Jersild v. Sarcone, 52143

Decision Date07 March 1967
Docket NumberNo. 52143,52143
Citation260 Iowa 288,149 N.W.2d 179
PartiesArthur L. JERSILD et al., Appellees, v. James V. SARCONE, Zoning Administrator, Polk County, Iowa, and Eugene R. Severs, d/b/a MacMillan Oil Company, Appellants.
CourtIowa Supreme Court

Chris Becker, Asst. County Atty., Des Moines, for appellant, James V. sarcone.

McWilliams & Gross, Des Moines, for appellant, Eugene R. Severs.

Stewart, Miller, Wimer, Brennan & Joyce, Des Moines, for appellees.

LARSON, Justice.

This appeal involves the legality of a building permit issued by the Polk County zoning administrator to defendant Eugene R. Severs, d/b/a MacMillan Oil Company, hereinafter referred to as Severs, to erect five storage tanks upon an unplatted narrow strip of land leased from the Inter-Urban Railway Company in a light industrial district (M-1) zone.

When the board of adjustment, hereafter called the board, sustained the administrator's action, plaintiffs brought certiorari in the district court under the provisions of chapter 358A, Code of Iowa 1962, contending as a matter of law that the application and issuance of Certificate No. 2334 do not comply with the requirements of the county zoning ordinance. Some of the plaintiffs are owners of property across the street to the south in a multi-family residence district (R-3) zone. Pursuant to the trial court's order annulling the permit, defendant Severs and the county zoning administrator appeal.

Appellees rely principally upon two grounds to sustain the court's judgment. Both relate to the setback requirements of the Polk County zoning ordinance, appellants' 'Exhibit 2' herein.

Appellants contend those requirements were met, that as a matter of law the court misconstrued the provisions of the ordinance in holding they require a corner lot owner to consider the frontage on either of two abutting streets the principal frontage, that the district boundary line was the north line of Hancock Avenue, and that the required side yard setback was not shown.

It appears Severs owns and operates an oil business on a tract of land extending eastward from Second Avenue along the Inter-Urban railroad tracks in the NW 1/4 of Section 23--79--24, West of the 5th P.M., in Polk County, Iowa, that he leased from the railroad a strip of adjacent land eastward over 300 feet long and 34 feet wide, described as follows: The North 25 feet of the NW 1/4 of the SW 1/4 of the NW 1/4 and the South 25 feet of the SW 1/4 of the NW 1/4 of the NW 1/4 of Section 23, Township 79, Range 24, West of the 5th P.M.; that Hancock Avenue, a county road 30 feet wide, runs east and west along the south side of this tract and dead-ends near the west end of the leased land. Some 300 feet east of the dead-end, Hancock intersects Oxford Street, a north and south street. Oxford Street apparently extends north of this intersection abutting the east end of the leased tract and then turns eastward along the spur track servicing the MacMillan Oil Company. For visual aid in comprehending this situation, we set forth a rough sketch of the area.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Zone M-1, Article 14, requires a front yard depth of 50 feet, a rear yard depth of 40 feet and, unless the area is adjacent to a residence or 'R' zone, no side lot setback. Severs' application, 'Exhibit A', filed June 18, 1964, showed a setback from Oxford Street to the first of five storage tanks to be erected of more than 50 feet, a rear yard of over 40 feet, and a side yard setback of about 31 feet from the center of Hancock Avenue. It also showed a three-foot strip extending about 200 feet east and west, north of Hancock, owned by one of the plaintiffs, Miss McSweyn, which he claimed would prevent his tract from abutting the R-3 zone to the south. Since the exact location of this strip was not established, this claim apparently was not considered.

After the permit was issued, plaintiffs appealed to the board of adjustment as provided in section 358A.13 of the code. Hearing was had before that body and it sustained the administrator's action, finding the front of the tract was on Oxford Street, that his front yard setback was sufficient, and that the side setback adjacent to an R-3 zone was properly determined from the center line of Hancock Avenue. Plaintiffs appealed by petition under the provisions of code section 358A.18, and the court allowed a writ of certiorari to the board for review of its action under the provisions of section 358A.19. No stay was ordered. Pursuant to trial under section 358A.21, judgment adverse to plaintiffs was rendered, but on a motion to reconsider, the court annulled the permit and we have this appeal. Although the district court review is de novo, ours is on assigned errors. Deardorf v. Board of Adjustment, 254 Iowa 380, 384, 118 N.W.2d 78.

