Johnson v. Board of Adjustment, City of West Des Moines

• Decision Date: 17 March 1976
• Docket Number: No. 2-57317,2-57317
• Citation: 239 N.W.2d 873
• Parties: Odell JOHNSON, Jr., et al., Appellants, v. BOARD OF ADJUSTMENT, CITY OF WEST DES MOINES, Iowa, Appellee, McLaren Enterprises, Inc., et al., Intervenors-Appellees.
• Court: Iowa Supreme Court

Page 873

239 N.W.2d 873

92 A.L.R.3d 304

Odell JOHNSON, Jr., et al., Appellants, v. BOARD OF ADJUSTMENT, CITY OF WEST DES MOINES, Iowa, Appellee, McLaren Enterprises, Inc., et al., Intervenors-Appellees.

No. 2-57317.

Supreme Court of Iowa.

March 17, 1976.

Dwight W. James, F. Richard Lyford and Richard A. Malm, Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellants.

Jack Rogers, Des Moines, for appellee.

John Connolly, III, Connolly, O'Malley, Lillis & Hansen, Des Moines, for intervenors-appellees.

Heard by MOORE, C. J., and RAWLINGS, REES, UHLENHOPP and REYNOLDSON, JJ.

RAWLINGS, Justice.

Plaintiffs appeal from trial court adjudication upholding issuance of a special use permit to intervenor-defendants by defendant Board of Adjustment, City of West Des Moines (the Board). We affirm.

July 26, 1971, intervenor-defendants (referred to collectively as defendants and individually by proper name) petitioned the Board for a special use permit to construct a mortuary. Defendant McLaren Enterprises, Inc. (McLaren), is the developer and primarily interested party, but, for reasons discussed Infra, defendants Carl and Lucille Ripper (Rippers) and Resthaven Cemetery Association (Resthaven) joined in McLaren's petition.

Resthaven is the owner of approximately 35.93 acres of land in West Des Moines, 30.40 acres thereof being dedicated to public use as a cemetery, thus tax-exempt. See § 427.1(3), The Code 1971. The other 5.53 acres are taxable, therefore presumably not so dedicated. In addition to burial plots, a mausoleum stands on the southern portion of the Resthaven property.

The Rippers own a 16.37 acre parcel adjacent to Resthaven. By agreement dated June 17, 1971, McLaren holds an option to lease 2.88 acres of Rippers' land for construction of the proposed mortuary. According to plans and specifications submitted by McLaren, the structure will be located immediately west of the existing mausoleum.

Plaintiffs, taxpayers and residents of West Des Moines living in the vicinity of Resthaven, vigorously opposed the project during the Board hearings. Nonetheless, the special use permit issued September 8, 1971. By certiorari proceedings pursuant to Code § 414.15, plaintiffs took their protest to Polk District Court. April 1, 1974, trial court denied the relief sought by plaintiffs, finding the Board acted legally and within its jurisdiction in granting the special use permit.

Other salient facts will be noted as they become relevant to disposition of the issues presented for review.

Plaintiffs mount a comprehensive attack on the Board's issuance of the permit and trial court's judgment sustaining same. First, they contend the Board's findings are supported by neither substantial evidence nor sufficient findings of fact. Second, it is argued the Board violated the municipal zoning ordinance provisions governing (a) minimum lot area for land uses in agriculturally zoned districts, and (b) conditions precedent to issuance of special use permits. Finally, plaintiffs allege issuance of the permit exceeds statutory authority because the ordinance permits arbitrary and capricious 'spot zoning'. These issues will be considered in the order presented.

I. Our scope of review in cases of this nature has been described as 'somewhat unique'. Trailer City, Inc. v. Board of Adjustment, 218 N.W.2d 645, 646 (Iowa 1974). No useful purpose will be served by repeating Trailer City's exposition of the principles governing judicial review of board actions in zoning matters. As to appellate review, '(t)he action of the trial court has the effect of a jury verdict and is appealable to us on assigned errors only'. Id., 218 N.W.2d at 648.

SUFFICIENCY OF THE RECORD

II. Plaintiffs raise two claims by their first assignment. One relates to competency of evidence presented to the Board. The other goes to legal sufficiency of findings of fact upon which the Board (and trial court) acted. Neither suffices as a predicate for reversal.

A. With regard to the first contention, Supra, plaintiffs point out none of the witnesses who testified at the hearings were placed under oath and none of the offered exhibits were sponsored by persons so sworn. They thereupon construct a three-step supportive argument: (1) Issuance of special use permits is 'a quasi-judicial or administrative function * * *.' City of Des Moines v. Lohner, 168 N.W.2d 779, 784 (Iowa 1969), and citation. (2) In judicial proceedings, no person is competent to testify absent administration of oath. See generally 98 C.J.S. Witnesses § 320. (3) Therefore, evidence in the case at bar was inconsequential and could not serve as a basis for the Board's decision.

