Failure to comply with previous ZBA SUP conditions does not render “illegal” ZBA’s decision to grant same party another SUP

by Gary Taylor

Brinkley v. City of Milford Zoning Board of Adjustment

Iowa Court of Appeals, November 2, 2022

In May 2021, Okoboji Community School District (OCSD) submitted applications to the Milford Zoning Board of Adjustment (ZBA) seeking special use permits for the construction of a bus barn and a multipurpose building on its high school campus. The next month, the ZBA discussed OCSD’s applications during a special meeting, which the Brinkleys and their representatives attended. The Brinkleys raised multiple issues with the project, primarily focusing on OCSD’s failure to fully comply with a 2004 ZBA decision imposing a condition that OCSD must “plant, cultivate and maintain vegetative screening in an adequate and appropriate manner on the School’s property adjacent to the north, west and south of the Brinkley property” to receive a special use permit. It was essentially indisputable that OCSD had not installed or maintain the required vegetative screening along substantial portions of the border between the properties. Nevertheless, at the conclusion of the hearing on the special use permit the ZBA approved the application. One of the conditions attached to the approval was that “The vegetative screens plan as presented by the school must be planted within 12 months after the ‘substantial completion’ of the school project.” The Brinkleys filed a petition for writ of certiorari, arguing the ZBA acted without substantial evidence and illegally by granting the special use permit despite OCSD’s failure to plant the vegetative screen required in the 2004 ZBA decision. The district court found the ZBA acted legally, and this appeal was taken.

The Court of Appeals found nothing illegal or arbitrary about the ZBA’s decision. Upon review the court concluded that the ZBA was not unreasonable in concluding that OCSD met the criteria for special use permits found in the Milford zoning ordinance, nor was it unreasonable to allow the 12-month window from project completion to install new vegetative screening. On the issue of the city’s failure to enforce the screening condition from 2004, “[a]lthough the city had an obligation to enforce its zoning requirements, such [failure to carry out its] duty does not equate to an illegality.” Mandamus action could have provided the Brinkleys a vehicle to compel compliance with the 2004 decision, but that avenue was lost when the ZBA granted the current permit.

Township drone photos used to support zoning code violation are admissible

by Gary Taylor

Long Lake Township v. Todd and Heather Maxon

Michigan Court of Appeals, September 15, 2022 (published opinion)

In 2007 Long Lake Township brought a zoning action against Todd Maxon arising from his storage of junked cars on his property. The case was settled in 2008 when Maxon agreed to maintain the status quo – no more junked cars on his property than existed at the time of the settlement.

In subsequent years the neighbors complained that the Maxons had expanded their junk yard, but this could not be confirmed from ground level because buildings and trees obstructed views of the property. The township hired Zero Gravity Ariel to take areal photos of the property with a drone in 2010, 2016, 2017, and 2018. The photos allegedly show that the number of junked cars had increased considerably since the settlement agreement, so the township filed an abatement action against the Maxons. Invoking the Fourth Amendment, the Maxons filed a motion to suppress the drone photos. The trial court denied the motion holding that the drone surveillance was not a “search” within the meaning of the Fourth Amendment. After more trips up and down the appellate ladder than are necessary to review here, the Michigan Supreme Court remanded the case to the Michigan Court of Appeals to consider the legal question of “whether the exclusionary rule applies to this dispute” considering no past precedent has extended the application of the exclusionary rule beyond criminal proceedings.

The Court of Appeals began by noting that the U.S. Supreme Court has repeatedly rejected the application of the exclusionary rule in civil cases, explaining that the purpose of the exclusionary rule is twofold: to deter police misconduct, and to provide a remedy where no other remedy is available. The Michigan Court of Appeals concluded after a thorough review of U.S. Supreme Court caselaw that the only application of the exclusionary rule to civil cases under the Fourth Amendment to the U.S. Constitution is in civil forfeiture actions “when the thing being forfeited as a result of criminal prosecution is worth more than the criminal fine that might be assessed.”

Turning to Michigan law the Court of Appeals notes that Article 1, Section 11 of the Michigan Constitution specifically constrains the application of the exclusionary rule, and Michigan courts have held that this provision provides “less search and seizure protections than required under the Fourth Amendment.” After a review of Michigan cases the Court of Appeals observed

Assuming that the drone search was illegal, it was performed by a private party. True, that
person acted at the behest of a township official. But the exclusionary rule is intended to deter
police misconduct, not that of lower-level bureaucrats who have little or no training in the Fourth
Amendment. There is no likelihood that exclusion of the drone evidence in this zoning infraction
matter will discourage the police from engaging in future misconduct, since the police were never
involved in the first place. Rather, exclusion of the drone evidence likely will deter a township-8-
employee who works in the zoning arena from ever again resorting to a drone to gather evidence
of a zoning violation. This is not the purpose of the exclusionary rule.

