Board of Supervisors of Cerro Gordo County v. Miller

170 N.W.2d 358, 1969 Iowa Sup. LEXIS 889

• Court: Supreme Court of Iowa
• Decided: September 5, 1969
• Docket: 53661
• Status: Published

Opinions

RAWLINGS, Justice.

This appeal involves the constitutionality of certain provisions of a county zoning ordinance requiring discontinued nonconforming use of property within five years after its enactment.

By action in equity plaintiff board of supervisors sought to enjoin defendants’ continued use of their land as an automobile wrecking establishment after expiration of prescribed amortization period. Defendants resisted contending the ordinance, as applied to them, constituted deprivation of property without due process of law.

Trial court found for plaintiff and defendants appeal. We affirm.

To the extent here relevant the case was submitted to trial court on these stipulated facts:

Exhibit A is the Cerro Gordo County Zoning Ordinance which became effective June 4, 1962.

Defendants own and operate a business known as Chazen’s Auto Parts on that real estate described as: “Beginning at the center of Section 12 in Township 96 North, Range 21 West of the 5th P.M., thence north along the west line of the Northeast Quarter (NE ¼) of said Section, 70 rods, thence East at right angles a distance of 22.87 rods, thence South at right angles to the South line of said Northeast Quarter (NE ¼)> thence West along the South line of said Northeast Quarter (NE ¼) to the place of beginning, except that part which has been deeded to the State of Iowa for highway use.”

Prior to adoption of the challenged ordinance defendants were engaged in the operation of said enterprise, and intentionally continued operations more than five years after enactment of the ordinance.

Under the terms thereof defendants’ property is located in what is described as Zone A-Agricultural District. In material part the ordinance, Section XVI, provides :

“The lawful use of any building or land existing at the time of the enactment of this Ordinance may be continued although such use does not conform with the provisions of this Ordinance, except in the case of trailers used for dwelling or sleeping quarters.

⅜ ⅝ ⅜

“E. Cessation

“Notwithstanding any other provisions of this Ordinance :

“a. Any automobile wrecking or junk yard in existence in a district in which it is a non-conforming use, prior to the effective date of this Ordinance, shall within five (5) years from such date become a prohibited and unlawful use and shall be discontinued; * *

If an injunction is granted as plaintiff requests, defendants’ automobile wrecking operations on the above described property must be accordingly terminated without payment of compensation.

Additionally trial court found defendants’ business activities were substantial, but on the other hand no evidence was presented disclosing their use of the land involved any sizable investment in buildings or other improvements.

Despite the fact defendants assert 17 propositions relied upon for reversal, their argument is confined to claimed deprivation of property without due process of law. Section 1, Amendment 14, United States Constitution, and Article I, section 9, of the Iowa Constitution.

I. This case stands in equity and is accordingly reviewable de novo. Rule 334, Rules of Civil Procedure.

Although the scope of our review is the entire case, it will be confined to those propositions properly relied on and argued. Rule 344(a) (4) Third, R.C.P.; Braden v. Board of Supervisors of Pottawattamie Co., Iowa, 157 N.W.2d 123, 124; Quint-Cities Petroleum Co. v. Maas, 259 Iowa 122, 126, 143 N.W.2d 345; and B-W Acceptance Corporation v. Saluri, 258 Iowa 489, 499, 139 N.W.2d 399.

II. Enactment of zoning ordinances by the various counties is authorized by Code chapter 358A. And for present purposes the counties of this state qualify as municipal corporations. See Wapello County v. Ward, 257 Iowa 1231, 1234-1236, 136 N.W.2d 249.

Generally, reasonable zoning ordinances are within and constitute a lawful exercise of police power.

This court had occasion to deal with that subject in Anderson v. Cedar Rapids, Iowa, 168 N.W.2d 739, opinion issued June 10, 1969, and there said: “We have repeatedly-held zoning is an exercise of police powers delegated by the state to municipalities, and to be strictly construed. (Authorities cited).

