Opinion
No. 1-618 / 00-1069.
Filed December 30, 2002.
Appeal from the Iowa District Court for Scott County, PATRICK J. MADDEN Judge.
The plaintiff appeals from the district court's ruling in a consolidated certiorari action upholding the defendants' determination that the plaintiff's billboards violated the minimum setback requirements of the city's zoning ordinances and their removal was required. REVERSED.
Kent A. Simmons, Davenport, and Marc Gellerman, Bettendorf, for appellant.
Michael J. Meloy, Davenport, for appellees.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
The plaintiff appeals from the district court's ruling in a consolidated certiorari action upholding the defendants' determination that the plaintiff's billboards violated the minimum setback requirements of the city's zoning ordinances. The plaintiff claims the district court erred in applying the setback distance established under a zoning ordinance pertaining to buildings, rather than applying the setback requirement established in the ordinance specifically pertaining to the placement of billboards. We reverse the decision of the district court.
I. Background Facts and Proceedings.
The facts of this case are essentially undisputed. Revolution Outdoor Advertising, Inc. (Revolution), applied to the City of Davenport (City) for permits to construct billboards on several different commercial lots. On each permit application, the City made notations or specifically stated that according to zoning ordinances, the billboards could not encroach upon the setbacks already established by the existing buildings in the blocks where the billboards were to be located. Revolution constructed its billboards relying on setback requirements set forth in a provision of the Davenport Municipal Code specifically providing for a minimum twenty-five foot setback for billboards and signs.
After the billboards were erected, the City issued notices to Revolution indicating that several of its billboards were placed in violation of the setback requirements established in section 17.42.040 of the Davenport Municipal Code and ordered their removal. Revolution appealed to the City Zoning Board of Adjustment (the Board). Following hearing, the Board issued six separate rulings upholding the City's determination that the billboards at issue encroached on the applicable front yard setback and must be removed. After the Board sided with the City, Revolution applied for a writ of certiorari in district court pursuant to Iowa Code section 414.15 (1999) challenging each of the Board's rulings. The separate actions were consolidated and heard by the district court at the same time.
The district court denied each of the plaintiff's applications for certiorari relief. The court concluded the City's zoning ordinance was ambiguous, but agreed with the Board's interpretation of the ordinance. Revolution appealed. The plaintiff's consolidated appeal challenges the district court's ruling in Scott County Law No.'s 94428, 94429, 94430, and 94634. The parties agree the issues addressed in the district court's rulings concerning two of the six billboards are now moot.
II. Scope of Review.
Under Iowa Rule of Civil Procedure 1.1412 , our scope of review on appeal from a district court's judgment in a certiorari proceeding is "governed by the rules applicable to appeals in ordinary actions." Iowa R.Civ.P. 1.1412. We are restricted to correction of errors at law and are bound by the findings of the trial court if supported by substantial evidence in the record. Iowa R.App.P. 6.14(6)(a); Fox v. Polk County Bd. of Sup'rs, 569 N.W.2d 503, 507 (Iowa 1997).
Formerly Iowa Rule of Civil Procedure 318.
Formerly Iowa Rule of Appellate Procedure 14(f)(1).
In construing an ordinance, we must examine the whole ordinance, giving each section consideration in order to "give the ordinance its natural and intended meaning." Kordick Plumbing Heating Co. v. Sarcone, 190 N.W.2d 115, 117 (Iowa 1971). However, zoning ordinances are considered extensions of the police power and must be strictly construed in favor of the free use of property. City of New Hampton v. Blayne-Martin Corp. 594 N.W.2d 40, 45 (Iowa 1999); Steinlage v. City of New Hampton, 567 N.W.2d 438, 442 (Iowa Ct.App. 1997). A zoning restriction may not be extended by implication or interpretation. Steinlage, 567 N.W.2d at 442 (citations omitted).
III. Analysis
The question presented by this appeal is purely legal. Revolution contends the City, the Board, and the district court applied the wrong ordinance and, therefore, the wrong measurement for setback, in determining there were setback violations.
