Zilm v. Zoning Bd. of Adjustment, Polk County

Decision Date02 May 1967
Docket NumberNo. 52142,52142
Citation150 N.W.2d 606,260 Iowa 787
PartiesC. R. ZILM and Rose Zilm et al., Appellees, v. ZONING BOARD OF ADJUSTMENT, POLK COUNTY, Iowa, and Eugene R. Severs, d/b/a MacMillan Oil Company, Appellants.
CourtIowa Supreme Court

Chris Becker, Asst. County Atty., Des Moines, for appellant Zoning Board of Adjustment.

McWilliams & Gross, Des Moines, for appellant Eugene R. Severs, d/b/a MacMillan Oil Co.

Stewart, Miller, Wimer, Brennan & Joyce, Des Monies, for appellees.

GARFIELD, Chief Justice.

This is a companion case to Jersild v. Sarcone, Iowa, 149 N.W.2d 179. Reference to the plat on page 182 will aid in visualizing the physical layout. Why the two cases could not have been consolidated or brought as one is not clear.

On May 11, 1964 Eugene R. Severs, d/b/a MacMillan Oil Company, applied to the administrative officer of the Polk County zoning commission for a certificate or permit to erect five tanks for storage of a non-flammable liquid upon a portion of the right of way of Inter-Urban Railway Company leased to him (he owns part of it) just outside the city limits of Des Moines. A certificate was issued the same day.

On May 13 plaintiffs, owners of nearby property, appealed to the zoning board of adjustment from the action of the administrator in issuing the certificate. On June 17, following hearings, the board 'established' the south boundary line of the M--1, light industrial, district in which the property leased to Severs and owned by him is located, and the north boundary line of the R--3, multiple residence, district to the south as the center of Hancock street from its west end to its intersection with Oxford street on the east. (See the plat page 182 of 149 N.W.2d.) The board also rescinded the certificate or permit granted Severs by the zoning administrator and ordered that he must comply with requirements of the county zoning ordinance as to all pertinent setbacks from the R--3 district.

Plaintiffs, property owners, petitioned the district court for review, under Code sections 358A.18 and 358A.19, of the board's order thus establishing the south boundary of the M--1 district and the north boundary of the R--3 district. A writ of certiorari issued and the board filed its return thereto. Following a hearing in district court, largely on the return and exhibits attached but with additional testimony of Donald A. Anderson, the court first dismissed plaintiffs' petition.

After plaintiffs, in effect, moved for reconsideration of the matter the court reversed his previous decision and held the action of the board of adjustment in establishing the district boundary lines as above stated was illegal as an exercise of a legislative function--the establishment of zoning districts--which the state legislature had delegated to the county board of supervisors by Code section 358A.4 and it, in turn, could not delegate the function to the board of adjustment. The court also fixed the south boundary of the M--1 district as the north line of Hancock Street. The county board of adjustment and Severs, who intervened in the action, have appealed to us.

Two errors are assigned. Insofar as they need be considered, they are: (1) The court erred in holding that the board of adjustment is without power to interpret boundaries of zoning districts; and (2) the court erred in finding that the south boundary of the M--1 district is the north line of Hancock Street.

I. We consider the appeal only on the assigned errors. Our review is not de novo. Jersild v. Sarcone, supra, Iowa, 149 N.W.2d 179, 183, and citation; Schultz v. Board of Adjustment of Pottawattamie County, 258 Iowa 804, 139 N.W.2d 448, 450.

Although the trial court's review is de novo in the sense that testimony in addition to the return may be taken if it appears to the court necessary for proper disposition of the matter, the testimony should be confined to the questions of illegality raised by the petition for the writ of certiorari. Anderson v. Jester, 206 Iowa 452, 463, 464, 221 N.W. 354; Schueller v. Board of Adjustment, 250 Iowa 706, 708, 709, 95 N.W.2d 731, 733; Deardorf v. Board of Adjustment, 254 Iowa 380, 383, 118 N.W.2d 78, 80.

II. It may be taken as true, as plaintiffs contend, that the establishment of zoning districts is a legislative function the state legislature has delegated to the county board of supervisors by Code section 358A.4 and it, in turn, may not delegate this function to the zoning board of adjustment. It is also true that the minutes of the action taken by the board of adjustment here read that the south boundary of the M--1 district and the north boundary of the R--3 district 'be established as a line in the center of Hancock Street' from its west end to its intersection with Oxford street.

However, we are not persuaded it follows from the quoted language that the board of adjustment established either of these zoning districts, in the prohibited sense plaintiffs contend for, by the action taken nor that its action was illegal as claimed by them.

Code section 358A.15 provides, so far as pertinent: 'The board of adjustment shall have the following powers: 1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter Or of any ordinance adopted pursuant thereto.' (emphasis added)

The board determined that in order to decide whether the permit issued to Severs was valid it should first locate the boundary line or lines between the M--1 and R--3 districts. Otherwise it would not be known whether the setback requirements of the ordinance could be met.

The zoning map attached to the zoning ordinance shows that the south line of the M--1 district extends to the south of the tracks of the Inter-Urban Railway, approximately to Hancock street but does not show the exact line. The large map prepared when the ordinance was adopted also does not clearly show this exact line. Plaintiffs' brief admits this large map is not clear as to just where the boundary is.

Going to the terms of the ordinance, we find this on p. 10, subsection 1, article V, under the head 'Districts, Boundaries Thereof, and Interpretation of Boundaries': 'Boundaries indicated as approximately following the center line of streets, highways, or alleys, shall be construed to follow such center lines.'

Subsection 7, under the same heading, provides: 'Where physical or cultural features existing on the ground are at variance with those shown on the official zoning, or in other circumstances not covered by subsections 1 through 6 above, the Board of Adjustment shall interpret the district boundaries.'

Appellants contend, and we are inclined to agree, these provisions of the ordinance are broad enough to authorize the action of the board of adjustment here in relation to the south boundary of M--1 district and the north boundary of R--3 district. If the word 'construed' had been used in the minutes of the board's action instead of 'established' perhaps our conclusion would be somewhat more apparent. We are not disposed to attach controlling importance to the board's choice of words.

III. Under a record very similar to that here, Jersild v. Sarcone, supra, 149 N.W.2d 179, 186, concludes 'Although not decisive in this appeal, we are satisfied under the record that the board did not err in determining the boundary line between districts M--1 and R--3 was the center line of Hancock Avenue.'

IV. The trial court held and plaintiffs argue the provision of the zoning ordinance which directs the board of adjustment, under the stated circumstances, to interpret district boundaries is an invalid delegation of legislative authority. The argument is that the provision violates Article III, section 1 Iowa constitution which divides the powers of state government into three departments and prohibits anyone charged with exercise of powers belonging to one department from exercising any function pertaining to either of the others except as the constitution permits. As indicated in division II, supra, we disagree with this argument.

The presumption of constitutionality of a state statute is, of course, elementary. A statute will not be declared unconstitutional unless it clearly, palpably and without doubt infringes the constitution. We have repeatedly said in various ways that every reasonable doubt must be resolved in favor of constitutionality. Hansen v. Haugh, Iowa, 149 N.W.2d 169, 174 and citations; Board of Education of Community School District v. Board of Education of Hardin County, Iowa, 149 N.W.2d 188 and citations.

It is also well settled that when the constitutionality of an ordinance is challenged all reasonable intendments must be indulged in favor of its validity. Plaza...

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