Preexisting auto sales lot legal use, parking on unpaved surface was not

by Gary Taylor

Galinsky Family Real Estate, LLC v. City of Des Moines Zoning Board of Adjustment
(Iowa Court of Appeals, January 20, 2011)

Big Guy Auto Sales is operated by Daniel James. James rents the property from Gary Galinksy, the owner of Galinsky Family Real Estate, LLC. Galinsky purchased the property at 1717 SE 14th Street in Des Moines in February 2005 and first leased it to Dan Wright of River Edge Auto Sales.  On May 6, 2005, while River Edge Auto Sales was in operation, the city issued an Auto Dealership Zoning Confirmation to Galinsky in regard to the property at 1717 SE 14th Street. The confirmation stated that the property was “zoned properly” and met the standards to be used as a “vehicle display lot” which allowed the owner to obtain a dealership license from the Iowa Department of Transportation. The confirmation also included the following information: “Conditions associated with grandfather rights for auto sales lot: All vehicles for sale as well as customer and employee parking must be conducted from areas of the property that have been improved with hard-surfaced paving.”

About one year later, James started leasing the property at 1717 SE 14th Street from Galinsky. On July 19, 2006, the city zoning department asked James to sketch a site plan indicating where the inventory of used cars would be parked. James provided the city with a simple hand-drawing showing a front display area of the car lot abutting SE 14th Street with a holding lot behind it. The drawing did not show definitively whether the holding lot extended all the way back to SE 14th Court, an unpaved street that runs parallel to SE 14th Street. On the same date, the city issued a Vehicle Dealership License Zoning Confirmation to James, noting that the property was “zoned properly”  and met the standards to be used as a vehicle display lot.

On April 19, 2008, a city inspector visited Big Guy Auto Sales and discovered inoperable vehicles, boats, and other junk and debris stored on the unpaved back portion of the lot. The city‘s neighborhood inspection division issued a notice of violation and James responded by cleaning up the property.

On June 4, 2008, the city sent a letter to Galinsky assigning a new address—1716 Southeast Fourteenth Court—to the rear portion of the lot at 1717 Southeast Fourteenth Street. The city inspector testified that she issued the address letter so the city could use its computerized database to track future enforcement activity on that parcel. A city inspector again visited Big Guy Auto Sales on August 5, 2008. The next day, the city‘s development zoning division issued Galinsky a notice that the condition of his property at 1716 Southeast Fourteenth Court violated a municipal code provision prohibiting storage of vehicles on an unpaved lot.  Galinsky appealed the notice of violation to the City of Des Moines Zoning Board of Adjustment (ZBA) under Iowa Code section 414.10 (2007), asserting that he had “grandfather rights to use this property as it has been used in the past”  as a result of the zoning confirmation letters of 2005 and 2006.  The ZBA upheld the violation notice, concluding that the earlier letters from the city gave Galinsky grandfather rights for auto sales, but not rights to park vehicles on unpaved surfaces.  The ZBA determined that the July 19, 2006 sketch did not extend to SE 14th Court, and did not include the unpaved portions of the lot. 

Galinsky filed a petition for writ of certiorari and application for a restraining order against the city in Polk County district court.  The district court ruled against the ZBA on a determination that Galinsky “continues to enjoy nonconforming use status as a used car lot.”  The ZBA appealed to the Court of Appeals.  

On appeal the Court of Appeals sided with the ZBA.  Galinsky did not meet his burden before the ZBA to show that his tenant‘s practice of parking cars being prepared for sale on the unpaved rear portion of the lot at 1717 SE 14th Street was ever allowed under the city zoning codes. To qualify as nonconforming, the use of the property must be lawful at the time the owner or tenant commenced the activity. The ZBA found that as far back as 1953, the zoning code prohibited used car dealers from parking cars on an unpaved lot. Accordingly, the ZBA determined, and the Court of Appeals agreed, that Galinsky‘s property could not qualify for a nonconforming use exemption for an activity that was not lawful, even if it existed, when the current zoning code went into effect.

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