*1 CERRO OF BOARD SUPERVISORS OF Iowa, Appellee, COUNTY, GORDO Vierkant, and Harm
Robert MILLER J. Parts, Chazen’s Auto d/b/a Appellants. No. 53661. Supreme Court of Iowa.
Sept. 5, 1969. Union, ap- Buchheit,
Mark D. West pellants. Robinson, Mas- Pappas
William Vern City, appellee. RAWLINGS, Justice. constitutionality appeal involves county zoning provisions of a
of certain noncon- requiring discontinued property within five forming use of after its enactment. plaintiff
By equity board action enjoin defendants’ supervisors sought an auto- their land continued use of expir- after wrecking mobile establishment period. prescribed amortization ation of the ordi- contending Defendants resisted them, dep- nance, applied constituted without rivation of law. plaintiff and de-
Trial court found affirm. appeal. We fendants
359
prohibited
shall
and unlawful use and
was
case
relevant the
here
To
extent
**
discontinued;
stipulated
these
trial court on
submitted
facts:
injunction
plaintiff
If аn
is granted as
requests,
wrecking
County
defendants’ automobile
Gordo
A
Cerro
Exhibit
is
operations
on the above described
effective
which became
Zoning Ordinance
accordingly
must be
terminated without
4, 1962.
June
payment
compensation.
operate a business
own
Defendants
Additionally trial court found
on that real
defendants’
Parts
Auto
known as Chazen’s
substantial,
business activities were
but
“Beginning at
on
as:
estate described
North,
the other hand
evidence
presented
was
Township
96
12
center of Section
disclosing
P.M., thence
their use of the land involved
5th
Range
21 West
any
buildings
sizable
or
investment
the Northeast
line of
along the west
north
improvements.
Section,
rods,
other
(NE
Quarter
¼) of said
angles a distance of
thence East at
Despite the fact defendants assert 17
right angles to
rоds,
at
thence South
22.87
propositions
upon
reversal,
relied
for
their
Quarter
of said Northeast
line
South
argument
depriva-
is confined to claimed
along the South
(NE ¼)>
West
thence
without due
of law.
¼) to
Quarter
(NE
line of
Northeast
said
1,
Section
Amendment
United States
part
except
place
beginning,
Constitution,
I,
and Article
section
of Iowa
the State
which has
deeded to
the Iowa Constitution.
highway
use.”
equity
I.
This case stands in
challenged or-
adoption
Prior to
accordingly
de
Rule
reviewable
novo.
engaged
dinance defendants were
of Civil Procedure.
Rules
enterprise, and intention-
operation of said
scope
our
is the
Although the
review
than five
ally
operations more
continued
entire
it will be confined to those
years
the ordinance.
after еnactment of
propositions
argued.
properly relied
thereof defendants’
terms
Under
Third,
v.
344(a) (4)
R.C.P.;
Rule
Braden
is described
property is located what
Co.,
Supervisors
Board
of Pottawattamie
In material
A-Agricultural District.
Zone
Iowa,
123, 124; Quint-Cities
ordinance,
XVI, provides :
part the
Section
Maas,
v.
Petroleum Co.
Acceptance
and B-W
building
land
N.W.2d
or
“The
lawful
489, Saluri,
Corporation 258 Iowa
time of the enactment of
existing
361
country
protection
out the
481;
Angeles
City of Los
8 N.W.2d
contemplated.
38-
values established and
P.2d
Cal.App.2d
274
Gage, 127
Am.Jur., Zoning,
page
Omaha,
Neb.
58
39;
section
City of
v.Wolf
* * *
507-509;
tendency
Mu-
it is
‘The
McQuillin,
stated:
modern
8A,
uphold zoning
sec-
is to
nicipal
regulations
Corporations,
Rev.Vol.
form-
353;
Zoning
erly
have been
25.296, page
rejected
arbitrary
C.J.S.
oppressive,
Law or
objections
and many
Constitutional
cases
page
§
C.J.S.
