Smith v. City of Fort Dodge

• Decision Date: 18 July 1968
• Docket Number: No. 53033,53033
• Parties: Lawrence J. SMITH, Merritt E. Skidmore, George G. Hendricks, Appellants, v. The CITY OF FORT DODGE, Iowa, Albert Habhab, Mayor, Edmund Gillespie, Commissioner, and Lawrence Crowley, Commissioner; Joseph E. Brown and Glenn Machovec, Appellees.
• Court: Iowa Supreme Court

Page 492

160 N.W.2d 492

Lawrence J. SMITH, Merritt E. Skidmore, George G. Hendricks, Appellants, v. The CITY OF FORT DODGE, Iowa, Albert Habhab, Mayor, Edmund Gillespie, Commissioner, and Lawrence Crowley, Commissioner; Joseph E. Brown and Glenn Machovec, Appellees.

No. 53033.

Supreme Court of Iowa.

July 18, 1968.

Johnson, Burnquist, McCormick & Erb, Fort Dodge, for appellants.

McCarville & Bennett, Fort Dodge, for appellees Joseph E. Brown and Glenn Machovec.

Donald J. Mitchell, Fort Dodge, for appellees Albert Habhab, Edmund Gillespie Lawrence Crowley, and City of Fort Dodge.

LARSON, Justice.

On September 10, 1957, the City of Fort Dodge, Iowa, enacted Ordinance No. 1126 creating a city plan commission under the authority granted it by chapter 373, Code of 1954. In substance, the ordinance was identical to the code provisions of chapter 373. The pertinent provisions of section 373.1 state: 'The council of each city and town may by ordinance provide for the establishment of a city plan commission for such municipality, consisting of not less than seven members, who shall be citizens of such municipality * * *.'

On June 9, 1959, the city adopted Ordinance No. 1152, which established a zoning commission by authority granted under chapter 414, Code of 1958. Pursuant to the authority granted under section 414.6, the council appointed the members of the already-existing city planning commission as the sole members of the city zoning commission. Thus, for all practical purposes the respective commissions were one and the same.

On March 1, 1960, the city enacted Ordinance No. 1160, which contained a detailed and comprehensive plan for zoning encompassing building restrictions and zoning classifications of all the property within the city.

On January 23, 1967, Joseph E. Brown and Glenn Machovec, two of the defendants, filed a petition to amend Zoning Ordinance No. 1160 so as to change their properties from Zone R--1, single family dwellings, to Zone R--3, multi-family dwellings, and paid the prescribed fee. Although Zoning Ordinance No. 1160 had been previously amended several times, none of those changes related to this area.

On January 24, 1967, the city council referred the petition to the zoning commission and at its regular meeting of February 14, 1967, with four of the members present, voted unanimously to recommend a zoning change which included the property listed in the petition. No notice or public hearing was held prior to that action by the commission.

Thereafter, on April 4, 1967, pursuant to due and timely notice, the council held a hearing on the matter and petitions for and against the change were received. Thirty-two persons were present. Attorneys for both applicants and objectors were heard, and everyone who desired to speak had an opportunity to do so. The council then took the matter under consideration. Later at an executive meeting Gillespie, one of the three council members, moved that the request for the zoning change be granted, but this motion was not seconded and the matter was not pursued at that time.

On April 18, 1967, at a regular council meeting the recommendation of the zoning commission to grant the rezoning of this property was approved and an amending ordinance, No. 1252, was considered and passed. The second and third readings of Ordinance No. 1252 were waived and it was declared adopted by unanimous vote and became effective upon publication on April 20, 1967. On that same date plaintiffs filed a petition praying that a writ of certiorari issue annulling the action of the city council on the grounds that it acted illegally. An ex parte order for the writ and a temporary injunction enjoining construction of a nursing home on the tract in question were obtained.

Pursuant to a hearing on August 28, 1967, the trial court dismissed plaintiffs' petition and dissolved the injunction. They appeal. We affirm.

The sole issue in this appeal is whether the city lacked jurisdiction or acted illegally in rezoning the tract of land in question. Appellants contend inter alia (1) that the zoning and planning commission at the time of its action herein had less than seven members as required by statute and ordinance and could not officially act, (2) that the requested zoning change in this area was a substantial change in the comprehensive zoning plan requiring a notice and hearing not fulfilled, and that the required two-thirds affirmative vote of approval before the commission could make its recommendation to the council did not appear, (3) that the council action on this petition was complete and final when the motion to grant the request was lost for lack of a second, making further action thereon invalid, and (4) that the council's action was arbitrary and capricious.

