Vogelaar v. Polk County Zoning Bd. of Adjustment, 54818

• Citation: 188 N.W.2d 860
• Decision Date: 27 July 1971
• Docket Number: No. 54818,54818
• Parties: Ernest VOGELAAR et al., Appellants, v. POLK COUNTY ZONING BOARD OF ADJUSTMENT and Des Moines Metropolitan Area Solid Waste Agency, Charles Vander Linden, Chairman and Director, Appellees.
• Court: Iowa Supreme Court

Page 860

188 N.W.2d 860

3 ERC 1870

Ernest VOGELAAR et al., Appellants, v. POLK COUNTY ZONING BOARD OF ADJUSTMENT and Des Moines Metropolitan Area Solid Waste Agency, Charles Vander Linden, Chairman and Director, Appellees.

No. 54818.

Supreme Court of Iowa.

July 27, 1971.

Howard S. Life and Patrick Life, Oskaloosa, for appellants.

Robert B. Scism, Des Moines, for appellee Polk County Zoning Board of Adjustment.

David S. Sather, Des Moines, for appellee Des Moines Metropolitan Area Solid Waste Agency.

REYNOLDSON, Justice.

The trial court sustained the action of defendant Polk County Zoning Board of Adjustment in issuing a permit for construction of a sanitary landfill to defendant Des Moines Metropolitan Area Solid Waste Agency. Plaintiffs are landowners and residents in the area of the landfill site. They appeal and we affirm.

The landfill property is a 400 acre tract known as the Pomerantz farm. It is located approximately seven miles East of the Des Moines City limits in Polk County, Iowa. The real estate is in an unincorporated area zoned A--1, Agricultural District, under the county zoning ordinance. This ordinance provides for establishment of garbage disposal and dumps, including landfills, on property zoned A--1, but only by special permit following a public hearing.

The viability of the Waste Agency, created by a number of municipalities pursuant to chapter 28E, Code, 1971, was recognized by this court in Goreham v. Des Moines Met. Area Solid Waste Agency, 179 N.W.2d 449 (Iowa 1970). Responding to acute needs and to chapter 406, Code, 1971 (requiring the establishment of a sanitary solid waste disposal facility by every town, city and county), the Waste Agency purchased the Pomerantz farm and applied to defendant Board of Adjustment for a special use permit to construct a sanitary landfill. Following a public hearing on May 21, 1970, the board issued the requested permit subject to certain conditions and restrictions.

On June 15, 1970, plaintiffs filed a petition for writ of certiorari under provisions of § 358A.18, Code, 1971, alleging the defendant board had acted illegally in granting the special use permit.

The petition named only Polk County Zoning Board of Adjustment as defendant. Because it was initially omitted as a party, the Waste Agency maneuvered without success to have the case dismissed. The court then on its own motion ordered the agency to be brought into the cause as an indispensable party under rule 25, Rules of Civil Procedure.

Exercising its discretion to hear evidence pursuant to § 358A.21, Code, 1971, the court received testimony of Waste Agency's investigations and studies relating to the construction and operation of the landfill. Testimony was adduced from which the court found the geophysical composition of the Pomerantz farm will not allow surface water to penetrate through to the permanent water table. Evidence indicated the planned operation will prevent percolating waters from flowing through deposited waste and contaminating the local water supply. Burning on this site will be prohibited. The erection of barrier fences will prevent blowing matter from being carried away from the area. Each day's waste, projected to be 300 truck loads, will be sealed in cells in a manner eliminating leakage from one to another. In addition, defendant agency plans to limit esthetic impairment by screening the landfill site with stockpiled fill dirt and trees.

Following the testimony the trial court held there was substantial evidence to support defendant board's decision to issue the permit. Plaintiffs' petition was dismissed and the writ annulled by ruling entered November 3, 1970.

Plaintiffs' 13 page brief, citing no case authority, presents three issues relied upon for reversal. These are (1) the decree of the trial court is contrary to the provisions of subsection 3 of § 358A.15, Code, 1971, (2) the decree of the trial court is contrary to the public interest, (3) the decree of the trial court allows the creation of a public nuisance contrary to the provisions of chapter 657, Code, 1971.

I. Plaintiffs assert the decree of the trial court is contrary to the provisions of subsection 3 of § 358A.15. This contention exposes plaintiffs' confusion concerning the powers of defendant board itemized under § 358A.15. The section cited relates solely to powers of the county zoning board of adjustment, not to powers of a reviewing trial court.

Further, analysis of the application made by the Waste Agency to defendant board subsumes the action under the Original jurisdiction granted in subsection 2, § 358A.15. Under subsection 2 the board of adjustment is authorized to hear and decide Special exceptions to the terms of the ordinance.

In contrast, under subsection 3 of § 358A.15, the board is given power to authorize Upon appeal, in specific cases, such Variance from the terms of the ordinance as will not be contrary to the public interest. Under § 358A.13 Appeals to a board of adjustment may be taken by any person aggrieved or by any county officer, department, board or bureau affected By a decision of the administrative officer.

As used in the context of zoning ordinances, a 'variance' is authority extended to the owner to use property in a manner forbidden by the zoning enactment, where literal enforcement would cause him undue hardship; while an 'exception' allows him to put his property to a use which the enactment expressly permits. Moody v. City of University Park, 278 S.W.2d 912, 919--920 (Tex.Civ.App.1955). See also Rosenfeld v. Zoning Board of Appeals, 19 Ill.App.2d 447, 450, 154 N.W.2d 323, 325 (1958).

The two concepts are well clarified in Depue v. City of Clinton, 160 N.W.2d 860, 864 (Iowa 1968). In that decision we quoted with approval the following from Cunningham, Land-Use Controll--The State and Local Programs, 50 Iowa L.Rev. 367, 399--400:

'Since World War II, however, most courts have come to recognize that a 'special exception' permits in a particular district a use not otherwise permitted when certain conditions specifically set out in the ordinance are satisfied * * *. A 'variance', on the other hand, relaxes the zoning regulations when literal enforcement would result in 'unnecessary hardship'.'

The 'special use permit' granted defendant waste agency falls within the modification authorized by § 358A.15(2) and is a 'special exception', rather than a 'variance' authorized by § 358A.15(3). Plaintiffs' argument that trial court's ruling was contrary to § 358A.15(3) misses its mark completely. The proceeding was...