“However, in the enactment of such ordinances, including amendments thereto, a city or town [county] exercises vested legislative powers attended by a strong presumption of validity, which means if facially valid, and reasonableness of the enactment is fairly debatable, it must be allowed to stand. (Authorities cited).

“Stated otherwise, courts will not substitute their judgment as to wisdom or propriety of action by a city or town council, [county board of supervisors] acting reasonably within the scope of its authorized police power, in the enactment of ordinances establishing or revising municipal zones. (Authorities cited).

“Furthermore, we said in Plaza Recreational Center v. City of Sioux City, supra, loc. cit., 253 Iowa 253, 111 N.W.2d [758] 763: ‘The test of whether a zoning ordinance is arbitrary and unreasonable is Whether the means employed in the attempted exercise of the police power have any real, substantial relation to the- public health, comfort, safety, and welfare, including the maintenance of property values. (Authorities cited).

“More recently this court held, a zoning ordinance is generally sustained as a valid exercise of police power in the interest of public peace, order, morals, health, safety, convenience, and the general welfare of a community, the prime consideration being its general purpose, not the hardship of individual cases. Jersild v. Sarcone, 260 Iowa 288, 149 N.W.2d 179, 183.

“Also, in the Plaza Recreational Center case, supra, 253 Iowa at 252, 111 N.W.2d at 762, is this pertinent statement: ‘Generally speaking, whether the ordinance involved exceeded the council’s authority, or whether is was unconstitutional as being in conflict with the due process or equal protection clauses of the state or federal constitution, the burden to prove the proviso unreasonable, arbitrary, capricious or discriminatory is upon the one asserting the invalidity. Hermann v. City of Des Moines, 250 Iowa 1281, 97 N.W.2d 893, and citations. The rule is well settled that when constitutional questions are raised all reasonable intend-ments must be indulged in favor of the validity of the enactment. We have also constantly held a classification or regulation of the use of property within the municipality will not be held arbitrary unless clearly so, and that when the issue as to whether it was an unreasonable or unequal exercise of power is fairly debatable, courts will not substitute their judgment for that of the legislative body charged with the primary duty and responsibility of determining the question. (Authorities cited.)’ (Emphasis supplied.)”

As we said in Zilm v. Zoning Board of Adjustment, 260 Iowa 787, 150 N.W.2d 606, 610: “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 Recreational Center v. City of Sioux City, 253 Iowa 246, 252-253, 111 N.W.2d 758, 762-763 and citations; Wilkins v. City of San Bernardino, 29 Cal.2d 332, 175 P.2d 542, 547.

“ ‘The strong presumption in favor of a legislative act applies, as well, to zoning ordinances, * * *.’ Brackett v. City of Des Moines, 246 Iowa 249, 260, 67 N.W.2d 542, 547.”

Furthermore, in the early case of Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, the court resolved all doubts as to whether a zoning ordinance measures up to the due process test when it held such an enactment, as with the exercise of any other police power, is constitutionally sound if reasonably applied.

See also Graham v. Worthington, 259 Iowa 845, 850-851, 146 N.W.2d 626; Benschoter v. Hakes, 232 Iowa 1354, 1361-1364, 8 N.W.2d 481; City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34, 38-39; Wolf v. City of Omaha, 177 Neb. 545, 129 N.W.2d 501, 507-509; McQuillin, Municipal Corporations, 1965 Rev.Vol. 8A, section 25.296, page 353; 101 C.J.S. Zoning § 16, page 704; 16 C.J.S. Constitutional Law §§ 174-198, pages 889-973; 58 Am.Jur., Zoning, sections 16-31, pages 949-960; and 16 Am.Jur.2d, Constitutional Law, sections 290-292, pages 563-572.

This means defendants, in their attack on the ordinance at hand assumed a heavy burden, and any doubts as to constitutionality of the enactment must be resolved in its favor.