174-198,
889-973;
Am.Jur.,
validity
pages
restrictions
§§
ground
unreasonable,
16-31,
949-960;
pages
arbi-
Zoning, sections
Law,
trary,
oppressive,
sections
Am.Jur.2d,
have been overruled.’
Constitutional
290-292,
perhaps
Our view here
pages 563-572.
falls within
persons
for the
those trends
protection
defendants,
attack
in their
means
*4
and established
In
values.
heavy
a
at hand assumed
on the ordinance
Steinberg-Baum
Country-
case of
& Co. v.
burden,
to constitution-
and
doubts
man,
923,
supra,
930,
247 Iowa
77 N.W.2d
be resolved
ality
enactment must
of the
recently
approved
recognized and
we
its favor.
upheld
‘promo-
the trend and
of
purpose
prosperity
general
of
and the
welfare’
III.Zoning
generally
been
referred
application of police
power.”
municipal corporate
a
division of
districts,
area
separate
into
zones or
and
358A.3-358A.5,
See also Code sections
type
prescribing
permitted
land
of
uses
2,
Zoning
page
and
101
§
C.J.S.
in each such
district
zone or
to subserve
‘nonconforming use’
IV.
“The term
is
health, safety,
of
welfare
morals or
employed
zoning,
of
for the
law
Rhyne
community.
Municipal
on
See
part,
refer
most
to a use which
Law,
32.1, page 811; McQuillin,
Section
general
only
reg-
does
conform to
8,
Municipal Corporations, 1965 Rev.Vol.
a
governing
zoned
or restriction
ulation
12;
25.01, page
Zoning
section
101 C.J.S.
lawfully
at
area but which
existed
1,
660;
Am.Jur., Zoning,
page
58
section
§
regulation
went
time that the
or restriction
1,
Phrases,
page 940; and 45 Words and
with-
and has
to exist
into effect
continued
Perm.Ed., “Zoning”.
time.
In
lеgal abandonment since that
out
words, it
a
that existed and
Also,
purpose
as to
and recent
trends
became
lawful when the restriction
was
court stated
Plaza Recreational
and which has continued
exist
effective
City
City,
of
Center v.
Sioux
Municipal
McQuillin,
since that
time.”
763: “Preservation
8A, section
Corporations, 1965 Rev.Vol.
neighborhood
the character
25.185,
Rhyne on
Mun-
page
Also see
zoning regulations.
a
It
valid reason for
Law,
and
icipal
32.26, page
101
section
McQuillin Municipal Corpora-
said
on
Zoning
page 936.
tions,
supra,
§
page
at
59
‘zon-
Vol.
C.J.S.
ing
promote
regulations
general
welfare
apparent
are here confronted
it is
So
they
and
the value
are valid where
stabilize
nonconformity
the contro-
with a
under
property, promote
pеrmanency
county plan,
constitutional
and the
verted
surroundings
desirable
and add
home
phase
or
municipality
amortize
the happiness
comfort of citizens.’
period of
within a fixed
it
of existence
out
supra,
Jester,
We also said in Anderson time.
page
Iowa,
page
of 206
at
457
357
the cases
survey
221
N.W.
‘Reasonableness
A brief
N.W.
V.
354]:
[221
noncon-
disclose
regulation depends
or
condi-
in this area
on
authorities
effect,
problem since
existing
it
have
put
forming
tions
when
into
uses
**
origi-
It was
power
zoning.
inception
under which
few, and
through-
inally thought such
would
zoning exists has been extended
uses
naturally
yet
eliminate
themselves
devised is to amor
time,
through
passage
offending
with restric-
tize the
building,
structure or
expansion.
during
But
operation,
tions on their
prohibit
business
the owner
increasingly
past
operator
maintaining
two
it has become
decades
from
it after ex
have
pre-existing
piration
designated
nonconformities
evident
date.
away.
tendency
to fade
On
natural
support
foregoing,
City
see
contrary
appears
tend to continue
Martin,
Seattle v.
54 Wash.2d
342 P.2d
monop-
prosper
because
artificial
602, 603;
City
Mayor
Grant v.
