Iowa Supreme Court overturns loss of nonconforming status for Des Moines mobile home park

by Eric Christianson

Des Moines v. Ogden
Iowa Supreme Court, March 16, 2018

Frank Ogden owns and operates a nonconforming mobile home park on the south side of Des Moines. The property consists of a narrow u-shaped access road with mobile homes around the interior and exterior of this road. The historical record is not clear, but its use as a mobile home park dates back to some time between 1947 and 1955. In 1953 the Des Moines zoning ordinance was modified prohibiting mobile home parks in the R-2 zone in place on the property. In 1955, the owner of the property obtained a certificate of occupancy for the operation of a mobile home park. That certificate of occupancy indicates that the mobile home park was a nonconforming use as to the R-2 zone.

The best record documenting historical use is an aerial photograph from 1963. The photograph depicts “thirty-nine concrete pads with mobile homes situated on them in close proximity to one another. The photograph also shows that some of the homes had additional structures attached to them.” More recent photographs of the property reveal that some residents have added porches, decks, and more living space to their mobile homes.

The city did not issue any warnings or citations regarding the use of the property as a mobile home park until 2014. In 2014, a zoning administrator notified Ogden by letter of numerous violations of the 1955 Des Moines Municipal Code, under which the original certificate of occupancy had been awarded. These included setback violations, failure to maintain the access road, and additions to trailers among other issues. The letter also warned that the park’s violations posed a threat to the health and safety of the occupants.

Ogden did not take any action to remedy the violations. In October 2014, the city sought an injunction to close the park for the above listed violations. At trial the Des Moines Fire Marshall testified that the proximity of the mobile homes and the narrow access road created potentially dangerous conditions for residents.

The trial court found that the issuance of the occupancy permit in 1955 is proof that the property was in compliance with the above regulations when the nonconforming use was established. The court held further that the certificate of occupancy should be revoked as the park poses a threat to “the safety of life or property”.

Ogden appealed to the Iowa Court of Appeals. The Iowa Court of Appeals found that the park had:

grown within its borders in the numbers and location of structures attached to the mobile homes resulting in a narrowing of open space on the roadways and between the homes. […] these changes over a half century have enhanced and intensified the non-conforming use to the point where it is a danger to life and property. […] Ogden’s use of the property is not a lawful intensification of an existing nonconforming use. The present congestion and crowding between structures and narrowing the roadway changes the nature and character of the 1955 non-conforming use and presents a danger to residents and neighbors of the park.

The appeals court affirmed the grant of the city’s request for an injunction against Ogden’s use of the property as a mobile home park. One judge dissented. Read more about that decision here.

Ogden appealed to the Iowa Supreme Court arguing several points:

  1. The actions of the City to enjoin his use of the mobile home park amount to an unconstitutional taking.
  2. It is not necessary for Ogden to discontinue his legal nonconforming use of the property as a mobile home park for the safety of life and property.
  3. The changes to the property did not expand his legal nonconforming use of the property beyond its authorized nonconforming use.
  4. The doctrine of equitable estoppel bars the City from seeking to enjoin his use of the property as a mobile home park.
  5. The district court erred by excluding the testimony of a resident of the mobile home park.

Unconstitutional Takings Because Ogden did not plead a defense on the basis of a taking at the district court level he waived his unconstitutional takings claim. The claim was not preserved. Iowa Supreme Court therefore did not rule on any regulatory takings claims.

Nonconforming Use The court began by citing its definition of a legal nonconforming use.

A nonconforming use is one “that lawfully existed prior to the time a zoning ordinance was enacted or changed, and continues after the enactment of the ordinance even though the use fails to comply with the restrictions of the ordinance.” City of Okoboji v. Okoboji Barz , Inc. […] (Iowa 2008) .

Discontinuance of nonconforming use for the safety of life or property For a city to obtain an injunction requiring compliance with a zoning ordinance it must establish (1) an invasion or threatened invasion of a right, (2) that substantial injury or damages will result unless the request for an injunction is granted; and (3) that there is no adequate legal remedy available.

The Iowa Supreme Court found that the City of Des Moines did not meet this burden. Apart from the testimony of the fire marshal during trial, the city offered little evidence of unsafe conditions on the property. The city had also never cited the property for violations of the fire code, and the first letter of notice of a zoning violation was not sent until 2014.

Nonconforming Use Defense In the case of an established nonconforming use, the burden lies on the city to prove that use exceeds the prior established use.  Property owners have some latitude to change their nonconforming use if those changes are not substantial and do not have adverse effects on the neighborhood. In this case, changes are compared to the state of the part when the certificate of occupancy was issued in 1955. Unfortunately there is no evidence as to the state of the park until the areal photograph from 1963. The City of Des Moines argues that the park must have been in compliance with setbacks and other regulations in 1955 otherwise the certificate would not have been granted. All of the violations visible in the 1963 areal photograph would have occurred between 1955 and 1963. The court finds this argument unpersuasive especially given the fact that the park was not cited for any zoning violations until 2014.

