Category: Non-Conforming Uses

Discontinued nonconforming use could be resumed within 1 year

Gary Taylor

by Gary Taylor

C. Line, Inc., vs. Malin and the City of Davenport
(Iowa Court of Appeals, December 7, 2011)

In February 1997, C. Line opened an adult cabaret business in Davenport called “Chorus Line.” In 2001, the City  adopted an ordinance providing for the licensing and regulation of “adult entertainment” businesses.  Two years later C. Line filed a petition in federal court claiming the ordinance was unconstitutional. This lawsuit was resolved in August 2004 when the parties entered into a consent decree that issued a license to C. Line, allowed for the sale of C. Line without loss of the license, and declared C. Line to be a pre-existing nonconforming use.

In 2008 C. Line voluntarily closed Chorus Line, and the business was evicted from its location by a forcible entry and detainer petition granted in favor of the landlord.  The following year the ownership of C. Line was transferred to Nadeem Mazhar, who applied to the city for a license to reopen the adult cabaret business in the same location as before, based on the pre-existing nonconforming use stipulation in the consent decree.  Dr. John’s Lingerie Boutique opened in the same building, however, in August 2008 under a retail business license.  Dr. John’s sells lingerie, shoes, and hosiery as well as novelties, movies, and magazines of a sexual nature.  Malin, the Davenport city administrator, performed a site inspection for the C. Line application, and after observing Dr. John’s advertising and merchandise, a letter – under the signature of the city’s chief financial officer – was issued denying C. Line’s adult cabaret license as violating the Davenport Municipal Code section prohibiting two adult entertainment businesses from being located on the same lot or within 500 feet of each other.  C. Line appealed under city administrative procedures that provided for the city administrator (Malin) to act as the hearings officer.  C. Line filed objections to Malin acting as the hearing officer and moved that he recuse or disqualify himself, but the objections were denied.

The city called one witness, an inspector, at the administrative appeal.  The inspector testified that by his observations Dr. John’s was an “adult store.”  He did not make any square footage measurements or county any inventory.  C. Line called several witnesses.  Among them, the store manager for Dr. John’s testified that at no point in time has the City of Davenport required the store obtain an adult entertainment business license. She further stated that several of the lingerie and novelty items could be found at similar retail stores, like Victoria’s Secret and Spencer Gifts.  The chief financial officer testified that he never inspected Dr. John’s and was basing the denial letter solely on information obtained from the Malin.

Following the conclusion of the hearing the Malin performed a follow-up inspection of Dr. John’s, and based upon his measurements, calculations, and direct observations of the store’s space and displays, the Malin concluded that Dr. John’s was an “adult store” and upheld the denial of C. Line’s adult cabaret license application. Malin made no attempt to address C. Line’s argument that it was a legal preexisting nonconforming use.  C. Line appealed to district court, and after a litany of procedural moves the district court ruled for C. Line on the ultimate land use issue.  Although appeals and cross appeals were filed, this brief focuses on the nonconforming use issue.

Pre-existing nonconforming use. It was undisputed that the express words of the consent decree provided C. Line with an adult cabaret license and the status of a preexisting nonconforming use. As such, C. Line was permitted to continue until legally abandoned. The court cited Davenport Municipal Code section 17.46.020, concerning abandonment:  “In the event that a nonconforming use of any building or premises is discontinued or its normal operation stopped for a period of one year, the use of the same shall thereafter conform to the regulations of the district in which it is located.”  The city argued the nonconforming use was abandoned either when C. Line ceased operations in November 2008 or when the forcible entry and detainer petition was granted in December 2008.  The court noted, however, that the city’s ordinance does not require any subjective intent, but effectively extinguishes nonconforming uses based solely on discontinuance of the use for a specified period of time.  Since C. Line voluntarily ceased operations in November 2008 and was evicted in December 2008, but sought to reopen in July 2009, C. Line did not stop using the site as an adult cabaret for over one year and did not lose its status as a legal nonconforming use under the Davenport Municipal Code.  The nonconforming use did not become the landlord’s upon eviction either, as the city suggested.  Although possession may have been transferred from C. Line in December 2009, C. Line reestablished possession of the land prior to the one-year expiration date.  This argument was premised on a finding that the nonconforming use “leapfrogged” to Dr. John’s, which was incorrect because Dr. John’s was not an adult store and the city had never recognized it as such.

