*1 original years sentencing, state but two
later, and modified the sentence. We ex- AMES, Iowa, Plaintiff, CITY OF plained delay placed that the the defendant category “outside of that of cases for legislature COUNTY, Iowa, opportu- which reserved an STORY and Leslie T. Beck, nity for reconsideration of sentence.” Id. Defendants.
at 208. No. 85-1578. previously We have stated that section Supremе Court of Iowa. “recognizes 902.4 a time limitation power of the judg- amend a final Aug. ment which otherwise conforms to stat- Sullivan, ute.” State v. 326 N.W.2d (Iowa 1982). We held in Sullivan this
“that statute authorizes a new or sub-
stitute sentence for a criminal defendant orders,
only if the court first ninety within confinement,
days of the defendant’s
the defendant be returned to court.” Id. teachings Johnston Sul only
livan are district court has felony to reconsider a sentence if speci
it orders within reconsideration period begins
fied time to run with any commencement of sentence. For a
defendant who is confined at the time
sentencing, period commences immedi
ately following imposition addi
tional We no sentence. reason dif felony
ferentiate between a sentence and a respect.
misdemeanor in this sentence
Consequently, we conclude that the possess authority
district court did not
reconsider Kness’ sentence under section days because more than thirty
903.2
elapsed sentencing between additional the reconsideration the additional
sentence. holding, view need not
consider the second contention con- State’s
cerning of the court to order
a concurrent sentence for a defendant who prison
is confined in when he was found
contempt of court.
The reconsideration of Kness’ sentence authorized section 903.2. The
petition for writ certiorari is sustained.
WRIT SUSTAINED. *2 Ames, Klaus, Rihggenberg, by adjustment. of The Beth the board board
John R. objections hearing by acted two after plaintiff. for property their groups: those who feared Monte R. A. Hutchison and Hanson Robert by impaired nearby values would be the Winick,Graves, Brown, Donnelly, Basker- of plant those who feared and downstream Schoenebaum, Moines, Mary & Des and ville on their health and welfare. adverse effects Richards, Atty., E. Co. for defendants. Be- Management Flood Permit. The REYNOLDSON, C.J., by Considered proposed site lies within the cause the flood LARSON, HARRIS, McGIVERIN, and plain property Skunk River of the the was CARTER, JJ. flood control subject plain provisions to the (1985). section 455B.276 of Iowa Code Un- HARRIS, Justice. department der that section the Iowa of Ames city The seeks construct air, water, management waste corpоrate its plant outside disposal waste (DWAWM) given authority regulate construc- city proposed limits. and its The plains but construction flood del- County. The Story tion site are within egate county. the a local Del- permits city’s for applications construction egation County of this to Story county and this were refused the had in fact occurred. Admin. Iowa litigation dispute, pitting The followed. Code 75.7. § another, against government one local the accordance with DWAWM’s del- city- question of whether presents the regulations egation county adopted the subject county zoning property is owned developments plains. control on local flood might that it regulations. Our answer regulation city such Under one was might be, the determination or required special permit to secure a use conflicting upon inter- made plain permit before a flood could be issued. governments. local We ests the two city applied permit The for this but was proceed- reverse remand for further administrator, county defend- denied ings. Beck, the city ant Leslie T. because of the The door zoning permit. failed to obtain by two plant in effect bolted interrelat- brought city thereafter this suit The keys to were two these ed locks. There declaratory judgment seeking a county possessed locks both requiring per- a conditional use ordinance key them. was the conditional use One applied mit and invalid as be declared void permit, routinely county zon- demanded sought city. city The also writ of key ing ordinances. second involved compelling county grant mandamus project on a proposed of the location permit. plain management flood proposed plain. plant Because flood appеal denied trial court relief plain would encroach on flood followed. River, city for a Skunk permit. management flood governments Disputes I. between local kind neither Story Permit. matters of this The Conditional Use frequent altogether unique. County’s zoning pow- holds the nor It would commission inevitable, given expanding