Long Lake Township v. Maxon, slip opinion p. 7.

The Court of Appeals concluded that “the exclusionary rule was not intended to operate in this arena” because the objective of the township was not to penalize the Maxons, but rather to abate a nuisance through the operation of equitable remedies.

When suing county, failure to serve notice on county is not a minor procedural error

by Gary Taylor

Dewit and Dewit v. Madison County Zoning Board and Madison County Zoning Board of Adjustment
Iowa Court of Appeals, September 13, 2017

In March 2015 the Madison County Zoning Office filed civil infractions against the Dewits for several zoning ordinance violations.  The case number assigned to these infractions was CVCV034188.  These infractions were resolved through a consent order in September 2015 which required the Dewits to abate the violations within six months (by February 2016).  After the consent order was issued, the Dewits filed an application for an agricultural exemption from the county’s zoning ordinance, which the county zoning administrator denied.  On appeal, the Madison County Zoning Board of Adjustment (ZBA) affirmed the denial.

On April 20, 2016 the Dewits filed a petition for writ of certiorari challenging the ZBA’s decision; however, they filed it in the civil infraction case CVCV034188.  The county attorney accepted service of the petition, but the original notice was not included in the materials sent to or accepted by the county attorney.  The county moved to dismiss the petition on the ground that the petition should have been docketed as a new action and not as a filing in the civil infraction case.  On June 7, 2016 the district court denied the motion to dismiss, and ordered the clerk of court to transfer the petition and all related filings to the appropriate docket and to assign a new case number to the petition.

The ZBA then filed a motion to dismiss on September 1, 2017 for failure to timely serve original notice on the board.  The next day the Dewits served notice on the ZBA, but this was 135 days from the original filing of the petition on April 20.  (Iowa Rules of Civil Procedure require original notice to be served on a defendant within 90 days of filing a petition).

The Dewits contended that the original notice was served on the ZBA 80 days from the day the district court transferred the petition to a new docket with a new case number; however, at the time the district court specifically ordered that the petition “would relate back to and be deemed to have commenced on the date of filing, April 20.” Thus service of the original notice did fall outside the 90 day window.

The Dewits also contended that the county attorney’s acceptance of the petition alone is sufficient to comply with Iowa Rules of Procedure.  The court rejected this as well.

The original notice and petition are separate and distinct….The contents of the original notice are prescribed by rule.  In contrast, the petition is a pleading that sets forth a simple and concise statement of the claim or claims at issue. [While] it is true Iowa courts are committed to liberal construction of the rules of procedure to insure resolution of disputes on their merits, the failure to timely serve original notice cannot be deemed a minor or technical error.

The district court did not err in dismissing the Dewits’ petition.

Fine for zoning violation can only be imposed “upon conviction” in court

by Hannah Dankbar and Gary Taylor

Claybanks Township v Paul and Tana Feorene
Michigan Court of Appeals, December 8, 2015

Paul and Tana Feorene own 40 acres of land in Claybanks Township. They built a greenhouse, gazebo and hay barn on their property without obtaining zoning permits according to the Claybanks Township Zoning Ordinance (CTZO). The Township sued the Feorenes and requested that the trial court order them to remove the structures, but the Township was ordered to issue the zoning permits at the standard fee for the three structures.

The Township argued that the trial court did not follow CTZO and Michigan Zoning Enabling Act (MZEA). CTZO §§ 203 and 207 require a zoning permit to be obtained before construction begins and that any construction before a permit is obtained is a nuisance and must be abated. There is no question that the Feorenes violated CTZO by building the structures without permits; therefore the issue becomes the abatement of the nuisance.  The abatement could be accomplished either by razing the buildings or issuing the permits, and courts have broad discretion in granting relief appropriate to the circumstances. Once the Feorenes were notified that they needed zoning permits for the structures they attempted to get them; however, the Township conditioned granting the permits on the payment of a $3,100 fine it had already imposed on the Feorenes for violating CTZO. The Feorenes refused to pay the fine and built the buildings anyway.

CTZO §208 imposes a $100 fine “upon conviction” of violation of the CTZO, and each day the violation continues shall be deemed a separate offense.  Applying the rules of statutory interpretation, the court concluded that because the Township had not brought an action in court there could be no “conviction.”  As a result, the $3,100 fine was inappropriate.