III.Zoning has been generally referred to as the division of a municipal corporate area into separate zones or districts, and the prescribing of land type uses permitted in each such zone or district to subserve the health, safety, morals or welfare of the community. See Rhyne on Municipal Law, Section 32.1, page 811; McQuillin, Municipal Corporations, 1965 Rev.Vol. 8, section 25.01, page 12; 101 C.J.S. Zoning § 1, page 660; 58 Am.Jur., Zoning, section 1, page 940; and 45 Words and Phrases, Perm.Ed., “Zoning”.

Also, as to purpose and recent trends this court stated in Plaza Recreational Center v. City of Sioux City, 253 Iowa 246, 254, 111 N.W.2d 758, 763: “Preservation of the character of the neighborhood is a valid reason for zoning regulations. It is said in McQuillin on Municipal Corporations, supra, at page 59 of Vol. 8, that ‘zoning regulations promote the general welfare and are valid where they stabilize the value of property, promote the permanency of desirable home surroundings and add to the happiness and comfort of citizens.’ We also said in Anderson v. Jester, supra, at page 457 of 206 Iowa, at page 357 of 221 N.W. [221 N.W. 354]: ‘Reasonableness of a law or regulation depends on conditions existing when it is put into effect, * * The police power under which zoning exists has been extended throughout the country for the protection of the values established and contemplated. In 58 Am.Jur., Zoning, section 21, page 953, it is stated: ‘The modern tendency * * * is to uphold zoning regulations which formerly would have been rejected as arbitrary or oppressive, and in many cases objections to the validity of zoning restrictions on the ground that they are unreasonable, arbitrary, or oppressive, have been overruled.’ Our view here perhaps falls within one of those trends for the protection of persons and established property values. In the case of Steinberg-Baum & Co. v. Countryman, supra, 247 Iowa 923, 930, 77 N.W.2d 15, 19, we recently recognized and approved the trend and upheld the purpose of ‘promotion of prosperity and the general welfare’ by the application of police power.”

See also Code sections 358A.3-358A.5, and 101 C.J.S. Zoning § 2, page 665.

IV. “The term ‘nonconforming use’ is employed in the law of zoning, for the most part, to refer to 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. In other words, it is a use that existed and was lawful when the restriction became effective and which has continued to exist since that time.” McQuillin, Municipal Corporations, 1965 Rev.Vol. 8A, section 25.185, page 21. Also see Rhyne on Municipal Law, section 32.26, page 903, and 101 C.J.S. Zoning § 180, page 936.

So it is apparent we are here confronted with a nonconformity under the controverted county plan, and the constitutional right of a municipality to amortize or phase it out of existence within a fixed period of time.

V. A brief survey of the cases and authorities in this area disclose nonconforming uses have been a problem since the inception of zoning. It was origi-inally thought such uses would be few, and would naturally eliminate themselves through the passage of time, with restrictions on their expansion. But during the past two decades it has become increasingly evident pre-existing nonconformities have no natural tendency to fade away. On the contrary it appears they tend to continue and prosper because of the artificial monopoly accorded them by the law. However, it still remains, the basic aim and ultimate purpose of zoning is to confine certain classes of buildings and uses to specified localities. Nonconforming uses are inconsistent with that objective. In an effort to change nonconformance to conformance as speedily as possible, with due regard for the legitimate interests of the private property owner and the general public, legislative bodies have attempted different means to eradicate undesired uses.

The methods so employed include, (1) condemnation by use of eminent domain; (2) invoking the law of nuisance; (3) forbidding resumption of nonconforming uses after a period of nonuse or abandonment; (4) prohibiting or limiting extensions or repairs; and (5) amortizing the nonconformity over a reasonable period of time.

But the power of eminent domain would be inadequate in this state in that it is restricted to taking only for public use. See R & R Welding Supply Co. v. City of Des Moines, 256 Iowa 973, 977, 129 N.W.2d 666, and 13 Drake L.Rev. 95. Also, the law of nuisance falls short of the desired objective because a troublesome nonconforming use does not always create a traditional common law nuisance, though nonetheless violative of zoning purposes.

Pursuing the subject at hand one more step it is evident a court ordered immediate cessation on the nuisance theory, if applicable under any concept, would in most instances be more harsh and substantial than a reasonable amortization plan.

