Wolf v. City of Ely, 91-876

• Decision Date: 23 December 1992
• Docket Number: No. 91-876,91-876
• Citation: 493 N.W.2d 846
• Parties: John WOLF and Pat Wolf d/b/a Automotive Engineering Co., Appellees, v. CITY OF ELY, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 846

493 N.W.2d 846

John WOLF and Pat Wolf d/b/a Automotive Engineering Co., Appellees, v. CITY OF ELY, Iowa, Appellant.

No. 91-876.

Supreme Court of Iowa.

Dec. 23, 1992.

Robert S. Hatala of Crawford, Sullivan, Read, Roemerman & Brady, P.C., Cedar Rapids, for appellant.

Gary J. Shea of Shea Law Offices, Cedar Rapids, for appellees.

Considered en banc.

ANDREASEN, Justice.

The City of Ely adopted a zoning ordinance in 1978. The district court declared the ordinance invalid because it was not adopted in accordance with a comprehensive plan. Upon review we affirm the district court's declaratory judgment.

I. Background.

John and Pat Wolf own three connecting parcels of land in or adjacent to the City of Ely that have been identified as parcels A, B and C. The Wolfs operate a salvage or junkyard on their property. Parcel A is located in an area that was zoned manufacturing; parcel B is located in an area zoned commercial; and parcel C is located in an area zoned residential or agricultural.

On May 6, 1987, Ely brought an action to enjoin the Wolfs from operating a salvage yard on parcel A. City of Ely v. John and Pat Wolf, Linn County, EQ 10962. On October 23, 1989, district judge Paul J. Kilburg entered a decree invalidating Ely's manufacturing (M-1) zoning classification and denying the City's request for injunctive relief. The court held the M-1 classification was invalid because the 1978 ordinance constituted exclusionary zoning and was not promulgated pursuant to a comprehensive plan as required by Iowa Code section 414.3 (1977). No appeal was taken from the court's judgment.

The Wolfs filed the present action on April 9, 1990, seeking a court judgment declaring the entire zoning ordinance invalid and their use of their property (parcels A, B and C) lawful. ¹ The Wolfs allege the entire zoning ordinance is invalid for two reasons. First, it was not adopted in accordance with a comprehensive plan. Second it is overbroad and exclusionary in violation of their constitutional due process rights.

Following trial, district judge Thomas M. Horan entered a ruling and judgment on June 3, 1991. The court concluded the "ordinance was not made in accordance with a comprehensive plan as required by Section 414.3, the Code." Accordingly, the court declared Ely's entire zoning ordinance invalid.

On June 6, Ely filed its notice of appeal. Shortly thereafter, on June 13, the Wolfs filed a timely motion to enlarge the district court's findings pursuant to Iowa Rule of Civil Procedure 179(b). The court, over Ely's objection, granted the Wolfs' motion on June 28. The court amended the June 3 ruling and judgment to add that the city zoning ordinance is invalid because it is overbroad and constitutes exclusionary zoning in violation of the Wolfs' constitutional rights to due process of law. Ely did not appeal this ruling, but in its resistance to the rule 179(b) motion, the City urged the district court did not have subject matter jurisdiction to enter any order after it had filed a notice of appeal.

On August 19, the Wolfs filed, pursuant to Iowa Rule of Appellate Procedure 23(a), a motion to dismiss the appeal urging Ely's failure to appeal the June 28 ruling and judgment rendered any remaining issues moot. Ely resisted, and on September 24, we entered an order directing that the Wolfs' motion to dismiss be submitted along with this appeal. We will address the motion to dismiss before addressing the issues raised on appeal.

II. Motion to Dismiss the Appeal.

Ely, in its resistance to the motion to dismiss the appeal, urges the June 28 ruling and judgment is void because the district court was divested of jurisdiction when the appeal was perfected. Ely relies upon the general rule that the trial court loses jurisdiction over the merits of the controversy when an appeal is perfected. Hulsing v. Iowa Mut. Ins. Co., 329 N.W.2d 5, 7 (Iowa 1983); In re Estate of Tollefsrud, 275 N.W.2d 412, 417 (Iowa 1979); Jones v. Jones, 255 Iowa 103, 109, 121 N.W.2d 668, 672 (1963); see also cases recognizing the general rule but finding an exception In re B.L., 470 N.W.2d 343, 347 (Iowa 1991); Universal Coops. Inc. v. Tasco, 300 N.W.2d 139, 142 (Iowa 1981).

An appeal is taken and perfected by filing a notice of appeal with the clerk of court where the order, judgment or decree was entered. Iowa R.App.P. 6(a). Generally, the appeal must be taken within thirty days from the entry of the order, judgment or decree. Iowa R.App.P. 5.

