McMahon v. City of Dubuque, Iowa

• Decision Date: 08 May 1958
• Docket Number: No. 15868.,15868.
• Citation: 255 F.2d 154
• Parties: George Vincent McMAHON, Appellant, v. CITY OF DUBUQUE, IOWA, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

255 F.2d 154 (1958)

George Vincent McMAHON, Appellant, v. CITY OF DUBUQUE, IOWA, Appellee.

No. 15868.

United States Court of Appeals Eighth Circuit.

May 8, 1958.

E. Marshall Thomas, Dubuque, Iowa (O'Connor, Thomas, McDermott & Wright, Dubuque, Iowa, on the brief), for appellant.

T. H. Nelson, Dubuque, Iowa, for appellee.

Before SANBORN, WOODROUGH and VOGEL, Circuit Judges.

WOODROUGH, Circuit Judge.

George Vincent McMahon brought this action to obtain declaratory judgment that the zoning of certain described property belonging to him in the City of Dubuque, Iowa, for residential use was invalid, illegal and void as a denial of due process of law in the use of said property and declaring that he has a right to use said property for such uses as are permitted under the City Zoning Ordinance in a Local Business District and for injunction against enforcement of the Ordinance which zones the property for residential use. Federal jurisdiction resulted from diversity and the amount involved. The District Court made painstaking and elaborate findings and held that the zoning of appellant's property for residential use was proper and legal and the refusal to rezone it so that it might be used for Local Business was also proper and legal. This appeal is taken from the judgment dismissing the action. The findings and conclusions of the Court have not been reported.

The material facts were not in dispute and may be summarized from the findings of the trial court as follows:

On March 29, 1929, the City Council of Dubuque enacted Ordinance No. 26-29, providing for a City Planning and Zoning Commission to: make surveys, studies, maps, plans or plats of the whole or any portion of the City and any land outside thereof; to carry on comprehensive studies of present conditions and future growth of the City in order to guide and accomplish a co-ordinated, adjusted and harmonious development of the City in accordance with the present and future needs thereof to the end that the health, safety, morals, order, convenience, prosperity, and general welfare would be best promoted. This the Commission proceeded to do and on January 29, 1934, the City Council adopted Ordinance No. 3-34, which divided the City into seven classes of districts. The Ordinance as adopted contained the classification "Local Business District", however, the City Council later amended the ordinance to provide for "Local Business District A" and "Local Business District B". The principal difference between the two Districts was that in a Local Business District B, drive-ins, taverns, oil and gas stations were permitted. Use for such purposes was not permitted in a Local Business District A.

The property owned by appellant consists of two tracts of land: one located on the northeast corner of the intersection of Rockdale Road and Grandview Avenue; the other is located on the northwest corner of the same intersection. Both parcels are now and have always remained vacant and unimproved, except for billboards at the rear of the premises. The 1934 zoning ordinance zoned both of the tracts for single family residence use. At the time of the adoption of the zoning ordinance in 1934, an area south and west of the intersection along Grandview Avenue (approximately 100 feet in width, east and west, and 300 feet in length, north and south) was in use for local business purposes. At the north end of the strip there was a grocery store and filling station. South of the grocery store and filling station there was a residence. South of the residence was a filling station and the only change in the situation in that strip between 1934 and the commencement of this action in February, 1957, was that the filling station had been replaced by a drive-in at which sandwiches, ice cream, etc., were sold. So far as the record shows the only change made in the 1934 zoning ordinance as to that business district along the south side of Grandview Avenue or in the general area was a change which permitted the State Highway Commission to build an addition to its garage.

To the north of the lot owned by the appellant on the northeast corner of the intersection there is a driveway leading to the City park, known as Grandview Park. That park is of substantial area. To the east of that lot is a well built up residential area. To the north of the lot owned by appellant on the northwest corner is a wooded area on which is situated a single family residence. The topography of some of the area immediately north and west of this lot is precipitous and rugged and has never been used for building purposes.