Finally, as disclosed in City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34, 41, it has been reasonably determined the only effective method of eliminating nonconforming uses yet devised is to amortize the offending building, structure or business operation, and prohibit the owner or operator from maintaining it after expiration of a designated period or date.

In support of the foregoing, see City of Seattle v. Martin, 54 Wash.2d 541, 342 P.2d 602, 603; Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363; City of Los Angeles v. Gage, supra; Rhyne on Municipal Law, sections 32.26 through 32.33, pages 903-922; McQuillin, Municipal Corporations, 1965 Rev.Vol. 8A, sections 25.189-25.195, pages 36-46; 19 Case W. Res.L.Rev. 1042; 24 Md.L.Rev. 323; 31 Mo.L.Rev. 280; 57 Nw.U.L.Rev. 323; 10 Syracuse L.Rev. 214; and Annos. 22 A.L. R.3d 1134.

VI. We are satisfied plaintiff board of supervisors had statutory and constitutional authority to classify defendants’ operations as a nonconforming usage.

However, there has been a conflict in the views adopted by various courts on the power of a municipality, in the adoption of zoning ordinances, to terminate nonconforming uses upon expiration of a prescribed period.

But as heretofore disclosed, recent judicial decisions reveal the pronounced trend is toward elimination of nonconformities by the amortization process. And the test most commonly employed by courts in determining reasonableness of the liquidation period is based upon a balancing of public good against private loss. This unavoidably necessitates an examination of the factual situation presented in each case. Keller v. City of Council Bluffs, 246 Iowa 202, 208, 66 N.W.2d 113, 51 A.L.R.2d 251.

Here again we refer to City of Los Angeles v. Gage, supra. There, as in the case at bar, certain nonconforming uses were to be discontinued within five years after adoption of the zoning ordinance. Upholding the validity of this legislative proviso the court said, loc. cit., 274 P.2d 44: “The distinction between an ordinance restricting future uses and one requiring the termination of present uses within a reasonable period of time is merely one of degree, and constitutionality depends on the relative importance to be given to the public gain and to the private loss. Zoning as it affects every piece of property is to some extent retroactive in that it applies to property already owned at the time of the effective date of the ordinance. The elimination of existing uses within a reasonable time does not amount to a taking of property nor does it necessarily restrict the use of property so that it cannot be used for any reasonable purpose. Use of a reasonable amortization scheme provides an equitable means of reconciliation of the conflicting interests in satisfaction of due process requirements. As a method of eliminating existing nonconforming uses it allows the owner of the nonconforming use, by affording an opportunity to make new plans, at least partially to offset any loss he might suffer. The loss he suffers, if any is spread out over a period of years, and he enjoys a monopolistic position by virtue of the zoning ordinance as long as he remains. If the amortization period is reasonable the loss to the owner may be small when compared with the benefit to the public. Nonconforming uses will eventually be eliminated. A legislative body may well conclude that the beneficial effect on the community of the eventual elimination of all nonconforming uses by a reasonable amortization plan more than offsets individual losses.”

In Lachapelle v. Town of Goffstown, 107 N.H. 485, 225 A.2d 624, 22 A.L.R.3d 1128, an ordinance permitting the nonconforming use of land as a motor vehicle junk yard for only one year after its enactment was upheld. There, after an exhaustive review of zoning and the elimination of noncon-formities, the court said at 225 A.2d 627: “ ‘Junked automobiles are considered a health and safety hazard for numerous reasons. They tend to become homes for rats and vermin, children are attracted to them and most junked cars still have gas tanks with gasoline in them. They have trunk lids which may fall shut, or the car may be ready to fall if disturbed. However, another and more subtle criticism of junked autos is that they tend to create neighborhood blight. The presence of old cars on the streets [highways] gives the neighborhood a shabby and rundown appearance. This, in turn, creates secondary reactions regarding the cleanliness and care given the neighborhood by its residents.’ Report of the Advisory Committee, Junk Auto Disposal Project, sponsored by New Hampshire Municipal Association and New Hampshire Charitable Fund, p. 2 (October 1966).”