Taking the 1963 photograph as the best approximation of the nonconforming use recognized by the city in 1955. The number and location of the homes is similar to those located on the property today. The court notes that there are in fact less homes in the mobile home park today. The use of the property as a mobile home park today is then not “substantially or entirely different” from its original nonconforming use and is a protected legal nonconforming use.

Ogden’s Additional Claims Because the court found that Ogden’s use of the property as a mobile home park is a legal nonconforming use. The Court did not address equitable estoppel or the exclusion of the testimony of a resident.

 

The Iowa Supreme Court vacated the decision of the court of appeals and reversed the judgment of the district court. Ogden may continue his nonconforming use of the property as a mobile home park.

Dangerous Conditions Cause Mobile Home Park to Lose Legal Nonconforming Status **Decision overturned**

The decision discussed below has been overturned by the Iowa Supreme Court. 

This post will be left as it was, but please read the Iowa Supreme Court’s Ruling on Des Moines v. Odgen for an update to the case.

by Eric Christianson

Des Moines v. Ogden
Iowa Court of Appeals, June 7, 2017

Frank Ogden owns and operates a nonconforming mobile home park on the south side of Des Moines. He purchased the property in 2013 from his uncle. The property consists of a narrow u-shaped access road with mobile homes around the interior and exterior of this road. Although the 1953 Des Moines zoning ordinance prohibited mobile home parks in the city, the owner of the property obtained a certificate of occupancy for the mobile home park in 1955. The historical record is not clear, but its use as a mobile home park dates back to some time between 1947 and 1955.

The best record documenting historical use is an aerial photograph from 1963. The photograph depicts “permanent homes that are in close proximity to each other with additional structures attached to the homes.”

Current photographs depict the property as:

[A] congested, dilapidated, and hazardous jumble of structures. Many of the mobile homes are within feet of each other based on the addition of porches, decks, and living space. Residents park cars throughout the property narrowing portions of the already inadequate access road. Bulk trash items—such as tires, boats, and storage bins—are littered throughout the property. Grills, fences, gardens, and children’s toys also crowd the property.

The city did not issue any warnings or citations regarding the use of the property as a mobile home park until 2014. In 2014, a zoning administrator notified Ogden by letter of numerous violations of the 1955 Des Moines Municipal Code, under which the original certificate of occupancy had been awarded. These included setback violations, failure to maintain the access road, and additions to trailers among other issues. The letter also warned that the park’s violations posed a threat to the health and safety of the occupants.

Ogden did not take any action to remedy the violations. In October 2014, the city sought an injunction to close the park for the above listed violations. At trial the Des Moines Fire Marshall testified that the proximity of the mobile homes and the narrow access road created potentially dangerous conditions for residents.

The trial court found the fact that the occupancy permit was issued is proof enough that the property was in compliance with the above regulations at the time that the legally nonconforming use was established. This means that Ogden had the right to continue his nonconforming use subject to the laws in place in 1955 as long as the nature and character of the use as it existed in 1955 is not changed.

The court held that even under the laws in place in 1955, the certificate of occupancy should be revoked as the park poses a threat to “the safety of life or property”. The court also held that, “’use of [the] property has intensified beyond acceptable limitations’ because the conditions ‘pose a real threat in the event of an emergency.’”

Ogden appealed to the Iowa Court of Appeals arguing that the court was wrong to find that the nonconforming use posed a threat to life or property and that the use had been unlawfully expanded. He also argued that estoppel prevents the city from obtaining an injunction.

In addition to procedural questions relevant to this case the Court of Appeals examined the questions of nonconforming use and whether estoppel prevented the city from obtaining an injunction to close the park.

Nonconforming Use A nonconforming use is “one that lawfully existed prior to the time a zoning ordinance was enacted or changed, and continues after the enactment of the ordinance even though the use fails to comply with the restrictions of the ordinance.” A nonconforming use may continue indefinitely until abandoned, but it may not be “enlarged or extended”. The Des Moines Municipal Code adds that a nonconforming use may lose its protected status if discontinuance is “necessary for the safety of life or property”.

The Iowa Supreme Court has never ruled on whether the addition of structures or the expansion of homes in a mobile home park constitutes and an unlawful expansion of the nonconforming use. Other state courts, however, have found that replacing mobile homes with larger models or enlarging existing mobile homes in violation of setback requirements may constitute an unlawful intensification of the nonconforming use.