seem na- the use regulate er activities, government corporate any city. ture of local outside limits zoning. arise in matters of Under this conflicts should See Iowa Code 358A.3 differing tech- Story County adjust- courts have devised authority the board resolving ment, 358A.10, niques or tests for these con- organized under section The most method of res- requires permit use flicts. traditional ordinance conditional governmen- apply the proposed olution has been to before a structure such as city tal-proprietary test. Under this plan can erected. When governmental apply, asks us to permit for a conditional use it was denied regulations unit); if 35.07[1], is immune from at 35-61 proposed property (listing use “municipal consti- cases where functions “governmental” gov- sewage, tutes a garbage disposal, function. The such as and the immunity operation supply ernmental doctrine extends to of water facilities have municipalities exercising categorized as both McQuillin, proprietary functions. 8 jurisdictions.”). The Law Munic in different *3 (3d ipal Corporations 25.15 ed. rev. § The governmental-proprietary distinction 1985). If, however, ácts in a sharply years, has been criticized in recent “proprietary” capacity, subject it remains largely because it to contradictory has led Note, regulations. to the Governmental relatively See, results in similar situations. Immunity Zoning Local From Ordi City Johnson, e.g., Lincoln v. 257 N.W.2d nances, 869, (1971). 869-70 84 Harv.L.Rev. (S.D.1977) 453, (criticizing 457 test because following A provides commentator particular “classification a function guidelines distinguishing gov between vary jurisdiction from jurisdiction”); to ernmental and proprietary functions: City Fargo v. Township, Harwood governmental A function is involved 694, (N.D.1977) 256 N.W.2d 696 (noting pursuant to municipality when the acts that test has “come under attack for obligations and in im- furtherance vaguеness difficulty application, as posed legislative mandate. func- there are no clear rules determine to when however, proprietary, tion will be deemed governmental one”). a function is a Other it is of permissive when nature —that shortcomings of the distinction between is, political has the unit but governmental and proprietary functions duty perform not the that act. have also been noted both courts and See, Note, commentators. e.g., Rohan, 5 Govern Zoning Land Use Controls Immunity Zoning, mental From 22 B.C. 35.07[1], at 35-60 § 783, that, (1981) (noting L.Rev. 793-94 be validity There is at least some concept cause distinction derives from a past contention our that own cases sovereign immunity, used to tort limit applied governmental-proprietary have inappropriate has been criticized as for re Compare City test. v. Da- of Bloomfield solving disputes). zoning District, County vis Community School 900, 904-07, 909, II. Because of 254 dissatisfaction with the Iowa 119 N.W.2d analysis, (1963)(school governmental-proprietary courts subject 912-13 district is not turned other have tests determine municipal zoning prоhibit which would governmental entity when a should be gasoline storage facility of a granted immunity zoning from a ordinance. property) school-owned with Cedar (1) applied: Four other have tests Rapids Community School District sovereign” test; (2) “superior the “eminent 212, City Rapids, 252 Cedar Iowa test; (3) “statutory guidance” domain” (1960) (school 106 N.W.2d 659 district (4) “balancing of interests” оrdinances, subject city building as test. zoning ordinances, in distinguished from
renovating constructing school build- One commentator has described the “su- ings). perior sovereign” test follows: as superior jurisdictions applied gov- sovereign presumes
Other have [The test] ernmental-proprietary analysis agencies superior posi- occupying to similar govеrnmental hierarchy facts have are varying reached conclu- tion Annot., regulations generally zoning sions. 