Nonconforming uses run with the land

by Gary Taylor

City of Clear Lake v. Scott Kramer
(Iowa Court of Appeals, August 11, 2010)

Scott Kramer owns three parcels of property totaling 7.3 acres in the City of Clear Lake. Kramer inherited the property from his aunt when she passed away in June 2007. His aunt acquired the “home parcel” in 1936, which includes two houses, a garage, a barn, a machine shed, and out-sheds, as well as a pasture used to keep livestock.  In 1950, his aunt acquired the adjoining “pasture parcel,” which has no structures on it At the time his aunt acquired these two parcels no zoning ordinance was applicable to the property. The first zoning ordinance was enacted by the City in 1955, and the parcels were zoned agricultural. Each parcel has been solely used as a pasture to keep livestock since they were acquired.

In 1957 the third parcel was acquired.  It is a small lot with no improvements that adjoins the pasture parcel.  At the time it was acquired (2 years after the City’s zoning ordinance went into effect) it was zoned residential, although it is undisputed that livestock have also been allowed to roam on this parcel since its acquisition.

In 1983 the City amended its zoning ordinance, and all three parcels were zoned for residential use.  They have remained so to this day.  Shortly after Kramer inherited the property from his aunt the City wrote to Kramer directing him to remove all livestock from the parcels within sixty days.  The letter asserted that “the previous owners of the property had the permission of the Council to keep horses and mules on the property. As the previous owners have passed away, the Council’s permission has now lapsed.”  When Kramer refused to remove the livestock the City issued him a citation for a zoning ordinance violation.  The case was heard by a district associate judge who sided with the City, explaining that “at least since 1955 the zoning ordinances have limited the property use to single family residences and have prohibited the keeping of livestock on the property.”  The district court affirmed the district associate judge, and Kramer appealed.

The Court of Appeals disagreed, recognizing the well-settled law that “a nonconforming use is not personal to the current owner or tenant, but attaches to the land itself,” and thus is not affected by the change of possession that occurred when Kramer inherited the parcels from his aunt. 

The city alternatively argued that nonconforming uses are nevertheless subject to reasonable regulation under the police power to protect the public health, safety and welfare.  The Court, however, recognized that to allow such an argument would effectively swallow the protections that nonconforming use law provides.

The Court thus ruled in favor of Kramer, finding that the home parcel and pasture parcel were valid, preexisting nonconforming uses.  It further found that since the city’s ordinance violation citation was an “all or nothing proposition” it declined to sever out the third parcel for different treatment and dismissed the citation altogether.

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