Kordick Plumbing & Heating Co. v. Sarcone

• Decision Date: 09 September 1971
• Docket Number: No. 54874,54874
• Citation: 190 N.W.2d 115
• Parties: KORDICK PLUMBING AND HEATING COMPANY, Inc., Appellee, v. James V. SARCONE, as Polk County, Iowa Zoning Administrator, et al., Appellants.
• Court: Iowa Supreme Court

Page 115

190 N.W.2d 115

KORDICK PLUMBING AND HEATING COMPANY, Inc., Appellee, v. James V. SARCONE, as Polk County, Iowa Zoning Administrator, et al., Appellants.

No. 54874.

Supreme Court of Iowa.

Sept. 9, 1971.

Ray A. Fenton, County Atty., and Robert B. Scism, Des Moines, for appellants.

Robert E. Dreher, Des Moines, for appellee.

REES, Justice.

This appeal involves the ultimate question as to whether the trial court erred in interpreting the Polk county zoning ordinance so as to permit the establishment of a mobile home residence park in an area zoned under the county zoning ordinance as M--2, heavy industrial district.

Plaintiff corporation is the owner of an undeveloped 64-acre tract lying south of Interstate highway 80 in Polk County. It made application for issuance of a building permit for the construction of a mobile home residence park on the premises owned by it which premises are a part of and surrounded by other portions of an area zoned by Polk county as a heavy industrial district and identified by the ordinance as an M--2 zone. The defendant Sarcone, acting in his capacity as zoning administrator, advised plaintiff by letter the Polk county zoning ordinance did not permit the construction of a mobile home residence park in an M--2 district. After further proceedings which are not pertinent to this appeal, plaintiff filed its petition in the district court of Polk county for writs of mandamus and certiorari. The writ of certiorari was ordered issued and the matter came on for trial, the principal and only issue presented being whether the zoning ordinance permits or does not prohibit the construction of a mobile home residence park in a district classified under the ordinance as a heavy industrial district, or M--2 district. Trial court held the ordinance does permit establishment of a mobile home residence park in an M--2 heavy industrial district, but that the requirements of another section of the ordinance, Article 11, which provide for and regulate the establishment of mobile home residence parks in a district identified as R--4, applied to any mobile home project to be developed or constructed in an M--2 district. Trial court ordered issuance of writ of mandamus as prayed requiring defendants to issue building permit to plaintiff. We are unable to agree with the interpretation placed upon the ordinance by the trial court, and reverse.

In their assignment of errors upon which they rely for reversal, the defendants contend the court erred in: (1) ruling the Polk county zoning ordinance does not prohibit the location of a mobile home residence park in an area classified M--2, heavy industrial district; (2) ruling the Polk county zoning ordinance does not prohibit the location of mobile homes (as distinguished from a mobile home residence park) in an area classified M--2, heavy industrial district; (3) failing to rule the Polk county zoning ordinance restricts the location of mobile home residence parks to areas classified R--4, mobile home park residence district; and, (4) ruling the Polk county zoning ordinance classification, M--2, heavy industrial district, is all-inclusive and incorporates within it the classification R--4, mobile home park residence district.

Article 5 of the ordinance under scrutiny here provides that for the purposes of the ordinance itself, the unincorporated territory of Polk county is divided into the following districts: A--1 agricultural, R--1 suburban residence, R--2 one & two-family residence, R--3 multi-family residence, R--4 mobile home park residence, C--1 local commercial, C--2 highway service, C--3 general commercial, M--1 light industrial, M--2 heavy industrial, and U--1 unclassified. Article 16 of the ordinance covers and embraces the regulations and enumerates the principal permitted uses of the M--2 heavy industrial district, and it is with this section of the ordinance we are principally concerned in this appeal. The general regulations section of the ordinance is Article 6, and reference is made to conformance with the general regulations in Article 16. Article 16, among other things, provides:

'A building or premises may be used for any purpose except those listed immediately below And those listed in Section H. Article 19, 'Special Uses.' (italics supplied).

'1. No building permit shall be issued for any use in conflict with any resolution of Polk County or law of the State of Iowa regulating nuisances.

'2. No building permit shall be issued for any dwellings, schools, hospitals, clinics and other institutions for human care, except where incidental to a permitted principal use.

'3. No building permit shall be issued for any of the following uses until and unless the location of such use shall have been authorized by the Board of Adjustment as provided for under Article 19, Paragraph H: * * *' (here follows the enumeration of several use classifications, none of which is referable to the use of premises in the M--2 district for the establishment of mobile home residence parks).

