# Board of Supervisors of Cerro Gordo County v. Miller

> Supreme Court of Iowa · September 5, 1969 · 170 N.W.2d 358

URL: https://www.frixlaw.com/law-library/cases/9855225

## Case

- **Full name:** BOARD OF SUPERVISORS OF CERRO GORDO COUNTY, Iowa, Appellee, v. Robert J. MILLER and Harm Vierkant, D/B/A Chazen’s Auto Parts, Appellants
- **Court:** Supreme Court of Iowa
- **Decided:** September 5, 1969
- **Citations:** 170 N.W.2d 358; 1969 Iowa Sup. LEXIS 889
- **Precedential status:** Published
- **Opinion:** Dissent by Stuart
- **Judges:** Rawlings, Garfield, Snell, Le-Grand, Stuart, Larson, Moore, Becker, Mason
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9855225

## Opinion text

STUART, Justice
(dissenting).
Zoning is in the public interest. It is essential to the orderly growth of our bur *365 geoning communities and contributes to the public health, morals, safety and general welfare. However, we are now confronted for the first time with a zoning law which eliminates a lawful nonconforming use after a fixed period of time under the police power. In my opinion such legislation takes property without due process of law and just compensation in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and sections 9 and 18, Article I, Constitution of the State of Iowa.
“We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Mr. Justice Holmes in Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393 , 43 S.Ct. 158 , 67 L.Ed. 322 , 28 A.L.R. 1321, 1326 .
I agree with Judge Hutcheson’s statement in his dissent to the opinion in Standard Oil Co. v. City of Tallahassee (1950), 5 Cir., 183 F.2d 410 , 414: “I am in no doubt that in sustaining this admittedly confiscatory ordinance, a good general principle, the public interest in zoning, has been run into the ground, the tail of legislative confiscation by caprice has been permitted to wag the dog of judicial constitutional protection.”
I. “Stated in its simplest terms, amortization contemplates the compulsory termination of a non-conformity at the expiration of a specified period of time, which period is equal to the useful economic life of the non-conformity.” Katarincic, Elimination of Nonconforming Uses, Buildings and Structures by Amortization-Concept v. Law; 2 Duquesne Univ.L.Rev. 1.
“The basic idea is to determine the remaining normal useful life of a pre-exist-ing nonconforming use. The owner is then allowed to continue his use for this period and at the end must either conform or eliminate it.” Note, 44 Cornell L.Q. 450, 453.
Supporters of amortization contend it is fair. “The useful life of the building or use to which the premises are devoted is determined and the owner has that length of time to conform. The loss he suffers if any is spread over a period of years, and he further enjoys a monopolistic position by virtue of the zoning ordinance as long as he remains. Amortization will eventually eliminate nonconforming uses.” Note, 35 Va.L.Rev. 348, 357.
As my quarrel is with more basic issues, I will do no more than point out in passing that almost all of the legislation which has come before the courts has not been within the definition of amortization. No effort has been made to provide a method by which the amortization period could be correlated to the actual remaining life of a particular type of structure or the particular use being eliminated. Fixed periods have been provided which have varied from one to thirty or more years. Note, 35 Va.L.Rev. 348, 356. Courts, without tests or guidelines, have held these periods reasonable or unreasonable on an ad hoc basis. It would be difficult, if not impossible, to explain why the useful economic life of an operating automobile salvage yard is limited to five years.
“In practice this spells confusion, instability, inability to diagnose what are legal rights, inconsistency, arbitrariness and discrimination in administrative and court decisions, and an avalanche of litigation. That Pandora’s box is opened, regardless of the best possible intentions on the part of all concerned. Nor is the judgment appealed from an unwarranted interference by the courts in the province of the municipal legislature. • It simply follows precedent from the beginning of zoning practice. The new rule has the additional infirmity that it opens wide new fields of discretion in administrative law without any workable standards by which it is to be guided.
“The lack of any principle in applying the novel theory of ‘amortization’ betrays a fundamental weakness in the theory. Zoning, *366 like other public programs, is not always best administered at the hands of its enthusiasts. The existence of nonconforming uses has spoiled the symmetry in the minds of zoning experts. It has bulked so large in this context that, desirable as the elimination of nonconforming uses may be, it has sometimes been presented as though it were more important than ordinary property rights.” Van Voorhis, J., dissent in Harbison v. City of Buffalo (1958), 4 N.Y.2d 553, 573 , 176 N.Y.S.2d 598, 614 , 152 N.E.2d 42, 53 .