The Appeals Court found that:

Although this mobile home park has not changed in size or use, the record demonstrates it has grown within its borders in the numbers and location of structures attached to the mobile homes resulting in a narrowing of open space on the roadways and between the homes. […] these changes over a half century have enhanced and intensified the non-conforming use to the point where it is a danger to life and property. […] Ogden’s use of the property is not a lawful intensification of an existing nonconforming use. The present congestion and crowding between structures and narrowing the roadway changes the nature and character of the 1955 non-conforming use and presents a danger to residents and neighbors of the park.

Equitable Estoppel Further, Ogden argued that equitable estoppel bars the city from closing the mobile home park. The Court Defined equitable estoppel as, “a common law doctrine preventing one party who has made certain representations from taking unfair advantage of another when the party making the representations changes its position to the prejudice of the party who relied upon the representations.”

The court states that to prove estoppel Ogden must demonstrate:

  1. a false representation or concealment of material fact by the city,
  2. a lack of knowledge of the true facts by [Ogden],
  3. the city’s intention the representation be acted upon, and
  4. reliance upon the representations by [Ogden] to their prejudice and injury.

The court found that Ogden’s claim failed under the first element of the test. The city’s failure to enforce the zoning ordinance does not amount to false representation or concealment of material fact. The city does not notify property owners of every infraction. Instead the city’s enforcement is triggered by complaints.

The court affirmed the grant of the city’s request for an injunction against Ogden’s use of the property as a mobile home park.

Chief Judge Danilson partially dissented. He argues that the city failed to prove either that the mobile home part exceeded its original non-conforming use or that it poses a threat to the safety of people or property. In his opinion, there is no conclusive evidence of the condition or number of homes in the part in 1955, and the size and use of the park have not changed. He argues that although the condition of the park has likely deteriorated, there are less dramatic ways to improve conditions in the park.

Further, Danilson argues that there is insufficient evidence to conclude that the park poses a danger to people or property. The city or fire department have not taken any actions based on unsafe conditions, and the fire chief’s testimony was too general to draw any specific conclusions about the park’s safety.

Iowa Law Limiting Occupancy Restrictions to go into Effect January 1, 2018

By Eric Christianson

House File 134 was signed into law on April 21 by Gov. Branstad limiting the ability of cities to set occupancy restrictions based on familial relationships. This law has appeared several times in various forms over the past few years in the Iowa legislature. It was opposed by many larger cities along with the Iowa League of Cities. It was supported by the Iowa ACLU as well as the Landlords of Iowa.

The bill amends Iowa Code 414.1 subsection 1, adding the bolded text:

a. For the purpose of promoting the health, safety, morals, or the general welfare of the community or for the purpose of preserving historically significant areas of the community, any city is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.

b. A city shall not, after January 1, 2018, adopt or enforce any regulation or restriction related to the occupancy of residential rental property that is based upon the existence of familial or non familial relationships between the occupants of such rental property.

This change will mostly impact college towns which were actively trying to limit the number of students moving into historically single-family neighborhoods.

See coverage of the bill’s passage in the Des Moines Register and the Ames Tribune and Little Village to read more about how some communities have responded.

You can find a copy of the bill as well as its history here.

 

 

Rental market tight, will be getting tighter

The Urban Institute recently sponsored its second annual Data, Demographics and Demand symposium.  The subject was the future of multifamily housing.  More than half the new households formed in the next six years will be renters rather than homeowners, yet renter incomes are on average only 70 percent of homeowner incomes.  Five experts in rental housing offered their observations, summarized in the most recent MetroTrends blogpost (put out by the Urban Institute).  It is a very interesting read, especially for me, living in a college town that is experiencing a boom in multifamily construction.  Three quick points:

  1. Rental supply is tight and getting tighter. Just to keep up with normal rental demand, including the yearly loss of about 100,000 units, the country needs 400,000 new rental units a year.
  2. Much of the rental housing currently under construction will be affordable only to the top 4 to 5 percent of renters.  Other renters will need to rely on an already-constrained supply of existing housing, much of which will be single-family rentals.
  3. With high rents, stagnant incomes, and constrained supply, one panelist said “it would not shock” him if the 25 percent of renters who pay more than 50 percent of their income for rent and utilities goes up to 35 percent in a few years time.

The post also suggested the roles local, state and national government can play to help solve these challenges.  I urge you to read the original MetroTrends post.

More new bills introduced

SF 2047 would amend Iowa Code 303.34(3)  to allow a city with an historic preservation commission to appoint one member to the commission who is not a city resident or property owner if that member meets certain professional qualification standards defined by rule by the department of cultural affairs.