I. Our review is on assigned errors, the trial court's findings of fact having the force of a jury verdict. Section 358A.21, Code, 1971; Jersild v. Sarcone, 260 Iowa 288, 292, 149 N.W.2d 179; Deardorf v. Board of Adjustment, 254 Iowa 380, 384, 118 N.W.2d 78, 80.

We are not confronted with any questions relative to the regularity of the proceedings culminating in the adoption of the ordinance, nor does either party make any contention the ordinance was not enacted in accord with a comprehensive plan as is required by Chapter 358A, and particularly section 358A5, Code, 1971.

II. Succinctly stated, the defendants' position in this appeal is that Article 16 of the zoning ordinance does not Permit the establishment of mobile home residence parks in an M--2 heavy industrial district, but conversely, the plaintiff insists Article 16 does not Prohibit the establishment of mobile home residence parks in a heavy industrial district. This distinction is interesting as an exercise in semantics, but is of little help to us in the determination of the ultimate question presented by this appeal.

Generally speaking, ordinances promulgated pursuant to authority delegated to a local governing body are extensions of state statutes and are to be construed as statutes, and should therefore be construed liberally to effect their purpose. Section 4.2, Code, 1971; Taft v. Zoning Board of Review, 75 R.I. 117, 64 A.2d 200, 201; 101 C.J.S. Zoning § 128, p. 881. However, it is well settled that zoning is an exercise of the police power delegated to local governing bodies and ordinances with respect thereto must be strictly construed. Anderson v. City of Cedar Rapids (Iowa 1969), 168 N.W.2d 739, 742; Livingston v. Davis, 243 Iowa 21, 26, 50 N.W.2d 592, 596; 27 A.L.R.2d 1237, 1244. See also McQuillin, Municipal Corporations, 1965 Rev.Vol. 8, § 25.72, p. 191, and Rathkopf, Law of Planning and Zoning, Vol. 1, Ch. 8, and 1970 Cum.Supp. thereto.

III. In our consideration of the question presented here, we must give consideration to the ordinance in its entirety. City of Tipton v. Tipton Light & Heating Co., 176 Iowa 224, 229, 157 N.W. 844, 846; Mallory v. Paradise, 173 N.W.2d 264, 266 (Iowa 1969); City of Nevada v. Slemmons, 244 Iowa 1068, 1071, 59 N.W.2d 793, 794. The ordinance must be read as a whole, and each section thereof given consideration so as to give the ordinance its natural and intended meaning. Talarico v. City of Davenport, 215 Iowa 186, 193, 244 N.W. 750, 753; Becker v. City of Waterloo, 245 Iowa 666, 669, 63 N.W.2d 919, 920. Rule 344(f)13, Rules of Civil Procedure, provides, 'In construing statutes, the courts search for the legislature intent as shown by what the legislature said, rather than what it should or might have said', and is applicable to the question presented by this appeal.

IV. We perceive no ambiguity in the ordinance under scrutiny here. The ordinance clearly expresses its intendment, purpose and design and therefore, while there may be ground for interpretation of the ordinance there is no occasion to resort to rules of construction. Kruck v. Needles, 259 Iowa 470, 476, 144 N.W.2d 296, 300; Hardwick v. Bublitz, 253 Iowa 49, 54, 111 N.W.2d 309, 311. We recognize a distinction is sometimes made between the words Construction and Interpretation. Construction has been said to be the drawing of conclusions respecting subjects that lie beyond the direct expression of the text from elements known from and given in the text although not within the letter of the same, while interpretation is the art of finding the true sense of any form of words. 50 Am.Jur., Statutes, § 218, p. 198; Black's Law Dictionary, Rey. 4th Ed. p. 386; Fleming v. Hawkeye Pearl Button Co. (D.C.Iowa) 113 F.2d 52. If we had found ambiguities in the ordinance, we might have employed the doctrine of contemporaneous construction in which the wording of an ordinance and the practical construction accorded thereto by enforcing officers is given great weight by the court. Whattoff v. United States, 355 F.2d 473 (CA 8 Iowa 1966); 56 Am.Jur.2d, Municipal Corporations, § 405, pp. 448--449; 62 C.J.S. Municipal Corporations § 226(16)a, p. 480; 101 C.J.S. Zoning § 128, p. 883.

V. Article 6 of the zoning ordinance under examination here is the general regulation article of the ordinance and is relatable to all of the sections or articles which establish zones or districts and prescribe uses. The provisions of Article 16 with respect to the establishment of the M--2 or heavy industrial district are explicit and we refer to the principal permitted use phrases of Article 16 quoted hereinabove. The language quoted above necessarily means to us that the M--2 or heavy industrial district may be used principally for any purpose except the purposes listed in Article 16 itself and except those listed in Article 19, § H, which defines special uses. An examination of Article 19(H) indicates that mobile homes will...