Council
However,
oly
the law.
them
accorded
Baltimore,
363;
A.2d
Md.
remains,
and ultimate
the basic aim
it still
Angeles Gage, supra; Rhyne
Los
certain
zoning is
confine
purpose of
Law,
Municipal
through
sections 32.26
specified
and uses
buildings
classes of
32.33, pages 903-922; McQuillin, Municipal
incon-
uses are
Nonconforming
localities.
Corporations,
8A, sections
1965 Rev.Vol.
In an effort
objective.
with that
sistent
25.189-25.195,
36-46;
pages
19 Case W.
to conformanсe
change nonconformance
323;
1042; 24
Res.L.Rev.
Md.L.Rev.
for the
regard
speedily
possible, with
323;
280;
Mo.L.Rev.
57 Nw.U.L.Rev.
of the private
interests
legitimate
Syracuse
L.Rev.
and Annos.
A.L.
public,
general
and the
R.3d 1134.
means
attempted different
bodies
*5
uses.
undesired
eradicate
VI. We are satisfied
board of
plaintiff
supervisors
statutory
had
and constitution-
include, (1)
employed
so
methods
The
authority
opera-
al
classify
defendants’
domain;
by
eminent
use of
condemnation
nonconforming
tions as a
usage.
nuisance;
for-
(3)
the law of
invoking
(2)
nonconforming uses
resumption of
bidding
However, there has been a conflict
abandonment;
period of nonuse
a
after
adopted
by
the views
various courts on
limiting extensions
prohibiting or
(4)
power
the
of municipality,
adop
a
the noncon-
amortizing
rеpairs;
(5)
ordinances,
zoning
tion of
to terminate
time.
of
period
a reasonable
formity over
nonconforming
upon expiration
uses
of a
prescribed period.
would
domain
eminent
power
But the
is
it
in that
state
in this
inadequate
be
disclosed,
But
judi-
as heretofore
recent
use.
only
taking
restricted
cial
pronounced
decisions reveal the
trend
City of
Supply Co.
Welding
& RRSee
is toward elimination of nonconformities
N.W.
Moines, 256 Iowa
Des
by
process.
the amortization
the
And
test
Also,
L.Rev.
13 Drake
666, and
2d
commonly employed by
most
courts
deter-
de
the
falls short
nuisance
law of
the
liquidation
mining reasonableness
non
a troublesome
objective because
sired
period
upon
balancing
based
a
always create a
use does
conforming
good аgainst private loss. This unavoid-
nuisance,
though
traditional
common
ably necessitates an examination of the
zoning purposes.
nonetheless violative
presented
factual situation
in each case.
Bluffs,
City
Keller v.
of Council
one more
Pursuing
subject
at hand
N.W.2d
A.L.R.2d 251.
it is
ordered immediate
step
evident a court
theory,
applic-
cessation on
nuisance
again
City
Here
we refer
of Los
in-
any concept,
most
able
under
Angeles
supra. There,
Gage,
in stances more harsh and substantial
be
bar,
case at
certain nonconforming uses
plan.
amortization
a reasonable
were
be
discontinued
five
within
adoption
An
after
Finally,
zoning
Los
as disclosed
ordinance.
Upholding
P.2d
Cal.App.2d
validity
Gage, 127
geles v.
proviso
said,
reasonably
cit.,
determined
court
loc.
stricting future uses may shut, a rea- car present trunk lids which fall or the termination of ready merely fall if How- period of time disturbed. sonable ever, constitutionality depends on another and more subtle criticism of degree, and junked pub- importance given autos tend to create relative Zoning neighborhood presence gain blight. loss. The of old lic and to gives is to cars on the every piece property [highways] streets it affects applies neighborhood shabby ap- a in that it and rundown extent retroactive some This, pearance. turn, secondary time property already at the creates owned regarding reactions the ordinance. cleanliness and care date the effective given neighborhood by a existing uses within rea- its residents.’ elimination of Committee, taking Report Advisory of the to a time does not amount sonable Junk necessarily Disposal Project, sponsored restrict Auto New nor does Hampshire Municipal be used Association New that it cannot the use of so Hampshire Fund, p. (October Use of rea- Charitable any purpose. 1966).” provides an scheme amortization sonable con- equitable means of reconciliation Spurgeon And in v. Board of Commis- of due flicting in satisfaction interests sioners, 798, the 181 Kan. 317 P.2d requirements. a method of As upheld validity year of a two court nonconforming uses it eliminating existing wrecking for removal of car establishment use, allows junk yard а nonconforming use un- opportunity to make new affording an der a ordinance. loss plans, partially at least offset suffers, if he might regard
he
suffer. The loss
the foregoing
With
see also
years,
spread
period of
out over
Annos. 22 A.L.R.3d
monopolistic position
enjoys
he
stated,
VII. For reasons heretofore
de-
long
as he
virtue
*6
termination as to
reasonableness
period is rea-
If the amortization
remains.
