Opinion
No. 5-088 / 03-0762
Filed April 28, 2005
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
The City of Des Moines appeals from a district court ruling denying injunctive relief in a zoning enforcement action against Imperial Properties, Inc. AFFIRMED.
David L. Phipps, Assistant City Attorney, Des Moines, for appellant.
Robert A. Nading II of Nading Law Firm, Ankeny, for appellee.
Heard by Huitink, P.J., and Miller and Eisenhauer, JJ.
The City of Des Moines appeals from a district court ruling denying injunctive relief in a zoning enforcement action against Imperial Properties, Inc.
I. Background Facts and Proceedings.
Imperial owns a commercial building and adjacent parking lot located at 5803 Hickman Road in Des Moines. The property has been zoned C1 commercial since 1965. Since acquiring the property, Imperial has leased it to several restaurant tenants, a conforming use under the 1965 zoning ordinance. Subsequent to adoption of the 1965 zoning ordinance, the City enacted additional site planning and parking lot regulations. Because Imperial's continuing use of its parking lot for a restaurant was "grandfathered" in under the zoning ordinance, Imperial was not required to bring its parking lot into compliance with subsequently enacted site plan and parking lot regulations.
In 1998 Imperial's restaurant tenant vacated the property. The property remained vacant until the fall of 2001 when it was leased to another restaurant tenant. On February 11, 2002, the City issued a certificate of occupancy authorizing the use of the property for a restaurant. The certificate included the following special conditions:
Special Conditions: 1.) Temporary until 6-1-02 pending landscaping and concrete removal per site plan requirements. DZ/RLK.
According to the City, Imperial's use of the parking lot was no longer a legal nonconforming use because that use was discontinued for more than one year after the 1998 vacancy. Imperial's subsequent use of its parking lot was therefore subject to the City's site plan and parking lot regulations.
On July 8, 2002, a zoning enforcement official issued a "notice of violation" citing Imperial's failure to bring its property into compliance with the City's applicable site plan and parking lot requirements. Although the City claimed a copy of this notice was sent to Imperial's registered agent, Imperial denied its receipt.
On August 29, 2002, the City sued Imperial, alleging Imperial's continued violations of the City's applicable zoning ordinances. The City requested the following relief:
WHEREFORE, the Plaintiff prays that the Court order the Defendant to bring the land into compliance with the Municipal Code of the City of Des Moines, Iowa, and for other relief deemed equitable by the Court under the circumstances.
FURTHER, the Plaintiff prays that the Defendant be ordered to cause the illegal business activity to cease and the structure be vacated until such time as there has been issued a valid Certificate of Occupancy.
FURTHER, the Plaintiff prays that the Court enjoin the Defendants from their continued nonconforming use of the real estate in violation of the Des Moines, Iowa, Municipal Code, Chapter 134.
FURTHER, the Plaintiff prays that all costs incurred by the Plaintiff in enforcement of the Municipal Code and all costs of this action be assessed to the Defendant as a personal judgment and be entered against the real estate as an assessment, with interest.
Imperial denied any violations and affirmatively alleged that it did not discontinue its legal nonconforming use because the property was leased to another restaurant tenant.
The fighting issue at trial was whether Imperial discontinued the use of its parking lot for a restaurant for the requisite time to lose its legal nonconforming use status. The City presented evidence supporting its earlier recited discontinuation theory, including the fact that one or more abandoned or disabled vehicles were found in the parking lot while the property was vacant. The City also argued that the zoning commission correctly interpreted and applied the pertinent zoning ordinances in making its enforcement decisions.
The trial court disagreed. The court's findings of fact state:
After reviewing the ordinances, the Court accepts defendant's argument that there has been no change in the underlying use of the property and that defendant is shielded from the subsequent, more restrictive ordinance amendments because of the "grandfather" provision in the ordinance. Nor does the Court find that the owner was somehow bound by the conduct of the tenant when the tenant agreed to submit a site plan.
The Court expressly does not decide the issue of whether defendant may be estopped from asserting the "grandfather" provision. Certain facts suggest that the defendant should be estopped. But the City did not plead that theory nor did the City file a trial brief asserting the theory. Under these circumstances, and in fairness to the defendant, the Court will leave that issue to be decided, if at all, in the future.
On appeal, the City raises the following issues for review:
I.IMPERIAL PROPERTIES VIOLATED THE CITY'S ZONING ORDINANCE.
II.IMPERIAL WAIVED ITS RIGHT TO CLAIM PERPETUATION OF LEGAL NONCONFORMING USE BY FAILING TO APPEAL THE ZONING ADMINISTRATOR'S DETERMINATION TO THE BOARD OF ADJUSTMENT.