Rockdale Road is one of the main thoroughfares in the southern part of the City. It commences near the southern end of the main business district and proceeds in a southerly direction through a large area zoned for residence purposes to the City limits. The map which is part of the Zoning Ordinance indicates that the distance between the point Rockdale Road leaves the main business part of the City and the point where it leaves the City limits is about a mile and a half. About half way between those two points Rockdale Road intersects Grandview Avenue. Grandview Avenue commences approximately two miles north and west of the intersection. It then proceeds in a general southerly direction through an area zoned for residence purposes to the intersection. It then proceeds across and beyond the intersection in an easterly direction through an area zoned for residential purposes. Grandview Avenue is described by the Trial Court as a residential street and Rockdale Road, up to the time of the commencement of this action, consisted of a concrete slab which was around twenty feet wide.

The record does not show when appellant became owner of the property in question, but on three occasions, in 1947, 1952, and in 1956, appellant and others, as owners of the property, requested the City of Dubuque to change the zoning classification from residential to Local Business District B classification and on each occasion the request was denied after notice and hearing, the latest denial having occurred in January, 1956. The court studied the several proceedings with care and became fully and accurately informed of all conditions relative to the zoning of the property. Its findings of the evidentiary facts are not complained of. The Court said:

"In 1929 * * * the City Council provided for a Planning and Zoning Commission. That Commission, among other things, was directed to make comprehensive studies of the present conditions and future growth of the City in the interests of health, safety and a coordinated adjustment and harmonious development of the City. That Commission was also directed to prepare a comprehensive zoning plan for the City. In 1934 the City Council adopted a comprehensive zoning plan for the City. At the time the Council adopted that Ordinance the two strips, heretofore referred to, were in use for businesses generally regarded as local in character. Those two strips together were approximately a block and a half in area. They were situated deep in the heart of an area deemed by the City Council to be desirable for residential use. The City Council * * * zoned that block and a half area as a Local Business District in accord with the use then being made of it. It strictly restricted the limits of that District to that block and a half area. The only changes in that block and a half area between 1934 and the commencement of this action were an increase in the traffic on Rockdale Road, the removal of the motel cabins from the north end of the strip, the addition to the Highway Commission garage, and the converting of a filling station to a drive-in."

"The Planning and Zoning Commission has consistently refused to recommend any extension to that block and a half area for business purposes and the City Council has consistently refused to allow such expansion. The Planning and Zoning Commission and the City Council have not permitted any intrusion for business or industrial purposes into that area zoned for residential purposes in this part of the City. That Commission and the City Council have regarded Grandview Avenue as a natural break on the north against encroachment of business places into an area zoned for residential purposes. The Planning and Zoning Commission has manifested special concern as to the traffic problem at the intersection of Rockdale Road and Grandview Avenue. It is apparent that the the Planning and Zoning Commission and the City Council are desirous of preventing the start of what could result in a gradual erosion of a desirable residential area. There is no claim made that the members of the Planning and Zoning Commission and the City Council in refusing to extend the Local Business District in question north of Grandview Avenue have been motivated by ill will or other improper motives. It is apparent that neither that Commission nor the City Council has showed any favoritism in the matter of preventing business intrusion into this residential area of the City, either generally or particularly."

Early in 1956 the State of Iowa, acting through the Iowa Highway Commission made plans to relocate Highway 51, running through appellant's property, and endeavored to negotiate purchase of the property from appellant on the basis of the value of the property as zoned for residential purposes. Appellant refused to sell on that basis and in March, 1956, condemnation proceedings were commenced to take appellant's property. The jury awarded damages in the amount of $12,000. Appellant has taken an appeal from that award to the District Court of Iowa, Dubuque County, and it is presently awaiting trial in that court.

The only issue tried in the court below, in the present case, was whether appellee denied appellant due process of law by its refusal to rezone appellant's property for Local Business District B uses. The trial court found that the refusal to rezone was proper and...