questioned
year
five
amortization
small
to the
loss
sonable
vision dictates a
of the factual
consideration
pub-
compared
with the benefit
when
presented.
situation here
eventually be
Nonconforming uses
lic.
will
body may
well
eliminated. A
aforesaid, the record
As
discloses defend-
effect
that the beneficial
conclude
salvage
operated
ants owned and
their auto
community
elimination
eventual
prior
passage
business
the contested
nonconforming
all
alia,
which,
oper-
prohibited
inter
ordinance
individ-
plan
amortization
more
offsets
salvage yard
ation of
area
auto
ual losses.”
defendants,
A-Agricul-
occupied by
Zone
Goffstown,
existing junk yards
It
accorded
tural.
also
Lachapelle
v. Town
In
years
that
area five
discontinue
22 A.L.R.3d
225 A.2d
N.H.
At
operations.
the same time conduct of
nonconforming
permitting
an ordinance
permitted
heavy
such a
in-
business was
yard
junk
land
a motor vehicle
districts,
section 14
dustrial
created under
was
only
year after its enactment
Defendants have inten-
There,
review
enactment.
an exhaustive
after
upheld.
tionally
operations
their wreсking
continued
noncon-
the elimination of
zoning and
beyond
period.
the fixed limitation
formities,
McCray supra, interest. It is wish orderly “We do not essential cit., growth 843: of our bur- loc. Supporters contend of amortization contributes to geoning communities and building life fair. “The useful general health, morals, safety premises are devoted is use which the However, confronted are now welfare. that length determined and the has which time with a for the first of time to conform. The loss he suffers nonconforming use a lawful eliminates spread years, period over a period of time under a fixed after enjoys monopolistic position by he further legislation takes my opinion such power. In long virtue as he law аnd process of property without eventually remains. Amortization will Fifth in compensation violation of Note, eliminate nonconforming uses.” the Consti- Amendments and Fourteenth Va.L.Rev. and sections States of the United tution I, the State Article Constitution my quarrel As issues, is with more basic of Iowa. I will do no more point out in passing that a forgetting danger are in “We legislation almost all of the which has strong improve desire to come before the courts has not been within achiev enough to warrant condition is not the definition of amortization. No effort than the by a shorter cut ing the desire has provide been made a method which way paying for constitutional period amortization could be correlated Pennsyl in change.” Mr. Holmes to the actual remaining Justice partiсular life of a (1922), U.S. vania Co. v. Mahon Coal type of structure particular or the being 28 A.L.R. 67 L.Ed. 43 S.Ct. periods Fixed pro- eliminated. been 1321, 1326. vided which have varied thirty from one to years. Note, or more 35 Va.L.Rev. agree Judge Hutcheson’s statement with Courts, guidelines, without tests or opinion Standard dissent his have held periods these reasonable or un- Cir., (1950), 5 City of Tallahassee Co. v. Oil an ad hoc basis. It would be doubt that “I am no 183 F.2d 414: difficult, if why not impossible, explain confiscatory admittedly sustaining this the useful economic operating life of an ordinance, principle, the general good automobile salvage yard is limited to five zoning, run into has been public interest years. con- ground, the tail of permitted to by caprice fiscation practice “In confusion, spells insta- dog judicial constitutiоnal wag bility, inability diagnose what legal tection.” rights, inconsistency, arbitrariness dis- crimination in administrative and court de- simplest terms, amorti I. its “Stated cisions, and an litigation. avalanche of contemplates compulsory termin zation That opened, Pandora’s box regardless expira non-conformity at the of a ation possible of the best part intentions on the time, specified period of a of all concerned. Nor judgment ap- is the equal economic to the useful pealed from an unwarranted Katarincic, interference non-conformity.” life of the *8 by the province courts in the of the munici- Uses, Nonconforming Build Elimination of (cid:127) pal legislature. It simply precedent follows ings and Amortizatio n -Con Structures from the beginning zoning practice. Law; ceрt Duquesne 2 1. v. Univ.L.Rev. The new rule has the additional infirmity re- “The determine the basic idea is to opens that it wide new fields of discretion pre-exist- maining normal useful life of a in administrative law any without workable is then ing nonconforming use. The owner standards which it guided. for this allowed continue his use and at the end must either conform “The lack of principle in applying the 450, Note, L.Q. eliminate it.” 44 Cornell theory novel betrays ‘amortization’ a fun- 453. damental theory. weakness in the Zoning, 366 always programs, majority opinion are cited in the and it
like
purpose
repeat
at the
of its enthu would serve no useful
hands
best administered
nonconforming
However,
them here.
existence
will examine
siasts. The
some
of the
symmetry
leading
in the minds
spoiled
authorities.
uses has
large in
zoning experts.
It has bulked so
early
In
two
gave
1929
Louisiana cases
that,
elimina
this context
desirable
approval
principle.
amortization
be,
it has
tion of
Realty
State ex rel.
Jacoby,
Dema
Co. v.
168
though it were
presented as
sometimes been
752,
La.
123
State ex rel. Dema
So.
ordinary property
important
more
Realty
McDonald,
172,
Co. v.
168 La.
121
Voorhis, J.,
in Harbi
rights.”
dissent
Van
So.
614-615.
In the latter
City
(1958),
son v.
of Buffalo
N.Y.2d
“ * * *
court said:
we take it to be well
N.E.2d
N.Y.S.2d
settled that
operated
business
main-
53.
tained in violation or in defiance of a zon-
ing
prop-
possess
regarded
The
own and
ordinance is
right
II.
to be
aas
or common
erty
right
it the
to use and en-
nuisance.”
holding
carries with
purposes and
joy
property for lawful
described as “More
such
like Cossack inter-
pretations
arbitrary
with its
governmental interference
Muscovite ukases than utter-
enjoyment
taking
operating
is a
ances
a court
reasonable use
under the benign
provisions
process
private property
Magna
Fratcher,
without due
Carta.”
compensation contrary
and without
to Constitutional
Law-Zoning Ordinances
provisions
Prohibiting Repair
and state con-
Existing Structures,
federal
stitutions
above.
Mich.L.Rev.
cited
Corp
Theatre
Central States
v. Sar
It is not uncommon to find language in
1254, 1258-1259,
(1954),
66 N.W.
opinions
pointing to
elements in
2d
our
re-
reviewed
authorities
eliminated use tending to make it a nui-
lating
aspects
of due
of law
sance. The majority
here,
does
although
so
may,
pertinent
hold
un-
here which
the state
there is no effort
enjoin
this business
regulate
der
power,
its
but
awas nuisance.
Grundy
See Town of
Cen-
or unreasonably
hibit
restrict an individual’s
ter Marion,
v.
