Relator’s property, upon which he desires to build a residence, lies along the easterly side of the Iowa River which runs southeasterly through defendant city. The proposed building site is said to be on a “scenic promontory” overlooking the river; but it is, nevertheless, more than two feet lower than, and 152 feet distant from, the nearest city sewer.
His deed describes “all available land” in city block 44, 264 feet deep, and part of an abandoned street adjoining. Most of the block lies under water. The part that would probably be called “available” is roughly described in the findings of the trial court as a “right triangle with approximately 172 feet of frontage on the street and 86 feet of depth on the left side coming down to a point on the right.”
Relator testifies that before buying the premises he went (in March 1952) to the then city mаnager, Forrest Duggan (since deceased) who informed him of the situation of the premises as to lack of access to sanitary sewer. He says: “I told him I would disregard buying the lot, I wanted a sewer. He told me it would be all right to put in a septic tank on that lot.” Relator bought the premises April 7,1952.
*560 Approximately two years later he and his wife decided to build a home. He consulted the State Sanitary Engineer as to the kind of septic tank he should put in and employed a contractor (Mr. Straley) who drew plans fоr the house. “Up to this time 1 had no reason to doubt but what I could put in a septic tank.” This was in 1954, apparently in March.
After “spacing the house on the lot” he and Mr. Straley went to the office of city manager and clerk, Paul L. White (who had succeeded Mr. Duggаn) and for the first time learned the city officials Avould not allow installation of a septic tank in lieu of connection with the city sewer. He testified Mr. White told him, “ ‘You can’t do it. If you don’t believe it, take us to court.’ ”
There seems to have been some discussiоn also as to other impediments under the zoning law, concerning size of lot and location of the house on the premises: “Mr. White said he could see no reason why we could not set the house closer to the front lot line. * * * Mr. White made no commеnt about the rear yard. * * * He said no more septic tanks could be put in, they were not allowing them.”
Relator then went to the city attorney “about a petition for sewer, which I presented to the city council and they acted on it a few days latеr.” He was informed they “refused it unanimously.” He says a councilman advised him: “It was the decision of the city council that I hook up to the existing sewer, Avhich ends approximately * * * 152 feet and 7 inches south of my lot.” That would have meant expense of sewer extension and a pump or lift in order to connect, estimated at over $1000, according to relator’s testimony. He says the estimated cost of septic tank was $201.95.
On March 12, 1954 (according to the trial court’s finding), he applied for a building permit: “At that time Ordinance 171 was in effect regulating the uses to which certain areas may be put and prescribing the size of lots, yards, etc. ® * * It is practically impossible for plaintiff to comply with these requirements unless the area under the river is taken into consideration, but аn appeal board within the city has authority to waive the requirements under certain circumstances.” (Relator fixes this date as March 18. The exact date is immaterial.) The real reason *561 for denying the building permit seems to have been the sewer situаtion. No appeal was taken by relator to the zoning appeal board.
After refusing relator’s petition that the city extend the sewer to his premises, the city council (on April 14, 1954) adopted Ordinance 198 which by its terms Avould deny relator any right to install а septic tank.
On or about March 31 he filed application a second time for a building permit. He says the first application had been marked “refused as per instructions by the city council.”
On this second occasion, according to his testimony, thеre Avas no discussion as to yard-clearance provisions of the zoning Ordinance 171: “* * * there never Avas any question about anything but the seAver question at that time.” The permit Avas again refused.
The prayer of relator’s petition is for a Avrit of mandamus ordering defendants to issue him a building permit. It was filed April 24, 1954, and denied on June 10. ¥e assume relator’s notice of appeal was duly filed though the record does not say so. It does however show several extensions of time for taking the necessary steps to bring thе matter here. It thus indirectly does show an appeal was taken by relator.
Appellant’s five numbered “propositions relied on” are not legal propositions. They complain of the city manager’s antagonistic attitude, assert that he “wavered” in his objections to the application for building permit until the ordinance regulating septic tanks could be passed, and claim that, when passed, it was so draAvn as to be effective only against relator’s premises.
Relator’s opening brief utterly fails to comply with rule 344, R. C. P. Its “Questions presented by this appeal” and its purported statement of the “Issue” give little help in getting at the legal controversy involved.
The “Statement of facts” following the “Propositions relied on” constitutes the only oрening argument. It includes fifty-eight pages virtually reprinted from the record, largely in question- and-ansAver form, Avith interspersed argumentative comments by counsel, not ahA’ays readily distinguishable from the testimony. These comments frequently begin Avith the Avords “Here again” *562 (or similar expression) which in such case do serve to'separate comment from record.