I. Certiorari is an action in law. Questions or findings of fact by inferior tribunals are generally not reviewable on certiorari. Staads v. Board of Trustees, etc., Iowa, 159 N.W.2d 485, filed June 11, 1968, and citations; Grant v. Norris, 249 Iowa 236, 253, 85 N.W.2d 261, 271; Iowa-Illinois Gas and Elec. Co. v. Gaffney, 256 Iowa 1029, 1033, 129 N.W.2d 832, 834. A review of the facts, then, is for the purpose of determining whether the inferior tribunal's decision is supported by any competent evidence. Lineberger v. Bagley, 231 Iowa 937, 941, 2 N.W.2d 305, 307; Circle Express Co. v. Iowa State Commerce Comm., 249 Iowa 651, 654, 86 N.W.2d 888, 890--891; Koelling v. Board of Trustees etc., 259 Iowa 1185, 1206, 146 N.W.2d 284, 296--297; Staads v. Board of Trustees, supra.

The burden rested on the plaintiffs to show the council exceeded its jurisdiction or otherwise acted illegally. Adams v. Braginton, 159 N.W.2d 479, filed June 11, 1968; Staads v. Board of Trustees, supra; Sueppel v. Eads, Iowa, 156 N.W.2d 115, 117, and citations.

As appellants concede, this type of action did not permit the introduction of evidence as to the character of the surrounding property, but they argue this entire tract was zoned R--1 as indicated by the comprehensive plan of Ordinance No. 1160 and the plat introduced. That this area included substantial nonconforming uses is not questioned, but appellants contend they would eventually be eliminated, and the 74 objecting property owners indicate a desire by neighboring residents to keep this area R--1 residential property.

This showing failed to convince the city council or the trial court that this action was arbitrary and unreasonable, and not for the purpose of promoting the public health, safety and general welfare.

II. Under the police power zoning is a matter within sound legislative discretion and, if the facts do not show the bounds of that discretion have been exceeded, it must be held that the action of the legislative body, here the council, is valid. Keller v. City of Council Bluffs, 246 Iowa 202, 66 N.W.2d 113, and citations. In Keller, at page 207 of 246 Iowa, at page 116 of 66 N.W.2d, we stated: 'We are of the opinion the governing body of a municipality may amend its zoning ordinances any time it deems circumstances and conditions warrant such action, and such an amendment is valid if the procedural requirements of the statutes are followed and it is not unreasonable or capricious nor inconsistent with the spirit and design of the zoning statute.' See also McQuillin, Municipal Ordinances, Chapter VII; McQuillin, Municipal Corporations, section 25.245.

Furthermore, there is a presumption of validity of the amending ordinance which presupposes all necessary procedure was followed by the designated officers. Moreno v. Vietor, Iowa, 156 N.W.2d 305, 309, and citations. As pointed out by appellees, this is a natural presumption because the ultimate decision on its adoption is that of the council. Unless, then, it affirmatively appears council action is tainted by some illegality, its action on this discretionary matter is final and valid.

III. On many occasions we have adequately reviewed the zoning laws of this state. Among those cases are Keller v. City of Council Bluffs, supra; Hermann v. City of Des Moines, 250 Iowa 1281, 97 N.W.2d 893, and citations. The case at bar, however, presents for the first time certain questions involving sufficient compliance with procedural requirements.

Appellants maintain that the city acted illegally because it did not follow the procedural requirements of section 373.1, Code of 1966, and City Ordinance No. 1126. The pertinent portions of section 373.1 are as follows: 'The council of each city and town may by ordinance provide for the establishment of a city plan commission for such municipality, Consisting of not less than seven members, who shall be citizens of such municipality * * *.' (Emphasis added.) This provision found in Ordinance No. 1126 is identical to section 373.1.

The record disclosed that at the time Ordinance No. 1252 amending Ordinance No. 1160 was adopted, there were only five qualified members on the city planning commission. One had resigned and had not yet been replaced, and another, Gaylord Larson, had moved beyond the city limits and was no longer a resident or citizen of Fort Dodge. Larson was not present and took no part in these proceedings.

Appellants argue that since there were only five qualified members on this joint commission at the time the amendment to Ordinance No. 1160 was adopted, the commission was not legally constituted, and thus the action of the council in approving and adopting its recommendation was illegal. They contend that the words of section 373.1 and Ordinance No. 1126 are explicit and require that there be at least seven members on this commission at all times. We do not agree. The law requires the affirmative action of a designated number of qualified members of this commission, and when such appears as required by law, an unfilled vacancy on the commission membership has no effect upon the otherwise legal conclusions reached by it.

Section 373.3 provides for the...