II. Standard of Review.
The pleadings, relief sought, and nature of the case ordinarily determine whether an action is legal or equitable. Ernst v. Johnson County, 522 N.W.2d 599, 602 (Iowa 1994). However, we will review a case on appeal in the same manner in which it was tried. Id. Where there is uncertainty about the nature of the case, our litmus test to make the determination is whether the trial court ruled on evidentiary objections. Id. Because the district court ruled on evidentiary objections in this case, we find the case was tried at law. Accordingly, our review is for correction of errors of law. Iowa R. App. P. 6.4.
III. The Merits.
The parties agree that Imperial's use of its parking lot was formerly a legal nonconforming use to which the subsequently adopted site plan and parking lot regulations at issue did not apply. As noted earlier, the City contends Imperial's use of its property is no longer legal because it was discontinued after 1998. We disagree.
Des Moines Municipal Code section 134-1352(b) provides:
If a lawful use of a structure or of a structure and land in combination exists at the effective date of the ordinance adopting or amending this chapter that would not be allowed in the district under the terms of this chapter, the use may be continued so long as it remains otherwise lawful, subject to the following:
. . . .
(5) If a nonconforming use of a structure or structure and land in combination is discontinued, i) for more than two years prior to January 1, 1992; ii) for more than one year between January 1, 1992, and February 1, 2001; or iii) for more than one year for any reason whatsoever after February 1, 2001, the use of such shall thereafter conform to the uses permitted in the district in which it is located.
The term "use" is defined in this chapter to include the words "intended, designed, or arranged to be used or occupied." Des Moines Municipal Code § 134-3.
Even though "use" is defined in the Municipal Code to include the words "intended, designed, or arranged to be used or occupied," the Municipal Code makes it clear that this definition applies "except where the context clearly indicates a different meaning." See Des Moines Municipal Code § 134-3. A nonconforming use is one "that existed and was lawful when the [zoning] restriction became effective and which has continued to exist since that time." Perkins v. Madison County Livestock Fair Assoc., 613 N.W.2d 264, 270 (Iowa 2000). "A party who asserts a nonconforming use has the burden to establish the lawful and continued existence of the use, and once the preexisting use has been established by a preponderance of the evidence, the burden is on the city to prove a violation of the ordinance by exceeding the established nonconforming use." City of Jewell Junction v. Cunningham, 439 N.W.2d 183, 186 (Iowa 1989).
Our supreme court has held that "ordinances may effectively extinguish nonconforming uses based solely on discontinuance of that use for a specified period of time." Smith v. Board of Adjustment, 460 N.W.2d 854, 857 (Iowa 1990). However, "periods of discontinuance which are caused by circumstances beyond the control of a property owner will not cause the loss of a nonconforming use." Ernst, 522 N.W.2d at 604 (stating interruption in use of property caused by decreased demand would not cause loss of nonconforming status even if ordinance did not contain an intent element); see also City of Minot v. Fisher, 212 N.W.2d 837, 842 (N.D. 1973) (permitting the continuation of a nonconforming use when owner attempted to find suitable tenant during period on non-occupancy); Marchese v. Norristown Borough Zoning Bd. of Adjustment, 277 A.2d 176, 185 n. 9 (Pa.Commw.Ct. 1971) (stating courts have excused involuntary cessation of nonconforming use for financial difficulties of owner and inability of owner to find suitable tenant).
We believe the outcome of this case is controlled by the earlier recited definition of the term "use." There is no evidence of record indicating Imperial's intended use of its parking lot for a restaurant changed after 1998 or that the design or arrangement of the property for use as a restaurant was changed. Moreover, the record indicates that Imperial continuously offered the property for rent during its vacancy and eventually leased it to a restaurant tenant in the fall of 2001. At best, the evidence establishes no more than an interruption in Imperial's use of the property for a restaurant, pending its eventual lease to another restaurant tenant. The fact that one or more vehicles were parked in the parking lot during this time is, in our view, insufficient to establish Imperial's discontinued legal nonconforming use of its parking lot. See Perkins, 613 N.W.2d at 270 (granting latitude to owner when changes in use are not substantial and do not adversely impact the neighborhood). Because there is substantial evidence indicating Imperial did not discontinue its legal nonconforming use of its parking lot, the provisions of section 134-1352(b)(5) are not implicated. The trial court correctly denied the City's request for injunctive relief, and we affirm on this issue.
Finally, we decline to address the City's exhaustion of administrative remedies argument because it was neither raised nor resolved at the district court. Vincent v. Four M Paper Corp., 589 N.W.2d 55, 64 (Iowa 1999) ("We will not address an argument which the district court did not have an opportunity to consider."). We have carefully considered all of the arguments raised by the parties on appeal and conclude they are either without merit or controlled by the foregoing.