59 A.L.R.3d immune from enacted See (1974)(collecting govern- government aby cases where lower echelon of unless applied statutory mental-proprietary express language to de- there is distinction governmental entity pro- сontrary. presumption cisions which is based poses facility disposal agencies to establish a waste on the rationale that have state- governmental within limits another and responsibility wide automatically exempt agency Neverthe- does not transcends local boundaries. less, zoning unit cannot fla- restrictions that such ex- grantly disregard restrictions emption explicitly provided must be Where of land uses. Rohan, its determination 35.07[4], statute.” at governmental ac- reasonableness 35-68—35-69. subject question, presump- tion is foregoing provided III. The alternatives immunity can be tion of rebutted. improvement or no the tradition- little over 35.07[2], su-pra, at 35-62—35- governmental-proprietary al test. Henсe however, are, practical difficul- There increasingly turning courts determining a hierarchical ties inherent in “balancing analysis in deter- of interests” agencies. As a ranking mining governmental body whether a to have been appears result the test immune from a ordinance. The jurisdictions. minority of only supreme Minnesota a “bal- Note, Lo- Immunity From Gоvernmental ancing analysis in Town interests” *4 of Ordinances, 84 Harv.L.Rev. at Zoning cal Rochester, v. City 293 Minn. Oronoco of (“ authority’ political in the ‘[Sjuperior 878 468, 197 426 In that N.W.2d case supe- necessarily imply hierarchy does sought permit the Rochester a uses.”). allocating in land ability rior operate sanitary the a landfill. courts to used some Another test grant рer- the The commission refused to governmental entity a determine whether mit, but the district court ordered that be zoning ordinance is is immune from a affirming issued. trial court the test test. Under this “eminent domain” specifically court supreme Minnesota power condemn is any body with the test, jected governmental-proprietary zoning restrictions. immune from adоpting “balancing of interests” instead a S.W.2d Kopp, ex rel. v. 330 State Askew analysis: (Mo.1960); 882, County Board 889 Seward exigencies present The matter Seward, City Commissioners ... illustrate the core wisdom that 266, 274-75, 242 Neb. N.W.2d general danger in too readi- rule and (cases (1976) domain the- applying eminent ly assuming enlightenment where none has also ory). The eminent domain test may implеmentation in fact exist sharply impractical as criticized been particular zoning policy. of a local either a result has been oppressive and as Therefore, adopt balancing-of-pub- a we in recent or “watered down” abandoned test for the resolution con- lic-interests Rohan, 35.07[3], at years. 5See flicts which аrise between exercise (criticism of has led to 35-66—35-67 rule agencies by governmental police of their court “requires the “rule of reason” which right of domain. and their eminent the con- the reasonableness of to examine preferable is to a adherence less focusing demning authority’s action simply “general rule” based on flexible political geo- upon the nature and opposing parties rather the form of the use.”). graphical context of of their conflict. than substance has A third test which N.W.2d 429. For Id. at at “statutory disputes is the zoning immunity thorough from other discussion cases approach Under guidance” test. have a bal- jurisdictions which look statutes which authorize for сourts ancing of interest 35.- perform a certain 35-72; at 22 B.C.L.Rev. at 07[4][5] 35-69— a statute use'planning function. Such 796-807. superior to a local usually held will be tradi- arguing Those in favor of the more As one commentator zoning ordinance. do however, generally tests so on the basis of noted, ... tional few courts has “[a] they can grant relative with which statutory easе taken have the view resisting sug- employed. city, specified function perform gestión adopt conflicting of in- interests must be terests test contends it accommodated. they Where cannot be ac- commodated court to resolve the super regulatory
would make the court dispute, weighing interests, after agency. on Under such a test сourt greater public good. the basis of the weigh would the need for use in question, upon zoning plan, the effect parties At trial on may remand the make neighboring property, environmental im- showings support of their contentions factors, pact and other relevant and then the test we adopted. under have permit decide whether a should be is- AND REVERSED REMANDED. sued. that, although We are ap- convinced All except J., Justices concur CARTER, plication may of the traditional tests dissents. who courts, easy they litigants. are hard for CARTER, Justice (dissenting). present gives a graphic example. case I dissent. The presents issue this case governments Both local involved seem to placed whether rеstrictions or conditions proceed from the loftiest motives and in land use county zoning ordinances the public proposed plant interest. The against be enforced city-owned property lo- some an public location is obvious necessi- cated outside the city’s corporate bound- ty. The environmental concerns of both In endeavoring aries. ques- answer this governments unquestioned are factors of tion, departs