Incorporated City of Denison v. Clabaugh

• Decision Date: 17 June 1981
• Docket Number: No. 64709,64709
• Citation: 306 N.W.2d 748
• Parties: The INCORPORATED CITY OF DENISON, Iowa, Appellee, Cross-Appellant, v. Karen M. CLABAUGH and Larry D. Clabaugh, Appellants, Cross-Appellees.
• Court: Iowa Supreme Court

Page 748

306 N.W.2d 748

The INCORPORATED CITY OF DENISON, Iowa, Appellee, Cross-Appellant, v. Karen M. CLABAUGH and Larry D. Clabaugh, Appellants, Cross-Appellees.

No. 64709.

Supreme Court of Iowa.

June 17, 1981.

Rehearing Denied August 21, 1981.

Morris C. Hurd, Ida Grove, for appellants, cross-appellees.

Richard J. Vipond, Denison, and William F. Fanter, Des Moines, for appellee, cross-appellant.

Considered by LeGRAND, P. J., and McCORMICK, ALLBEE, McGIVERIN, and SCHULTZ, JJ.

SCHULTZ, Justice.

This equity action arose from the conversion of a house from a single-family to a two-family dwelling. The City of Denison claimed the builder, Larry D. Clabaugh, and the owner, Karen M. Clabaugh, violated the City's zoning ordinance by failing to comply with the setback requirements thereof. The trial court held for the City and issued a prohibitory injunction enjoining the Clabaughs from continuing construction but refused to grant a mandatory injunction to require the Clabaughs to abate nonconforming portions of the dwelling. Both parties appealed, and the court of appeals affirmed by operation of law.

Ordinance 717 of the City of Denison is a comprehensive zoning ordinance that was enacted in 1970. Section 1.12 of the ordinance allows nonconforming structures lawfully in existence on the effective date of the ordinance to continue unabated. The issues in this suit are founded on the validity, meaning, and application of an exception contained in section 1.12(2), which provides:

Should such structure be destroyed by any means to an extent of more than 50 percent of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this ordinance.

The Clabaughs assert the trial court erred: (1) in concluding that the term "replacement cost" is not unconstitutionally vague or unconstitutional as applied to them; (2) in finding that substantially more than fifty percent of the replacement cost of the house was destroyed; (3) in finding that the Clabaughs had abandoned the house and that the actions of the City of Denison did not constitute a taking of the Clabaughs' property; and (4) in ruling that the City was not equitably estopped from obtaining the prohibitory injunction. The City claims that the trial court erred in failing to issue a mandatory injunction requiring the Clabaughs to abate the zoning ordinance violation.

This action for injunctive relief was properly pled and tried in equity. See Sound Storm Enterprises, Inc. v. Keefe, 209 N.W.2d 560, 565 (Iowa 1973). Thus, our review is de novo. Freese Leasing, Inc. v. Union Trust & Savings Bank, 253 N.W.2d 921, 925 (Iowa 1977). In equity cases, especially when considering the credibility of the witnesses, this court gives weight to the fact findings of the trial court but is not bound by them. Iowa R.App.P. 14(f)(7). With the guidance of these principles, we find the following facts.

Larry and Karen Clabaugh purchased a corner lot containing an eighty-five-year-old, single-family dwelling in the City of Denison in July 1976 for $6250. With the intention of converting the house into a duplex, Larry obtained a building permit from the City, issued by Pat Stoll, City Building Inspector and Zoning Administrator. The lot was bordered by public streets on the south and west sides. The front of the house was seventeen feet from the south property line, and the west side of the house was ten feet from the west property line, which were not in conformity with the zoning ordinance's minimum setback requirements of twenty-five and fifteen feet respectively. Since the house was in existence on the effective date of the ordinance, however, it could remain in its nonconforming state, provided the conversion did not destroy the structure to the extent of more than fifty percent of its replacement cost.

In January 1977 Larry deeded the lot to his wife, Karen, for tax purposes. Some work on the duplex had already been done at that time, and work continued intermittently thereafter. On August 19, 1977, Larry was served with a letter from Pat Stoll's successor stating that the structure was in violation of section 1.12(2), ordering construction to cease, and ordering Larry to comply with the zoning ordinance within thirty days. Larry continued construction until he was charged with violating the zoning ordinance, a misdemeanor.