II. The right to own and possess property carries with it the right to use and enjoy such property for lawful purposes and arbitrary governmental interference with its reasonable use and enjoyment is a taking of private property without due process of law and without just compensation contrary to the provisions of the federal and state constitutions cited above.
In Central States Theatre Corp v. Sar (1954), 245 Iowa 1254, 1258-1259 , 66 N.W. 2d 450, 453 , we reviewed our authorities relating to the aspects of due process of law pertinent here which hold the state may, under its police power, regulate but not prohibit or unreasonably restrict an individual’s right to operate a legitimate business. Its real purpose must be to protect the public health, morals or general welfare, and it must be reasonably required and suited to attain that purpose. It cannot masquerade as an exercise of the police power and arbitrarily invade personal rights and private property. It cannot disregard the constitutional guarantees.
This dissent will proceed on the premise that vested rights in property are being taken from the owner without compensation. The majority does not claim otherwise, but follows the cases which hold and the legal writers who maintain amortization is a reasonable method of regulating the use of property under the police power and, theoretically at least, examine the facts in each case to determine if the amortization period is a reasonable application under the particular circumstances. These authorities are cited in the majority opinion and it would serve no useful purpose to repeat them here. However, I will examine some of the leading authorities.
In 1929 two Louisiana cases gave early approval to the amortization principle. State ex rel. Dema Realty Co. v. Jacoby, 168 La. 752 , 123 So. 314 ; State ex rel. Dema Realty Co. v. McDonald, 168 La. 172 , 121 So. 613, 614-615 . In the latter case, the court said: “ * * * we take it to be well settled that any business operated or maintained in violation or in defiance of a zoning ordinance is to be regarded as a public or common nuisance.” This holding has been described as “More like Cossack interpretations of Muscovite ukases than utterances of a court operating under the benign provisions of the Magna Carta.” Fratcher, Constitutional Law-Zoning Ordinances Prohibiting Repair of Existing Structures, 25 Mich.L.Rev. 642, 644.
It is not uncommon to find language in the opinions pointing to elements in the eliminated use tending to make it a nuisance. The majority does so here, although there is no effort to enjoin this business was a nuisance. See Town of Grundy Center v. Marion, 231 Iowa 425 , 1 N.W.2d 677 . It must be remembered, however, that the cases do not base the constitutionality of the zoning law on the requirement that the business be an objectionable one. The Louisiana cases involved a drug store and a grocery store. Amortization periods have been constitutionally approved for a gasoline station, Standard Oil Co. v. City of Tallahassee, 183 F.2d 410 and a wholesale plumbing business, City of Los Angeles v. Gage (1954), 127 Cal.App.2d 442 , 274 P.2d 34 .
Most of the courts approving the amortization technique have adopted the reasoning expressed in City of Los Angeles v. Gage, supra, and Livingston Rock and Gravel Co. v. County of Los Angeles, (1953), 43 Cal.2d 121 , 272 P.2d 4 . The majority quotes from Gage in Division VI. The very heart of this approach to retroactive zoning is expressed in the fol *367 lowing sentence: “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 upon the relative importance to be given to the public gain and to the private loss.”
This analogy is of utmost importance to this line of reasoning as it enables the court to cite cases approving of the restriction of the future uses of real estate and limiting the right to make additions to and repairs of existing uses and structures as authority for the constitutionality of zoning ordinances terminating existing uses. In my opinion it will not bear scrutiny.
There is a vast difference in kind between the unexercised right to use real estate for some purpose in the future, which right may or may not ever be invoked and the exercised right to devote real estate to a lawful purpose, which right has been invoked at the expenditure of time and money by the owner. The implications and effects are not similar and the losses sustained by the respective owners are far different. Limitations on future uses deprives the owner of some prospective advantage only. The termination of an existing use necessarily results in an out-of-pocket loss to the owner.
The difference in degree is not between the restriction of present uses and future uses, but between the immediate termination of a lawful use and its termination at a fixed time in the future. “To our knowledge, no one has, as yet, been so brash as to contend that such a pre-existing lawful nonconforming use properly might be terminated immediately. In fact, the contrary is implicit in the amortization technique itself which would validate a taking presently unconstitutional by the simple expedient of postponing such taking for a ‘reasonable’ time.” Hoffmann v. Kinealy (1965), Mo., 389 S.W.2d 745, 753 .