long-recog- from the importance. resulting conflict should salutary nized and principle that land use *5 perfunc- not turn on mere chance or on the regulation through zoning legislative is a tory application of some test which is em- corollary matter. As a to that principle, ployed merely is simple. because it judicial zoning role in should be limited legislature provides Until the some applying to law proper which the legis- clear adopt direction otherwise we the bal body opinion lative has established. The ancing zoning to interest test resolve completely rejects approach. the court disputes govern that arise between local It makes existing no effort to divine the ments. legislative policy applicable types to these disputes. judges Instead it entrusts to apply IV. The trial court here did not regulating on an ad basis any ruling hoc the task of test on the motion to use. adjudicate points. ruling simply law Tts county’s zoning stated that “governmental-proprietary” proposed over the site would remain “ex- rejected by “eminent domain” tests the ma- property by tant” unless the is annexed premised that, jority theory are both on the city. The trial court concluded this meant policy law, governmental under the of the county require city could obtаin per exempt bodies are se regu- permits beginning before agree I lations. with the court that this plant. of the approach is flawed. Offensive land uses are no less offensive when undertaken Resolution under the mean, public bodies. This does not how- adopted
interests test we have will be more ever, that courts should make the choice legitimate public complex. The interests of proper land what use should That is be. city county recog both the and the must inherently legislative determination. weighed nized balance. The can county “superior sovereign” “statutory have no absolute veto over the placement plant. guidance” construction or of the On tests discussed the court’s proceed opinion permissive the other hand the cannot are formulas for county’s deciding zoning oblivious of the They zone controversies. county corporate all juridical postulates ig- lands outside bound which courts cannot be, To they deciding aries. whatever extent can all nore cases under rule superior sovereign doctrine sim- law. The must) (as an inferior
ply recognizes legislative jurisdiction
sovereign is without superior affairs of a sover- regulate statutory guidance sim-
eign. The doctrine recognition that, because
ply reflects the issue, beginning legislative
zoning is a resolving zoning disputes between
point in legislative search for the
public bodies is a applicable or underlying the statutes
intent
ordinances. dispute, seeking present resolve the follow the same
I believe this court should traversed. This
path the trial court zoning power
quires tracing grant of legislature
down from the state At supervisors. least one
county board of questions must then be perhaps two Gritzner, E. Redo Za- James M. power is whether the The first answered. cherle, Moines, complainant. Des coun- entrusted regulate land use Moines, Thomas, pro Frank Des se. to in- legislature was intended ties regulate city-owned
clude question is If answer to this property. REYNOLDSON, C.J., Considered no, present must decided case then McGIVERIN, HARRIS, LARSON, and If answer to the city. favor CARTER, JJ. question yes, then the court foregoing use whether the land must determine CARTER, Justice. employ in the city seeks to which the contrary applicable present case proceeding presents no disciplinary trial court ordinance. dispute. Respondent, Frank Thom- factual *6 questions in the of these answered both as, attorney practice admitted to an I presеnted, the record affirmative. On May, January, 1975. From state uphold determination. would March, 1979, employed until he was attorney in Aide
as a staff the Citizen’s Office, agency. employed, While so a state money he was entrusted with sum rightfully belonged foreign four nationals who were distributees a dece- Aide dent’s estate. The Citizen’s Office COMMITTEE ON PROFESSIONAL assisting the task of undertaken THE ETHICS AND CONDUCT OF proper of these executor transfer ASSOCIATION, BAR STATE IOWA foreign countries distributions where Complainant, the distributees resided. working respondent on this While THOMAS, Respondent. Frank project, $2021.24 he converted 86-689. No. pay personal use to involved to his $7684.95 Supreme of Iowa. Court parents. expenses family his of his Aug. The Grievance which heard Commission respondent’s complaint recommended that suspended. After a careful license be facts, are convinced that view of the