given to Delaying the effective an uncon- date of loss.” stitutional not act does make it constitu- importance tional. to analogy is of utmost This reasoning it enables court this line part quote Gage The latter from the restriction
to approving cite cases constitutionality “depends states that limiting of real estatе future uses given public importance relative repairs of to and to make additions right gain private individ- and to the loss.” An authority and structures existing uses right upon ual’s to due cannot rest constitutionality zoning ordi- for the a balancing such nebulous scales my existing In terminating uses. nances by courts in- various convictions and scrutiny. opinion it bear will not test that clinations. If this were all satisfy process, in needed a kind between we could There is vast difference many real avoid the of eminent right use estate use domain unexercised future, proper right planning property which purpose in situations. for With some may and the owners could be told that in five not ever be invoked or public a their be a property real estate will taken for right to devote exercised compеnsation. Why purpose in- purpose, right which has been without lawful money expenditure public time should the to use for voked at pay sewage lines systems reservoirs, and effects by implications The water or the owner. disposal utility highways or plants, sustained are the losses not similar ways? Certainly far services respective different. these owners morals, public health, deprives the much future uses more basic to Limitations on advantage only. safety zoning, general but prospective welfare than some existing yet suggested use neces- The of an termination the amortization out-of-pocket technique take the employed be sarily an loss could results acres unimproved back an corner of owner. utility a pumping a run station between degree difference The underground line six farm feet across present and future the restriction of ground compensation because without termina uses, immediate but between the n greater much need is so and its termination a lawful use tion of individual loss. “To our time the future. a fixed has, that a yet, proposition been so brash “It would be novel knowledge, no one a municipality pre-existing law can take contend that such compensation provided might properly use without ful fact, take too the con Dissent immediately. does much.” terminated Voorhis, implicit J., amortization tech Van Harbison v. trary Buffalo, taking nique N.Y.S.2d validate 4 N.Y.2d itself simple ex N.E.2d presently unconstitutional pedient taking postponing such brings us contradic- obvious Kinealy time.” Hoffmann ‘reasonable’ tion in reasoning supporting the amor- Mo., S.W.2d 745, (1965), theory. tization a busi- elimination of acknowledged writers review ness after a
Law fixed time is said constitutionality of im- questionable need reasonable because the *10 outweighs the loss. If this were cooper- “The circumstance a that this is actually public age the the should be will- yard ought or junk establishment not accept slight the a bargain of to burden to ing principle obscure that the of the decision great other gain. applies On the hand zon- which, to kind of business say eminent domain has not ing time, advocates to lapse by of has been overtaken because the cost to the worked is so changes neighborhood. prin- The true, great. why If is the in- ciple this should equally applies of the decision to property be forced dividual owner to stand stоres, shops organizations or service which a substantial loss when the retroactively is un- legislated out of existence pay gain to achieves at willing the prior nonconforming the abolition his loss? is petitioners’ uses. not If establishment invasion, against this kind secure gain against pri- The balance of protected. is one business The else’s better monetarily. weighed is No con- vate loss municipality neighbors or the officials of ability given sideration to junk in at a year may look askance to losses. shoulder the The cost year yard, or cooperage in another moving junk yard be a much may upon the frown conduct greater burden a small to businessman industry. people type The commerce or struggling get along to than the loss of vicinity petitioners’ who into moved lаrge to a multi-million dollar cor- building may their offensive now business find poration. Monetary should go loss principle be of the decision aware that compensation paid, amount of rights, property own their unsettles com- the determination of the suddenly against'them may that it be used pensation. damages may The fact that ways unexpected agitation arises to held difficult determine never been by a legislate out similar them of business right to damages. to bar procedure. It makes little difference what origi of what said is not Most has been be. their The nature of businesses expressed Many thoughts they nal. are the vulnerable smaller more previously Hoff my attack, were stated in own this kind become to Kinealy, Mo., unpopularity. mann v. 389 S.W.2d based misfortune examined opinion well writtеn upon respect Democracy depends closely arriving re at the majority authorities before upon rule. as well individual proper here. sult I believe The relaxation safe- constitutional accepted guards commonly per- protecting am thoughts Additional with which I rights, goes sonal and hand expressed in accord are dissent multiplication pressure hand with Buffalo, supra. As Harbison