Law review writers have acknowledged that questionable constitutionality of immediate retroactive zoning was one of the reasons for permitting nonconforming uses to continue under early zoning efforts. 35 Va.L.Rev. 348, 353; Villanova L.Rev. 1965-1966, 189, 190; Wisconsin L.Rev.1951, 685, 688.
Delaying the effective date of an unconstitutional act does not make it constitutional.
The latter part of the quote from Gage states that constitutionality “depends on the relative importance given to the public gain and to the private loss.” An individual’s right to due process cannot rest upon such a nebulous balancing of the scales by courts of various convictions and inclinations. If this test were all that is needed to satisfy due process, we could avoid the use of eminent domain in many situations. With proper planning property owners could be told that in five years their property will be taken for a public purpose without compensation. Why should the public pay to use property for water systems or reservoirs, sewage lines or disposal plants, highways or utility right of ways? Certainly these services are much more basic to public health, morals, safety and general welfare than zoning, but no one has yet suggested the amortization technique could be employed to take the back corner of an unimproved 40 acres for a pumping station or to run a utility line six feet underground across farm ground without compensation because the public need is ■ so much greater than the individual loss.
“It would be a novel proposition that a municipality can take private property for a public use without compensation provided that it does not take too much.” Dissent by Van Voorhis, J., in Harbison v. City of Buffalo, 4 N.Y.2d 553 , 176 N.Y.S.2d 598, 609 , 152 N.E.2d 42, 49 .
This brings us to an obvious contradiction in the reasoning supporting the amortization theory. The elimination of a business after a fixed period of time is said to be reasonable because the public need *368 outweighs the private loss. If this were actually the case, the public should be willing to accept the bargain of a slight burden for a great gain. On the other hand zoning advocates say eminent domain has not worked because the cost to the public is so great. If this is true, why should the individual property owner be forced to stand a substantial loss when the public is unwilling to pay for the gain it achieves at his loss?
The balance of public gain against private loss is weighed monetarily. No consideration is given to the ability of the owner to shoulder the losses. The cost of moving a junk yard would be a much greater burden to a small businessman struggling to get along than the loss of a large building to a multi-million dollar corporation. Monetary loss should go to the amount of compensation to be paid, not the determination of the right to compensation. The fact that damages may be difficult to determine has never been held to bar the right to damages.
Most of what has been said is not original. Many of the thoughts expressed as my own were previously stated in Hoffmann v. Kinealy, Mo., 389 S.W.2d 745 . This well written opinion examined the authorities closely before arriving at the result I believe proper here.
Additional thoughts with which I am in accord are expressed in the dissent in Harbison v. City of Buffalo, supra. As I cannot improve the language, I quote. The page citations are from 152 N.E.2d.
“Zoning relates to the future development of municipalities. Areas in cities that have already been developed cannot be zoned retroactively. That is the function of municipal redevelopment, which is constitutionally authorized by statutes directing payment of just compensation for property that is appropriated. * * * Retroactive zoning, as this clearly is, resembles slum clearance more than zoning, which is for the future. (176 N.Y.S.2d p. 608, 152 N.E.2d p. 49).
“The circumstance that this is a cooperage establishment or junk yard ought not to obscure that the principle of the decision applies to any kind of business which, due to lapse of time, has been overtaken by changes in the neighborhood. The principle of the decision applies equally to stores, shops or service organizations which are retroactively legislated out of existence by the abolition of prior nonconforming uses. If petitioners’ establishment is not secure against this kind of invasion, no one else’s business is better protected. The neighbors or the officials of a municipality in one year may look askance at a junk or cooperage yard, and in another year may frown upon the conduct of any other type of commerce or industry. The people who moved into petitioners’ vicinity and now find their business offensive may not be aware that the principle of the decision unsettles their own property rights, and that it may suddenly be used against'them in unexpected ways if agitation arises to legislate them out of business by a similar procedure. It makes little difference what the nature of their businesses may be. The smaller they are the more vulnerable they become to this kind of attack, which is based on misfortune of unpopularity. Democracy depends upon respect for the individual as well as upon majority rule. The relaxation of constitutional safeguards protecting commonly accepted personal and property rights, goes hand in hand with the multiplication of pressure groups. People should not be obliged to organize to preserve rights the safeguarding of which is the proper function of the law. The small manufacturer or merchant feels this acutely, since he ordinarily finds it more difficult to succeed in wielding organized power for his own protection when property rights depend upon the discretion of legislative bodies. No question is raised here concerning the good faith of the enactment or administration of this ordinance. Nevertheless petitioners find themselves confronted by the organized civil power of the municipality, * * *. If this part of the city is to be redeveloped, *369 it should be done through the enactment of a statute similar in principle to slum clearance acts, whereby just compensation can be paid for private property that is confiscated for a public use. Petitioners have well-recognized legal property rights which ought to be protected in court. (176 N.Y.S.2d p. 611, 152 N.E.2d p. 51).