I. The county zoning law, chapter 358A, Code of 1962, empowers counties, at the option of the board of supervisors, to adopt comprehensive zoning ordinances. The constitutionality of such statutes and ordinances enacted thereunder, like those in cities and towns, has been generally sustained, as a valid exercise of the police power, in the interest of public peace, order, morals, health, safety, convenience, and the general welfare. Upon this point there is no dispute, but in support of the proposition see Boardman v. Davis, 231 Iowa 1227, 1229, 3 N.W.2d 608, and citations; Deardorf v. Board of Adjustment, supra; Anderson v. Jester, 206 Iowa 452, 221 N.W. 354; McQuillin, Municipal Corporations (1965 Revised Edition), Vol. 8, Zoning, § 25.76.

In Boardman we pointed out that 'a zoning ordinance, which rests upon the police power of the state, may, and often does, lay an uncompensated burden upon some property owners. However, such requirements do not constitute an easement upon the property. Nor do they deprive the owner of his property as in the case of an appropriation by eminent domain for some specific public use. They are merely a restraint upon the owner's use of the property for the protection of the general well-being or in other words to prevent harm to the public. In determining the validity of the police regulation the prime consideration must be the general purpose and relationship of the ordinance and not the hardship of an individual case.' So, it is concluded setback provisions of an ordinance will not be held invalid unless they clearly appear to be arbitrary and unreasonable. Courts should, however, take care to construe them so that they will not be arbitrary or unreasonable, and if possible avoid an interpretation that would make them confiscatory. See Anderson v. Jester, supra; Boardman v. Davis, supra; and Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228, 53 A.L.R. 1210.

Although a zoning ordinance establishing building or setback lines is presumed to be valid and the burden to prove the line unreasonable is on the one asserting it, it is generally held that 'a zoning ordinance providing for building or setback lines must be reasonable, clear and unambiguous, uniform in operation and not unfairly discriminatory.' McQuillin, Municipal Corporations (1965 Revised Edition), Vol. 8, § 25.138, and authorities cited. It is undoubtedly true, as appellants herein contend, that the burden rests upon plaintiffs in certiorari to show the illegality of the zoning administrator and the board of adjustment's order granting the permit herein. Section 358A.21; Deardorf v. Board of Adjustment, supra, and citations. It is also true that when there is a serious question as to the reasonableness of the taking under police power, the ordinance will be construed so as to avoid virtual confiscation and unconstitutionality. In McQuillin it is stated at page 443 of Vol. 8, supra: 'Virtual confiscation occurs when the application of setback provisions to a lot reduces the usable surface to an absurdly small size,' with citations. State ex rel. Bollenbeck v. Village of Shorewood Hills, 237 Wis. 501, 297 N.W. 568.

II. Although there is a contention by appellants that there was insufficient evidence to support the trial court's finding of fact herein, there is really little or no dispute as to the basis facts upon which this decision must rest. The real issue is not whether the board action was arbitrary and capricious, but whether under the material facts its decision was legally correct. Actually it is the interpretation of the county zoning ordinance that was before the court, and evidence was taken which counsel thought would aid and enlighten the court as to its meaning. This is not a controversy involving the board's power to hear and pass on requests for exceptions and variances. Section 358A.15(2) and (3). Here there is no dispute as to the measurements, location of the property and the streets involved.

The construction of the ordinance before us, under the undisputed facts, is a question of law. Deardorf v. Board of Adjustment, supra. The application for a zoning certificate by Severs, in due form, asked a permit to erect five round storage tanks above ground for the storage of noninflammable products. The attached plat showed the first tank setback from Oxford Street, a distance of 78 feet, a setback of 29-plus feet from the center line of Hancock Street, and a 94-foot rear yard. Based upon this application, which showed the necessary front setback on Oxford Street and a street side yard setback of 29.3 feet from the center of Hancock Avenue, a permit was issued. Thus, our first question is whether the administrator and the board of adjustment on appeal were correct in concluding the tract abutment on Oxford Street selected by Severs as his front yard was permissible under the ordinance. The trial court thought it was not, but on this point we must disagree.

The trial court held that the ordinance requires Hancock Avenue be considered the front of this long narrow tract and based its conclusion apparently on the definition of 'frontage'...

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    ...applicability of the ordinance. VI. The next step of our inquiry focuses upon the effect of such ambiguity. In Jersild v. Sarcone, 260 Iowa 288, 296, 149 N.W.2d 179, 185 (1967), we said: '(T)he rule of strict construction of restrictions on the free use of property is applicable where the w......
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