HSB 536 would amend Iowa Code 68B.22(4), commonly known as the gift law.  The gift law includes a list of exceptions that makes an otherwise impermissible gift permissible.  Currently, one of the exceptions is for food, beverages,  registration, travel, and lodging for a meeting, which is given  in return for participation in a panel or a speaking engagement at the meeting when the expenses relate directly to the day or days on which the donee has participation or presentation responsibilities. The bill would limit the exception to situations where the public official is an actual speaker, not merely a participant.  The bill would also limit the definition of “entertainment” in another exception so that it does not include “admission to a sporting event, concert, theatrical performance, or other similar type of event or performance….”

SSB 3089 would add a new section to Iowa Code 364.17 that would allow a city to adopt housing code provisions related to sprinkler systems in rental housing. Any such housing code provisions could only apply to newly constructed rental units or substantially renovated rental units. The bill states that “substantially renovated” means renovations that include repairs or improvements to more than 50 percent of the rental unit.

SSB 3090 would create an amendment to Iowa Code 414.1 allowing a city to regulate and restrict the occupancy of residential rental property on the basis of square footage, but disallowing ordinances that regulate the occupancy  of residential rental property based upon the familial or nonfamilial relationships of occupants, presumably in response to the Ames Rental Property Association v. City of Ames (link to summary here) case decided by the Iowa Supreme Court in 2007.

SSB 3091 would rename the Iowa Geological and Water Survey as the Sandrock Center for Land and Water Science.  It would make the director a gubernatorial appointee, rather than an appointee of the director of the DNR as it now stands.  the Sandrock Center is to be located in or near to Iowa City, and the University of Iowa shall cooperate with the director of the center to provide office space and staffing assistance.

SGA blogpost focuses on foreclosures

Smart Growth America has linked to a number of opinion articles concerning the nation’s housing and foreclosure crisis in today’s (January 10) blogpost. They provide a variety of perspectives, from the Wall Street Journal’s stance against further intervention by the Federal Reserve to the Center for American Progress’s call to “get serious about the housing market.”

Prediction: Worst is yet to come for housing market

An interesting article predicting a “coming housing calamity” appeared on the New Urban News newsletter.  Arthur Nelson, a well-respected planning professor at the University of Utah, predicts that the sales of single-family homes by aging baby boomers, rising household sizes, dropping homeownership and tighter lending standards will result in a “disaster for homebuilders.”

Decision in Section 8 housing assistance hearing insufficient to terminate benefits

by Melanie Thwing

Daniels v. City of Des Moines Municipal Housing Agency
(Iowa Court of Appeals, September 9, 2010)

Felicia Daniels is a resident of Des Moines, IA who was receiving benefits from the Section 8 Housing Assistance Program. The purpose of this program is to help low-income families obtain, “a decent place to live.” This is a program run by the U.S. Department of Housing and Urban Development, which then contracts out to Public Housing Agencies (PHA) at the state and local levels.

In February of 2009 the Des Moines Municipal Housing Agency (DMMHA) notified Daniels that her rental subsidy would be terminated because of a second failed inspection resulting in a violation of her lease.  The items listed as causing the second failed inspection included a battery missing from a smoke detector, writing on the walls, and a missing light fixture. Daniels filed a written request for a hearing, and an unrecorded hearing before a hearings officer occurred in March. In April, a written decision from the hearings officer in support of termination was filed, and cited to evidence of a failed first and second inspection.

In May of 2009 Daniels filed for a writ of certiorari to negate her termination from the program claiming a due process violation, and inadequate evidence. In December the district court affirmed the hearings officer’s decision. Daniels then appealed to the Iowa Court of Appeals on the grounds that the unrecorded hearing did not follow “constitutional or regulatory requirements.”

The Court first lookedat when a PHA can terminate an individual or family from the program. The hearings officer wrote in his decision that Daniels “violated obligation of the family” by causing a breach of Housing Quality Standards (HQS).  The law states that the family “is responsible for a breach of  the HQS that is caused”  by the damages to the housing unit.  The Court of Appeals pointed out that the hearings officer found that the family caused damages, but failed to address the other half of the equation: whether the damages resulted in a breach of the HQS.  The Court thus found this to be an inadequate claim upon which to terminate the Section 8 subsidy.

Daniels also argued that a violation of her due process rights took place. She pointed to judicial precedence that requires the hearings officer, in his written decision on termination, to include factual determinations relating to the individual circumstances of the family and reflect that he is aware of his discretionary authority to take all relevant circumstances into account.  During the hearing, Daniels spoke to the fact that the landlord refused to fix anything, that she had repaired everything that passed the second inspection, and that the failed items were the landlord’s responsibility. The written document from the hearing does state the “Position of Participant,” but, the Court of Appeals pointed out, there is no way to know from the written decision if these circumstances were taken into account by the hearings officer. The Court comes to the conclusion that because there is neither rationale listed by the hearings officer, nor any indication that he was aware he was authorized to exercise discretionary authority, the record as a whole was insufficient to terminate the Section 8 funding. The decision is reversed.

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