“This theory to justify extinguishing nonconforming uses means less the more one thinks about it. It offers little more promise of ultimate success than the other theories which have been tried and abandoned. In the first place, the periods of time vary so widely in the cases which have been cited from different States where it has been tried, and have so little relation to the useful lives of the structures, that this theory cannot be used to reconcile these discordant decisions. Moreover the term ‘amortization’, as thus employed, has not the same meaning which it carries in law or accounting. It is not even used by analogy. It is just a catch phrase, and the reasoning is reduced to argument by metaphor. Not only has no effort been made in the reported cases where this theory has been applied to determine what is the useful life of the structure, but almost all were decided under ordinances of statutes which prescribe the same time limit for many different kinds of improvements. This demonstrates that it is not attempted to measure the life of the particular building or type of building, and that the word ‘amortization’ is used as an empty shibboleth.” ' (176 N.Y.S.2d p. 615, 152 N.E.2d p. 54).
The Ohio Supreme Court rejected the approach adopted by the majority in City of Akron v. Chapman, 160 Ohio St. 382 , 116 N.E.2d 697 , 700, 42 A.L.R.2d 1140 , 1144-45. They said:
“We are asked by the plaintiff herein to uphold the provision of a municipal ordinance which in effect denies the owner of property the right to continue to conduct a lawful business thereon, which use was in existence at the time of the passage of the ordinance and has continued without expansion or interruption ever since. If we do this on the ground that the provision is a proper exercise of the police power, then the right to continue to conduct other lawful businesses, similarly established and conducted on zoned property, may likewise be denied by legislative fiat under the guise of a proper exercise of the police power. * * *
“The right to continue to use one’s property in a lawful business and in a manner which does not constitute a nuisance and which was lawful at the time it was acquired is within the protection of Section 1, Article XIV, Amendments, Constitution of the United States * *
III. The majority states eminent domain could not be used in Iowa as it is required that property be taken for a public purpose. Zoning depends upon public purpose for its constitutionality. I have no doubt that it the legislature provided for the buying of nonconforming uses by eminent domain, it would be constitutional. The fact that eminent domain has not at this time been authorized for this purpose does not make retroactive zoning of this nature constitutionally permissible.
IV. No question was raised as to the power of the county to provide for retroactive zoning under the general enabling act chapter 358A, Code, 1966, and the majority properly makes no reference to this proposition. However, I do not feel it is improper to point out that there is no specific authorization for the elimination of nonconforming uses in the statutes. Although the absence of such provision has given the legal writers no difficulty, I question whether the Iowa legislature intended to authorize the counties to confiscate property rights. It seems to me that such an invasion of private property should be specifically authorized rather than implied from the general enabling act.
I am puzzled by the eagerness with which some courts and legal writers are willing to take an individual’s property for the *370 benefit of the general public without compensation when there is no suggestion that existing use constitutes a nuisance. It seems to me to run counter to other recognizable trends in the law. An individual’s personal constitutional rights are being protected with zeal and fervor, yet, “amortization” permits vested property rights to be confiscated. The trend in tort law is to remove the burden of the injury from the victim and spread the loss on a larger segment of society, but “amortization” saddles the loss on the innocent victim when society itself is the beneficiary. At a time when the rights of the poor and disadvantaged are being given recognition and potency “amortization” strikes at the small, unpopular and unorganized.
I would reverse.
LARSON, MOORE and BECKER, JJ., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855225. Public record. Not legal advice.