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Nonconforming use not allowed to be rebuilt/reestablished on different parcel

by Melanie Thwing

Coon Creek Sportsman’s Club v. Town of Beloit
(Wisconsin Court of Appeals, March 31, 2011)

In January 2007 Michael Toubl and James Bryden (club owners) applied for a conditional use permit (CUP) for Coon Creek Sportman’s Club which would operate as a bird hunting reserve in Beloit, Wisconsin. The CUP was authorized in July 2007 to operate the reserve and to use a clubhouse as a legal nonconforming structure that existed on one of the parcels. However, in September the building was destroyed in a fire.

The board renewed the CUP on April 7, 2008. The reference to a clubhouse was not removed from the renewed permit. On May 14, 2008 the club owners signed the CUP and agreed to abide by its terms. During this time the club owners applied for a building permit to construct a new building on a different parcel of land. The application listed the building as “ag building.” The application was approved and the permit stated “agricultural use only.”

Several months later the Town supervisors learned the new building was being used as a clubhouse. A letter was sent to the club owners to cease using the building as a clubhouse but they continued to. In April 2009 they applied for an amendment to the CUP to allow the new building to be used as the clubhouse. The planning commission tabled the application waiting for the submission of a site plan but none was submitted.

In January 2010 at a public hearing the board voted to revoke the CUP, concluding that the club owners had violated the conditions. The club owners filed a motion in circuit court seeking a permanent injunction claiming the board’s decision was arbitrary.

The circuit court ruled in favor of the club owners, stating that the board acted arbitrarily because (1) both CUPs referred to the “clubhouse,” (2) the renewed CUP was effective in May 2008, (3) the building permit was renewed before the CUP was renewed, and (4) the only structure on the property in May 2008 was the building described in the building permit.  The circuit court determined that the Town, “intended in the issuing of a conditional use permit that the [new] building would be used at least in part as a clubhouse. Otherwise that provision in the conditional use permit would be meaningless.” The circuit court granted the club owners’ injunction.

The Town appealed to the Wisconsin Court of Appeals arguing that it acted reasonably in revoking the CUP.  The Court of appeals found error in the final three conclusions of the circuit court.    First, the circuit court found that the renewed CUP was not effective until May. However, the CUP states that it became effective in April, regardless of the date the club owners signed and agreed. Because of this the courts finding that the building permit was issued before the CUP is erroneous, and no building existed in May 2008.

The renewed CUP permits revocation for any violation of the permit, and is subject to the general conditions of the Town of Beloit Code of Ordinances. The Town argues that the new building is not a legal nonconforming use. The club owners argue that the building is a legal nonconforming use because “the old building was a legal nonconforming structure and they are using the new building in the same manner.” Further they argue that the reference to a clubhouse in the renewed permit means the new building even if it is not a legal nonconforming use.

Wisconsin Stat. § 60.61(5m) states that if a nonconforming use is destroyed by fire it may be rebuilt if it is, “restored to the size,… location, and use that it had immediately before the damage or destruction occurred…”

The Town of Beloit, General Zoning Ordinances § 2.17D.4 states, “If a nonconforming structure is moved for any reason for any distance whatever, it shall therafter conform to the regulations for the district in which it is located after it is moved.” Under the plain language of the statute and ordinance the new building is not a legal nonconforming structure.

The club owners argue that the CUP allows the new building to be used as a clubhouse also fails. Again, the CUP was renewed on April 7, 2008 and the building permit was not filed until April 21, 2008. There is no evidence that the board knew when it issued the CUP the club owners intended to build in a different location. There is no reason to infer that the board intended the new building to be the clubhouse.

Finally, the building permit says the building is for an “ag building,” and is intended for agricultural use only. The renewed CUP does not allow for the club owners to use the new building as a clubhouse, and therefore they violated the CUP. The decision is reversed.

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Legal nonconforming use extinguished by evidence of no business income for 12 months

by Melanie Thwing

Wilderness Waters v. Oneida County Board of Adjustment
(Wisconsin Court of Appeals, February 15, 2011)

Until 2006 Roger Van Prooien owned and operated Sunset Resort on Bear Lake in Oneida County, WI. The resort has existed as a legal nonconforming use since the 1950s.  Business began to taper off around 2000, so much so that during 2006 the visitors log only showed eight reservations.  Furthermore, in 2006 no sales tax was collected, and the tax records show that there was no income earned.