Our examination of the record reveals plaintiffs failed to object to the procedure adopted by the Board. In Brenton State Bank v. Heckmann, 233 Iowa 682, 685, 7 N.W.2d 813, 815 (1943), this court observed: 'It is generally held this amounts to a waiver of the right to object that the witnesses are not sworn. (Citation).' The foregoing statement is dispositive. See also Wilcoxon v. United States, 231 F.2d 384, 386-387 (10th Cir. 1956), cert. den., 351 U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469 (1956); People in Interest of K.P., 182 Colo. 409, 514 P.2d 1131, 1134 (1973); 6 Wigmore, Evidence, § 1819(b), at 297-298 (3d ed. 1940); 98 C.J.S. Witnesses § 320e; cf. Ferguson v. Stilwill, 224 N.W.2d 11, 13 (Iowa 1974); Gilbert v. Stevens, 284 App.Div. 1016, 135 N.Y.S.2d 357, 359 (1954). Furthermore, Plaintiffs themselves presented numerous letters from interested citizens opposing construction of the mortuary, none of which were sworn to or notarized.

Parenthetically noted is Code § 414.9, which provides, in relevant part: 'Such chairman (of the board), or in his absence, the acting chairman, May administer oaths and compel the attendance of witnesses.' (emphasis supplied). In Iowa Nat. Indus. Loan Co. v. Iowa State, etc., 224 N.W.2d B. The second contention raised by the present assignment concerns the Board's alleged duty to make more specific findings of fact and provide a statement of reasons for issuing the permit.

437, 440 (Iowa 1974), we said: 'While 'may' is ordinarily a permissive word, there are many circumstances under which it may be given a mandatory meaning. (Citations).' Plaintiffs would have us adopt the latter view. By virtue of our disposition of this question on waiver grounds, however, their request is not entertained. Cf. Brenton State Bank v. Heckmann, supra, 233 Iowa at 685, 7 N.W.2d 813.

The following resolution was adopted by the Board:

'That the request be granted with the provisions and everything that was promised be fulfilled in regards to the screening, the building, the drainage, care of the trees as included in the supplemental statement in regard to the site plan and in the granting of said request subject to the foregoing conditions found:

'1. That the traffic density and control is adequate in view of the ingressegress drives leading to the four-lane public roadway, that evidence although disputed indicates that there will be no decreased value of the buildings, and property adjacent to the area on the lots upon which a funeral home is located.

'2. That it appears the use of the land is in accordance with the comprehensive planning and is compatible to the surrounding area, that all the statements and evidence presented in evaluating the same at the hearing would indicate that the use intended promotes the health and general welfare of the people in general.'

Plaintiffs tell us the generality of these findings is such that it cannot be determined whether the Board and trial court applied all relevant sections of the municipal zoning ordinance in assessing propriety of the permit. It is further contended this case should be reversed and remanded to remedy the situation. We are not so persuaded.

Neither the Board nor trial court were asked to make more specific findings of fact. Although there is substantial uncertainty as to whether certain sections of the zoning ordinance were applicable and if so correctly applied, the fact remains plaintiffs did not act to preserve this matter for review. As aptly stated in Farmers Insurance Group v. Merryweather, 214 N.W.2d 184, 190 (Iowa 1974):

'(W)e do not assume, without proof, that a trial court reached findings through application of erroneous rules of law. (Citation). And, although trial court's findings are unusually brief, we have held one who is dissatisfied with such findings should invoke rule 179(b), Rules of Civil Procedure, which permits a motion asking that they be amended or enlarged. (Citation). (Plaintiff) did not ask for enlarged findings. No error of law has been demonstrated on this point.'

Moreover, this court said in Henschel v. Hawkeye-Security Insurance Company, 178 N.W.2d 409, 420 (Iowa 1970): '(I)n a law case tried to the court issues as to which no findings of fact or conclusions of law are made Or requested will not be considered on review. (Citations).' (emphasis supplied). See also 5A C.J.S. Appeal and Error § 1675.

In short, the asserted inadequacy of the findings below, raised now for the first time, 'will not be entertained save and except as incident to a determination of other issues properly presented.' Presbytery of Southeast Iowa v. Harris, 226 N.W.2d 232, 234 (Iowa 1975). Furthermore, trial court's decision on the facts, although 'unusually brief' as in Merryweather, has the force and effect of a jury verdict. See In re Estate of Crozier, 232 N.W.2d 554, 558 (Iowa 1975); Trailer City, Inc. v. Board of Adjustment, supra, 218 N.W.2d at 648. Such factual determination will be broadly and liberally construed and, where ambiguity Additionally Deardorf v. Board of Adjustment, etc., 254 Iowa 380, 385, 118 N.W.2d 78, 81 (1962), says: 'Our statute does not require the board to make findings of fact nor a record of the reasons for its action.' See also Board of Adjustment of City of Des Moines v....