State v. Bates
| Decision Date | 13 May 1981 |
| Docket Number | No. 64428,64428 |
| Citation | 305 N.W.2d 426 |
| Parties | STATE of Iowa, Appellee, v. Marvin BATES, Appellant. |
| Court | Iowa Supreme Court |
Walter J. Conlon, J. Michael Metcalf and William S. Beneke, of Mealy, Metcalf & Conlon, Muscatine, for appellant.
Thomas J. Miller, Atty. Gen., Thomas N. Martin, Asst. Atty. Gen. and Jay T. Schweitzer, Louisa County Atty., for appellee.
Considered by REYNOLDSON, C. J., and UHLENHOPP, HARRIS, ALLBEE and LARSON, JJ.
Defendant Marvin L. Bates was convicted of operating a salvage yard in violation of section 4.26 of the Louisa County Zoning Ordinance, which provides for the amortization of nonconforming uses. On appeal, he contends section 4.26 is invalid for the following reasons: (1) a provision eliminating nonconforming uses is not authorized by the applicable enabling legislation; and (2) the provision is unconstitutional both facially and as applied to defendant.
The operative facts underlying this appeal are undisputed. Beginning in 1958 and continuing until the present, defendant operated a salvage yard business in Louisa County. The county adopted a zoning ordinance in 1971, which was amended one year later to include section 4.26, the provision upon which this case is centered. That section provides as follows:
4.26 Cessation of nonconforming use
Notwithstanding any other provisions of this ordinance.
a. Any automobile wrecking or junk yard in existence in a district in which it is nonconforming, prior to the effective date of this amended ordinance, shall within five (5) years from such date become a prohibited and unlawful use and shall be discontinued.
Defendant was charged under this provision, and on September 21, 1979 was convicted in the Louisa County magistrate's court. That ruling was subsequently appealed to the district court, where it was affirmed on December 20, 1979. Application was then made for discretionary review, which this court granted. See Iowa R.App.P. 201-03.
Initially, defendant raises the question of the county's power to mandate the elimination of nonconforming uses. In this context, a nonconforming use is generally defined as "a use which not only does not conform to the general regulation or restriction governing a zoned area but which lawfully existed at the time that the regulation or restriction went into effect and has continued to exist without legal abandonment since that time." 8A E. McQuillin, The Law of Municipal Corporation § 25.185, at 22 (3d ed. 1976).
Defendant asserts the enactment of a county zoning ordinance eliminating nonconforming uses is beyond the authorization of section 358A.3, The Code 1979. That section states, in relevant part:
(t)he board of supervisors of any county is hereby empowered to regulate and restrict the height, number of structures, and size of buildings, and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence or other purposes ....
We note at this juncture, and the parties apparently agree, that the County Home Rule Amendment, Article III, section 39A of the Iowa Constitution, does not govern the enactment of the ordinance in question here. Section 4.26, the provision under which defendant was prosecuted, was incorporated into the Louisa County Zoning Ordinance six years prior to the adoption of the County Home Rule Amendment. The home rule provision includes no language demonstrating an intent either that it apply retrospectively or act to ratify municipal ordinances of questionable validity enacted prior to its adoption. See Iowa Const. Art. III, § 39A. We attach importance to this because, as a general rule, constitutional provisions operate prospectively; moreover, a constitutional amendment generally will not act to validate existing statutes or other enactments which were invalid prior to its adoption. See generally 16 C.J.S. Constitutional Law §§ 39b, 45 (1956); 16 Am.Jur.2d Constitutional Law § 65 (1979). See also 1A C. Sands, Statutes and Statutory Construction § 23.20, at 258 (4th ed. 1973).
Because the County Home Rule Amendment is inapplicable here, the question becomes whether the amortization scheme of section 4.26 of the Louisa County Zoning Ordinance was authorized under section 358A.3....
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