Wilderness Waters purchased the resort in December 2006 and did an extensive clean up of the property.  After restoring the property Wilderness Waters applied to the Oneida County Planning and Zoning Committee to convert the resort into condominiums. The Bear Lake Protection and Rehabilitation District opposed the application under Oneida County Zoning and Shoreline Protection Ordinance Art. 10, § 9.99 (C)(2). This ordinance  says that any legal nonconforming use that has been discontinued for twelve straight months looses its legal nonconforming status.

Wilderness Waters failed to present any competent evidence to the Committee of continued operation in 2006, use and the application was denied. This decision was appealed to the Board and an evidentiary hearing was held. Wilderness Waters presented affidavits from individuals who supposedly stayed at the resort in 2006, along with the visitors log; however, a public accountant brought evidence that the tax records showed no business income, no operating expenses, and no deductions for wages, depreciation, or advertising that year. The Board found that the resort had not been in use during 2006 and there for lost its status as a legal preexisting use.

Wilderness Waters then appealed to the circuit court for certiorari review under Wis. Stat.  § 59.694(10). The circuit court affirmed the Board’s decision. Wilderness Waters then appeals to the Wisconsin Court of Appeals arguing that the Board failed to provide rationale for its decision.

In this case the Board is given the benefit of the doubt by the courts. The task of the Court of Appeals is to find whether there is substantial evidence to support the Board’s decision. In the hearing minutes the Board was clear that they were persuaded by lack of income on the tax filings.  Further, the lack of reportable income along with no state sales tax return suggested the income was either under-reported or a non-operating business. The lack of income suggests that no guests paid to stay at the resort. Also, the affidavits provided by Wilderness Waters mentioned no specific dates, and were all from members of the same family. The Court of Appeals affirmed the Board’s decision.

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

Gary Taylor 1 Comment

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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Nonconforming uses run with the land

Gary Taylor

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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Nebraska CA: actual usage, not physical capacity controls scope of legal nonconforming use

Gary Taylor

by Allison Arends and Gary Taylor

Thieman v. Cedar Valley Feeding Company Inc.
(Nebraska Court of Appeals, February 23, 2010)

Boone County, Nebraska adopted a zoning ordinance in 1999 that classifies livestock feeding operations in terms of the number of animal units in the operation, and contains setback requirements.  Cedar Valley Feeding Company operated a livestock operation in Boone County on the date the zoning ordinance was adopted.  The ordinance differentiated between livestock feeding operations of 5,000 or fewer animal units and those with more, in how they regulated various aspects of the operations.  On a questionnaire distributed by the Boone County zoning administrator in 2000, Cedar Valley indicated they had 5,000 cattle on the property at the time the ordinance was adopted.  In 2008 Cedar Valley applied for a conditional use permit for the sole purpose of constructing waste facilities to “maintain the present animal capacity of such operations that existed on September 13, 1999, the date of enactment of the Boone County Zoning regulations.”  The owners of Cedar Valley put forth that the actual capacity of the facilities on that date was 7,500 cattle, and that the facilities were not being used to full capacity at the time they had 5,000 cattle.  Ted Thieman, a nearby landowner in Boone County, filed a complaint against Cedar Valley Feeding Company requesting that the company be enjoined from feeding 7,500 head of cattle.  Cedar Valley argued that because their feeding operation’s physical capacity was greater than 5,000 animal units prior the regulation’s enactment, the operation was grandfathered at 7,500 cattle.

The Nebraska Court of Appeals framed the issue as “whether the scope of a nonconforming use is dictated by the physical capacity of the premises or the actual number of cattle confined.”  The court observed that the “Rules and Definitions” section of the Boone County ordinance defined the term “enlargement” as “the expansion of a building, structure or use in volume, size, area, height, length, width, depth, capacity, ground coverage, or in number.” (emphasis added).  The court concluded that when read in the context of zoning regulations that specifically limit the permissible number of animals that may be kept on the premises of a particular livestock feeding operation, this provision prevents the addition of livestock beyond the number on the premises when the zoning regulations went into effect.  In other words, under the specific language of the regulations, actual usage controls.

In addition to Cedar Valley’s responses to the zoning administrator’s questionnaire, data from the Nebraska Department of Environmental Quality inspection indicated that Cedar Valley had 5,000 total animal units on its property on May 19, 1999.  Three additional documents provided evidence indicating Cedar Valley had  5,000 cattle on their property.  The court found persuasive the numerous documents providing evidence that Cedar Valley consistently operated their feeding company with 5,000 cattle more persuasive. Therefore, the court found that Cedar Valley’s legal nonconforming use of the property was limited to the confinement of 5,000 cattle.

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