And in Spurgeon v. Board of Commissioners, 181 Kan. 1008, 317 P.2d 798, the court upheld validity of a two year period for removal of a car wrecking establishment and junk yard as a nonconforming use under a zoning ordinance.

With regard to the foregoing see also Annos. 22 A.L.R.3d 1137, 1148.

VII. For reasons heretofore stated, determination as to reasonableness of the questioned five year amortization provision dictates a consideration of the factual situation here presented.

As aforesaid, the record discloses defendants owned and operated their auto salvage business prior to passage of the contested ordinance which, inter alia, prohibited operation of any auto salvage yard in the area occupied by defendants, Zone A-Agricultural. It also accorded existing junk yards in that area five years to discontinue operations. At the same time conduct of such a business was permitted in heavy industrial districts, created under section 14 of the enactment. Defendants have intentionally continued their wrecking operations beyond the fixed limitation period. The only evidence regarding their enterprise is that it is a substantial business operation. No showing is made relative to defendants’ business investment, value of any improvements on their land, or extent of hardship, if any, in complying with the disputed ordinance.

Upon the basis of this record we are called upon to determine whether defendants adequately met and sustained the burden they assumed in challenging reasonableness of the ordinance as it applies to them. It is argued by defendants they did so.

In support of that position they cite and lean rather heavily on Stoner McCray System v. City of Des Moines, 247 Iowa 1313, 78 N.W.2d 843, 58 A.L.R.2d 1304. But we find that case neither factually comparable nor here controlling. In Stoner McCray this court held unreasonable, a zoning ordinance which, in effect, provided for elimination of certain billboards within two years after the enactment. However, the record there disclosed the sign company, relying on permits issued by the municipality, had promptly made substantial investments in the construction of new and costly advertising boards.

The matter of monetary expenditures, though not alone necessarily determinative, is one element to be considered whenever relevant or possible, with regard to any zoning amortization program, in the weighing of private hardship against public health, safety, morals and welfare. See 57 N.W. U.L.Rev. 323, 328, and Annos. 22 A.L.R.3d 1134, 1139-1159.

On the other hand, as previously revealed no facts are before us by which we may, in the balancing process, either apply or effectively evaluate the matter of investment, value or other monetary detriment to defendants by application of the prescribed amortization plan. Furthermore, the record is devoid of any informative showing as to other possible material elements or factors manifesting unreasonableness of the subject ordinance as applied to these defendants. See in that regard 24 Md.L.Rev. 323, 329.

Moreover, this court said in the Stoner McCray case, supra, loc. cit., 247 Iowa 1320, loc. cit., 78 N.W.2d 843: “We do not wish to infer herein that under certain circumstances a municipality could not provide for the termination of nonconforming uses, especially if the period of amortization of the investment was just and reasonable, j}c * * yy

VIII. It is to us evident defendants have failed to show, with sufficient certainty, the amortization provision of the contested ordinance, as applied to them, is unconstitutional. Also, the ordinance being facially valid and its reasonableness fairly debatable, it must accordingly be upheld.

Resultantly we now hold the challenged amortization provision of the Cerro Gordo County Zoning Ordinance, as it applies to defendants in this case, is not unreasonable and does not constitute an unconstitutional exercise of the police power delegated by our state legislature.

IX. Any stay order heretofore issued by this court in the case at bar is hereby annulled.

However, it is to us apparent defendants should be and are allowed 120 days from and after date of filing of this opinion to comply with the terms of the ordinance here involved, and no writ of injunction shall issue by trial court until expiration of that period of time.

Affirmed.

GARFIELD, C. J„ and SNELL and Le-GRAND, JJ., concur. STUART, LARSON, MOORE and BECKER, JJ., dissent. MASON, J., takes no part.

The members of this court being equally divided, the judgment of the trial court stands affirmed by operation of law. (Section 684.10, Code, 1966).