There is no formal or orderly brief of authorities as by rule required nor any formal argument of the “propositions”— only a somewhat rambling 18-page discussion of the court’s findings and conclusions and cases cited by the trial court, and a mention of some cases the trial court might have cited. The whole document (“Appellant’s Brief and Argument”) would probably have had to be stricken had a motion to that end been filed.
Nevertheless the reсord does reveal a situation that requires our consideration. We are not disposed to decide the case on formal technicalities. The trial court analyzes the issues thus:
“The city contends that plaintiff may not have a permit (1) because of the septic tank ordinance (No. 198) and (2) because the backyard is not as deep as the zoning ordinance requires.
“The septic tank ordinance in turn presents three problems: (a) can a council pass an ordinance which аffects applications then on file? (b) is the ordinance discriminatoryf and (e) did the city have power to enact the ordinance ?”
We shall here disregard (2) above since there was no appeal to the zoning board and there is no indication plaintiff desires a building permit except upon terms that would relieve him of the considerable expense of connecting with the city’s sanitary sewer, as at present situated. If the validity of Ordinance 198 is to be upheld as applied to plaintiff’s premises, it must be conceded the city zoning board could not waive its requirement; if on the other hand it be held that its denial of the right to install a proper septic tank is, under the circumstances, an abuse of discretion, then reasonable and necеssary waiver of lot requirements of the zoning ordinance might, in the discretion of the zoning board, permit plaintiff to build.
I. Occasionally through the record plaintiff seems to claim something for the fact that city manager Duggan in 1952 advised him “it would be all right to put in a septic tank in that lot”; and to claim he bought the premises on the strength of that assurance. This would fall far short of giving him a vested right
*563
or of estopping the city from changing its ordinance. See Huff v. City of Des Moines,
Of course all the city manager did or could do at that timе was to inform him of the city’s then policy. Such information could not estop the city from thereafter changing its attitude as to septic tanks. Plaintiff had no greater right than any other property owner to claim exemption from the effect of such сhange.
II. Nor can there be any serious question of a city’s right and duty to enact
reasonable
regulations concerning disposal of sewage in the interest of the health and cleanliness of the city, including power to require an abutting landowner to connect his buildings with а public sewer. Such regulation is a valid exercise of police power. Fenton v. Atlantic City, 90 N. J. L. 403,
III. A graver question presented pertains to the reasonableness of Ordinance 198. It provides: “Septic tanks may be installed only when the city sanitary sewer is not within 300 feet of the nearest point of the lot upon which the house is to bo located. The lоt shall have an area of 17,404 square feet or more. Installation shall be paid for by the property owner interested in the connection to the sewer. * *
In the preceding division we italicized the word “reasonable” as applied to ordinance of this character. That qualification of the city’s power is implicit in every statement of the rule we have seen.
In Harlan v. Town of Bel Air (1940)
The court in State ex rel. v. City of Miami (1946)
Wo are not here discussing a bare question of the constitutionality of regulations such as Ordinance 198, except as there is involved, as here, the question of its
reasonableness.
The trial court cites Hutchinson v. City of Valdosta (1913)
The Massachusetts court in Commonwealth v. Abbott (1894) 160, Mass. 282,
In Schmidt v. Village of Kimberly (1953)
The Iowa legislature apparently had in mind a question of reasonableness when it enacted section 413.33, Code of 1954: “No multiple dwelling shall hereafter be erected unless there is accessible city water and a public seAver, or a priAmte seAver connected directly Avith a public seAver. No cesspool * * * shall be used in connection with any dwelling where connection AAÚth a public seAArer is practicable.”
IV. The case must stand or fall on the legality of Ordinance 198. In order to succeed here relator must establish that it constitutes “an arbitrary exercise”' of police poAver. This, under the record, he has failed to do.
*565
In. a somewhat recent case the Kentucky Supreme Court said: “The exercise of police powers by any government in a proper case marks the growth and development of the law rather than a tyrannical assertion of governmental powers denied by our Constitution or any other superior authority. * # Nourse v. City of Russellville,
It may be conceded the case some years ago might have been considered close. But the decision of the trial court must be affirmed if we are to abide by the present weight of authority.
We have cited various authorities which we think are persuasive. Probably others might be added, e. g., Bigler v. Greenwood, Utah,
The decision of the trial court is affirmed. — Affirmed.