v. obliged People not be groups. should improve language, quote. I cannot preserve rights safe- organize page from 152 N.E.2d. citations proper function of which is the guarding or mer- The small manufacturer the law. develop- future “Zoning relates ordinarily acutely, he chant this since feels municipalities. Areas cities that ment of finds difficult succeed wield- it more already developed cannot be ing organized power protection own for his retroactively. is the That function zoned when property rights depend upon the dis- municipal redevelopment, con- which is cretion of question bodies. No stitutionally direct- authorized statutes is raised concerning here good faith compensation for payment ing * * * of the enactment or administration of appropriated. this is, clearly zoning, this Retroactive ordinance. petitioners Nevertheless find zoning, themselves slum clearance more organized resembles confronted * * power civil (176 the future. N.Y.S.2d of the municipality, which is for *. part If city p. p. 49). N.E.2d be redeveloped, *11 the through the enactment ordinance and has continued it be done without should expansion interruption principle to clear ever If in slum since. similar statute ground do compensation can we this on the that acts, just the whereby ance proper property vision is a the police that con exercise of paid be for power, right then the continue to con- use. Petitioners to for fiscated businesses, similarly duct other property rights which lawful legal well-recognized prop- N.Y. established and conducted on (176 zoned protected court. ought to erty, may by legislative likewise be denied p. 611, p. 51). 152 N.E.2d S.2d fiat the guise proper under aof exercise extinguishing non- theory justify “This * * * power. the means less the more conforming uses right “The prop- little more to continue to use one’s It offers thinks about it. erty the lawful business and in a manner promise success than of ultimatе which does not constitute a and aban- been tried nuisance which have theories which periods acquired was lawful at the time it was place, the the first doned. protection the widely which vary in the cases Section so time XIV, Amendments, Article where Constitution of from different have been cited States * * the United tried, rela- States it and have so little has been structures, lives the the useful III. The majority eminent states domain theory to recon- this cannot be used that could not be it required used Iowa as Moreover these discordant decisions. cile property that purpose. be taken for a ‘amortization’, employed, as thus the term Zoning depends upon public purpose for it which carries meaning the same has not constitutionality. its I have no doubt that accounting. is not even It used in law or provided the legislature buying the by phrase, a catch analogy. It is by domain, nonconforming uses eminent argument is reduced to reasoning the it would be that constitutional. The fact been metaphor. only Not no effort has eminent has domain this time been theory this reported cases where made the purpose authorized for this does not make applied what is to determine has zoning of retroactive this nature consti- structure, all but almost life useful permissible. tutionally ordinances statutes were decided under limit for prescribe time the same question raised IV. No was many improvements. kinds of county different provide retro- power of attempted that it enabling is not general This demonstrates zoning under the active building particular 358A, Codе, the life to measure chapter act that the word type building, and no reference majority properly makes empty However, an used as shib- ‘amortization’ is do not feel proposition. I ' N.E.2d p. (176 point boleth.” N.Y.S.2d that there improper out it is p. 54). the elimination authorization for specific no Al- statutes. Supreme rejected The Ohio Court provision of such though the absence adopted by majority approach legal difficulty, writers given 382, 116 Chapman, of Akron 160Ohio St. in- legislature question whether 1140, 1144-45. A.L.R.2d N.E.2d con- authorize the counties tended to They said: property rights. seems to me It fiscate private property should such invasion plaintiff are asked herein “We im- specifically rather than authorized municipal provision uphold the of a enabling act. general plied from in effect denies the owner ordinance which puzzled to continue to conduct the eagerness I am with which thereon, willing legal which use was lawful business some courts and writers passage in existence at time of the take an individual’s general com- benefit of the without
pensation suggestion is no when there a nuisance. It
existing use constitutes recog- *12 counter seems to me run nizable An individual’s trends in law. rights being
personal constitutional fervor, yet, “amor- protected with zeal rights to permits tization” vested is to be confiscated. The trend in tort injury from remove burden of seg- spread larger on a victim and the loss society, ment but “amortization” saddles innocent when the loss on the victim beneficiary. At a time society itself is the poor rights disadvan- when taged being given recognition small, potency “amortization” strikes at unpopular unorganized. reverse.
LARSON, BECKER, JJ., MOORE join in this dissent. Administrator, RASMUSSEN, Estate
C. C. Rasmussen, Appellee, of Harold W. INSUR- LIFE NEBRASKA NATIONAL CO., Appellant. ANCE No. 53258. Supreme of Iowa. Court
Sept. Rehearing Denied Nov.