinance which placed these lots in 'A' residential had been enacted in 1927; the amendatory ordinance under attack was passed in 1949. But the property in question had never been used as a single family residence as required by 'A' residential since prior to the adoption of the comprehensive ordinance. It had been used as a medical clinic, apartments for from three to five families, a boarding and lodging house, and convalescent home. We referred to Section 414.3 of the Code, I.C.A. which requires that zoning regulations shall be made 'with a view to conserving the value of buildings and encouraging the most appropriate use of land * * *'. At page 210 of 246 Iowa, at page 118 of 66 N.W.2d, at page 259 of 51 A.L.R.2d.

It was then held that since the facts showed that the original ordinance relegated the property in question to a use for which it was unfit and almost if not entirely useless, the city council was within the exercise of its proper discretion in rezoning. The gist of the decision in the Keller case is found in these words: 'The spirit of a zoning ordinance is not violated nor is it inconsistent with a comprehensive zoning ordinance to grant a just and reasonable exception by amendment based upon the character and use of property not similar to other property in the district, but (which) is now and was distinguishable before the adoption of the comprehensive zoning ordinance.' 246 Iowa at page 210, 66 N.W.2d at page 118, 51 A.L.R.2d at pages 259, 260.

But the stipulation in the case now before us provides: 'That the property rezoned by Ordinance 5926 is similar in character, adaptability, and use to the surrounding property and was used as a one family dwelling until after the passage of Ordinance 5926 and was suitable for such one family dwelling as well as suitable for multiple dwelling.' It is at once apparent that the reasons given for upholding the exception in the Keller case do not obtain here. The tract rezoned by Ordinance No. 5926 is similar in all respects of use, character, and adaptability to the surrounding property; it is suitable for use as a one family dwelling and was so used at the time of the enactment of the amendatory ordinance. In this situation, language from the Keller case is appropriate. Thus, at pages 206 of 246 Iowa, at page 116 of 66 N.W.2d, at page 257 of 51 A.L.R.2d, is this statement: 'The rule generally stated is that a city council does not have the authority to amend a...

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