Wolf v. City of Ely

493 N.W.2d 846, 1992 Iowa Sup. LEXIS 430, 1992 WL 381306
CourtSupreme Court of Iowa
DecidedDecember 23, 1992
Docket91-876
StatusPublished
Cited by30 cases

This text of 493 N.W.2d 846 (Wolf v. City of Ely) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolf v. City of Ely, 493 N.W.2d 846, 1992 Iowa Sup. LEXIS 430, 1992 WL 381306 (iowa 1992).

Opinions

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-l) zoning classification and denying the City’s request for injunc-tive relief. The court held the M-l 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, [848]*848it 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 [849]*849be 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:

i 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,

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Cite This Page — Counsel Stack

Bluebook (online)
493 N.W.2d 846, 1992 Iowa Sup. LEXIS 430, 1992 WL 381306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolf-v-city-of-ely-iowa-1992.