When (1) a motion to enlarge or amend (Iowa R.Civ.P. 179(b)), (2) a motion for judgment notwithstanding the verdict (Iowa R.Civ.P. 243), or (3) a motion for new trial (Iowa R.Civ.P. 244) is pending prior to the taking of an appeal, the decree to which the motion is addressed becomes in effect interlocutory until the court rules upon the motion. Hulsing, 329 N.W.2d at 7; Recker v. Gustafson, 271 N.W.2d 738, 739 (Iowa 1978).

Unlike their federal counterpart, our appellate rules do not provide that a notice of appeal, filed before the disposition of a postjudgment motion, shall have no effect. See Fed.R.App.P. 4(a)(4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225, 229 (1982) (under federal rule the district court is given express authority to entertain timely posttrial motions; a previously filed notice of appeal has no effect--it simply self-destructs). The general rule that the district court loses jurisdiction when an appeal is perfected has application when the appeal is taken before the filing of posttrial motions. We hold that Ely's notice of appeal conferred jurisdiction on the appellate court and divested the district court of jurisdiction to rule upon the Wolfs' rule 179(b) motion.

However, a timely filed posttrial motion may be addressed by the district court if the appellate court remands the cause to the district court. Iowa R.App.P. 12(g). The application for limited remand should be promptly made so that posttrial motions can be addressed by the district court. We recognize judicial economy may be promoted by a prompt remand. Remand upon a rule 179(b) motion may allow issues that were overlooked or ignored by the district court to be brought to the court's attention and can be used to preserve issues for appellate review that would otherwise be lost. However, the application to the appellate court for a limited remand will not revive a time-barred posttrial motion. See Hearity v. Board of Supervisors, 437 N.W.2d 907, 908 (Iowa 1989).

III. Comprehensive Plan.

It is said:

Comprehensive zoning is general zoning throughout a municipality according to a comprehensive plan to control and direct the use and development of property in the area by dividing it into districts according to present and potential uses.

Brackett v. City of Des Moines, 246 Iowa 249, 257-58, 67 N.W.2d 542, 546 (1954). Iowa Code section 414.3 requires that zoning regulations "shall be made in accordance with a comprehensive plan." The requirement of a comprehensive plan is found in the zoning law of those states that have taken the standard state zoning enabling act as their model. Vestal, Iowa Land Use and Zoning Law § 3.01(d) (1979). The act was first drafted in the early 1920s and was adopted in whole or in part by thirty-five states. Id. at n. 19. The act did not define the term comprehensive plan.

A majority of courts in states where zoning must be "in accordance with a comprehensive plan" hold a plan external to the zoning ordinance is not required. 2 The American Law of Real Property, Planning and Zoning § 12.02 (1991). However, an increasing number of legislatures specifically require that a plan be adopted. Id. The "comprehensive plan" requirement was imposed to prevent piecemeal and haphazard zoning. Standard State Zoning Enabling Act (United States Department of Commerce, § 3 n. 22 (1922)). The word "plan" connotes an integrated product of a rational process; the word "comprehensive" requires something beyond a piecemeal approach. Kozesnik v. Township of Montgomery, 24 N.J. 154, 166, 131 A.2d 1, 7 (1957). We have suggested the purpose of a comprehensive plan is "to control and direct the use and development of property in the area by dividing it into districts according to present and potential uses." Plaza Recreation Ctr. v. Sioux City, 253 Iowa 246, 258, 111 N.W.2d 758, 765 (1961); see also Bell v. City of Elkhorn, 122 Wis.2d 558, 564-65, 364 N.W.2d 144, 147 (1985) (list of objectives sought to be achieved through development of a comprehensive plan).

Iowa Code section 358A.5, relating to county zoning, contains the identical requirement. In discussing this requirement, we stated: "If the Board gave full consideration to the problem presented, including the needs of the public, changing conditions, and the similarity of other land in the same area, then it has zoned in accordance with a comprehensive plan." Montgomery v. Bremer County Bd. of Supervisors, 299 N.W.2d 687, 695 (Iowa 1980). The Iowa Court of Appeals commented, "nothing in Chapter 358A requires a county to reduce a comprehensive plan to written form." Webb v. Giltner, 468 N.W.2d 838, 840 (Iowa App.1991). The comprehensive plan requirement is intended to ensure the county board acts rationally rather than arbitrarily in exercising their delegated zoning authority. Id. As suggested by the court of appeals, the generic standard in Montgomery would apply when a county either has no individualized comprehensive plan or has not reduced that plan to writing. Id.

The Wolfs challenged the 1978 zoning ordinance in both the action brought by the City in 1987 and in their action against the City in 1990. In the 1991 decree, the district court concluded that a separate formal document called a comprehensive plan was not required to validate the City's zoning ordinance. Nevertheless, the court found "there is no evidence to indicate that the City engaged in any rational planning before the adoption of...