The City then brought this action, alleging that the Clabaughs were in violation of the setback requirements of the zoning ordinance. The City claimed the violation existed because the Clabaughs, in the process of converting the house to a duplex, had destroyed the original structure to an extent of more than fifty percent of its replacement cost. The trial court agreed and granted the City's request for a prohibitory injunction enjoining further construction but refused to grant a mandatory injunction to require compliance with the setback requirements by removal of portions of the building.

I. Constitutionality of the ordinance.

A. Vagueness. The Clabaughs allege that the term "replacement cost" contained in section 1.12(2) is unconstitutionally vague. In challenging the constitutionality of the ordinance, the Clabaughs have a heavy burden. A presumption of constitutionality exists which must be overcome by negating every reasonable basis on which the ordinance can be sustained. Board of Supervisors v. Department of Revenue, 263 N.W.2d 227, 235 (Iowa 1978); Iowa City v. Nolan, 239 N.W.2d 102, 103 (Iowa 1976).

A civil statute is unconstitutionally vague under the due process clause of the fourteenth amendment to the United States Constitution when its language does not convey a sufficiently definite warning of proscribed conduct, when measured by common understanding or practice. Arnett v. Kennedy, 416 U.S. 134, 159-60, 94 S.Ct. 1633, 1647, 40 L.Ed.2d 15, 36 (1974). Thus, when persons must necessarily guess at the meaning of a statute and its applicability, the statute is unconstitutionally vague. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926). However, "(a) statute is not vague when the meaning of the words used can be fairly ascertained by reference to similar statutes, other judicial determinations, reference to the common law, to the dictionary, or if the words themselves have a common and generally accepted meaning." State v. Donner, 243 N.W.2d 850, 853 (Iowa 1976).

In Ezell v. City of Pascagoula, 240 So.2d 700 (Miss.1970), a municipal zoning ordinance containing the term "replacement cost" was at issue. Without discussion, the Mississippi Supreme Court found no merit in the contention that the ordinance, which was substantially identical to the ordinance at issue here, was unconstitutional on due process grounds. Id. at 702.

We believe that under generally accepted usage and practice the term "replacement cost" establishes an ascertainable standard for determining when a structure will lose its status as a lawful nonconforming use. As used in section 1.12(2) "replacement cost" means simply the amount of money it would cost to replace the structure by restoring it to its former state of existence or condition. See Webster's Third New International Dictionary 1925 (unabridged 1966) (definition of replace). If a structure were totally destroyed, the replacement cost would be the cost of rebuilding that particular structure. If the structure were partially destroyed, the replacement cost would be the cost of restoring the part destroyed.

We conclude that the challenged portion of section 1.12(2) conveys a sufficiently definite warning of the conduct proscribed. The trial court did not err in holding that the term "replacement cost" is not unconstitutionally vague as the ordinance is applied.

B. As applied. The Clabaughs also maintain that section 1.12(2) is unconstitutional as applied to them. They claim that arbitrary administration of the ordinance violated their due process rights under the fourteenth amendment to the United States Constitution. They argue that the application for the building permit, which was prepared by Pat Stoll and signed by Larry, states that "50% of existing structure will be left." They also point out that when the City demanded that construction cease it reminded them of this statement on the application. The Clabaughs thus contend that they were misled into believing that they would be in compliance with section 1.12 if fifty percent of the existing structure were retained.

We find these arguments unpersuasive. Larry testified that he read section 1.12 twice when he applied for the building permit and took a copy of the ordinance home with him. He therefore had knowledge of the specific requirements of section 1.12(2). The notation in the application for the building permit appeared under the heading "Description of Work," and did not purport to establish the standard for compliance with section 1.12. Since the Clabaughs had actual knowledge of the requirements of section 1.12(2), their reliance on that notation is unjustified. The City did not apply the ordinance in an unreasonable, arbitrary, capricious, or discriminatory manner. See Business Ventures, Inc. v. Iowa City, 234 N.W.2d 376, 382 (Iowa 1975); Keller v. City of Council Bluffs, 246 Iowa 202, 209, 66 N.W.2d 113, 117 (1954); 8 E. McQuillin, The Law of Municipal Corporations § 25.138, at 409-10 (3d rev. ed. 1976). We therefore hold that section 1.12(2) was not unconstitutionally applied to the Clabaughs.

II. Finding of required destruction. The Clabaughs assert that the trial court erred in finding that substantially more than fifty percent of the replacement cost was destroyed. They first contend they did not destroy the structure but only remodeled it.

We do not agree that a structure cannot be destroyed in part when it is remodeled, repaired, or restored. Section 1.12(2) applies to nonconforming structures that have been ...