The four billboards at issue are all on land zoned C-2, General Commercial. All are freestanding monopole billboards, and all have a setback of at least twenty-five feet.
The provisions of the City's zoning ordinance at issue in this appeal are found in Title 17 of the Davenport Municipal Code. The City asserts the billboards constructed by Revolution violate section 17.42.040(A) of Chapter 17.42, which provides in pertinent part:
When thirty percent or more of the frontage on the same side of the street between two intersecting streets is improved with buildings that have observed a greater or lesser depth of front yard than required by the district in which it is located, no building or portion thereof shall project beyond a straight line drawn between the point closest to the street line of the building upon either side of the structure. . . .
In support of its position, the City relies on the definition of the term "structure" found in the section 17.04.510 of Chapter 17.04 of the zoning ordinance. That section provides as follows:
"Structure" means anything constructed or erected, the use of which requires permanent location on the ground, or attached to something having a permanent location on the ground, including but without limiting the generality of the foregoing, advertising signs, billboards, backstops for tennis courts and pergolas.
The City contends the setback distance observed by the surrounding buildings establishes the appropriate setback distance for later constructed billboards. Revolution disagrees.
Revolution maintains Chapter 17.42 entitled "Height, Yard, Lot and Area Requirements Exceptions and Variations," does not apply to billboards. It contends Chapter 17.45, entitled "Sign Regulations," governs billboards. Revolution argues its billboards were legally placed under this chapter. It contends the setback for free standing monopole billboards in the C-2 zone is set out in subsection 17.45.090(F)(4)(a)(1) of Chapter 17.45 which provides:
4. Sign Setbacks.
a. Front yard setback.
(1) The required front yard setback for free standing signs of maximum allowable area shall be twenty-five feet or the distance from the property line to the principal structure, whichever is less. The front yard setback for free standing signs may be reduced five feet for every twenty percent reduction from the overall permitted sign area. In no event shall the front yard sign setback be less than ten feet unless the distance from the property line to the principal structure is less than ten feet. If the distance from the property lines to the principal structure is less than ten feet, the sign shall be set back a distance equal to the setback of the principal structure. Billboards seventy-two square feet or less shall have a setback requirement of ten feet. In no event shall a free standing sign or billboard obstruct the vision of a motorist so as to constitute a public safety hazard.
Section 17.45.075 of Chapter 17.45 refers to a general twenty-five foot setback for billboard front yard setbacks "except as otherwise stated in this chapter." The Board claims this language supports its conclusion that the billboard setbacks are subject to Chapter 17.42 regulations. In response, Revolution contends the phrase "except as otherwise stated in this chapter" means except as otherwise stated in Chapter 17.45, "Sign Regulations." It contends the language in section 17.45.075 does not give effect to any other chapter in the whole of Title 17, and does not give force to Chapter 17.42, which regulates buildings and fences.
We conclude Revolution has the better argument. We conclude reference to "this chapter" in section 17.45.075 is to Chapter 17.45, specifically. The general front yard billboard setback of section 17.45.075 does not say the setback is twenty-five feet "except as stated otherwise in Chapter 17" or "except as otherwise stated in the rules or provisions of the zoning ordinances." Because "this chapter" means Chapter 17.45, we conclude it is improper to interpret subsection 17.45.090(F)(4)(a)(1) as being affected by section 17.42.040.
Revolution further argues that even if Chapter 17.42 could have an effect on billboard setbacks, it is clear that section 17.042 does not. We agree. The section says that "no building or portion thereof shall project beyond a straight line. . . ." We believe the use of the word "structure" in the section relates back only to "building." A "building" is a structure as "structure" is defined is section 17.04.510. We recognize that a "structure" can be a "billboard" under that same definitional section; however, we conclude the language of section 17.042 creates only a setback requirement for buildings.
Because we conclude the building setback requirement in Chapter 17.42 does not apply to Revolution's billboards, we reverse the district court.