The Feorenes claimed that Michigan Right to Farm Act (RTFA) also provided an alternative basis to affirm the trial court’s conclusion. RTFA was enacted to protect farmers from nuisance lawsuits.  To assert an RTFA the Feorenes had to prove: (1) the challenged activity constitutes a “farm” or “farm operation”; and (2) the farm or farm operation conforms to the relevant generally accepted agricultural and management practices (GAAMPs). The Feorenes did not cite any relevant GAAMPs; and so the court rejected the RTFA argument.

The trial court ruling was affirmed.

Existing landscaping insufficient to meet ordinance buffer standards

by Hannah Dankbar

Schall v City of Williamston
Michigan Court of Appeals, December 4, 2014

William and Melanie Schall brought suit to compel their neighbors, D&G Equipment, Inc., owned by Elden and Jolene Gustafson to comply with the City of Williamston’s zoning ordinance that requires a special use permit to allow outdoor display of farm implements for sale.  The ordinance also requires a landscaped buffer zone to shield plaintiffs’ property from the sales display. The Schalls sought a writ of mandamus to compel the city and its contract zoning administrator to enforce the ordinance. The trial court found that the Gustafson’s use of their property violated the city’s zoning ordinance and ordered for the zoning administrator to enforce the ordinance.

As an initial matter the Court of Appeals affirmed that the Schalls had standing to bring the suit.  As abutting neighbors, the Schells “have a real interest in the subject matter of the controversy.  Nothing in state law indicates that private parties are limited in their ability to ask the court to abate a nuisance arising out of the violation of a zoning ordinance.

The requirements for a landscape buffer are defined in § 74-7.101 as “a minimum 15 feet wide” and “a staggered double row of closely spaced evergreens (i.e., no farther than 15 feet apart) which can be reasonably expected to form a complete visual barrier at least six feet in height within three years of installation.” The planning commission can only modify this requirement with “a written request identifying the relevant landscape standard, the proposed landscaping, how the proposed landscaping deviates from the landscaping standard, and why the modification is justified.”

In the present case, there was no “written request” to modify the ordinance standards. Even assuming that the site plan and the zoning administrator’s written and oral submissions to the planning commission were sufficient to meet this standard, and that the modified landscape included utilizing existing vegetation as part of the buffer, it must “achieve the same effect as the required landscaping.” The minimum standards of the ordinance apply except if the standard is reached with existing vegetation.

At the time of the lawsuit the buffer did not meet the standard, but the question became whether the buffer will meet the standard in three years. Based on its review of the expert testimony the Court of Appeals agreed with the trial court’s conclusion that the landscaping could not meet the standards of the ordinance and, therefore, that the Gustafsons were in violation of the zoning ordinance.

The zoning ordinance is clear and unambiguous and the trial court did not err in granting  summary disposition by finding no material disputed fact that defendants’ buffer failed to comply with the zoning ordinance and therefore was an abatable nuisance per se.


Landowner prevails on First Amendment retailiation claim for Township’s stop work order

by Victoria Heldt

George T. Paeth, Margaret C. Paeth v. Worth Township (Michigan)
(United States Sixth Circuit Court of Appeals, June 8, 2012)

George and Margaret Paeth own a house in Worth Township, Michigan that was not in compliance with the Township’s five-foot setback requirement when they purchased it in 1998.  They made plans to add on to the first floor and replace the roof, which would expand the house’s footprint in the northeast and northwest corners.  After communication with Barbara Cutcher, Worth Township’s zoning administrator, the property was surveyed.  The Paeths received a land use permit from the Township in April 1999 and a building permit from the County building department in June 1999.  In 2002 the Township formed a building department, which assumed the responsibilities of the County’s building department.  Cutcher became the Township’s zoning and building administrator.

In June 2004, Cutcher sent a letter to the Paeths informing them that their house was not in compliance with the setback ordinance.  It instructed them to contact zoning administrator Lynn Laughlin to address the “serious problem.”  The Paeths submitted a variance application and Laughlin requested another property survey.  The survey showed that the 1999 survey underestimated the distance between the house and the property line.  The Township claimed that, due to the survey error, Cutcher relied on false information when she originally granted the permit.  The Zoning Board of Appeals (ZBA) voted to deny the variance, meaning the Paeths would have to correct the variance by removing portions of the house.

The matter was taken to the circuit court on three different occasions.  The circuit court eventually reversed the decision of the ZBA and granted the variance to the Paeths.  The Township appealed the case to the Michigan Court of Appeals, which dismissed the claim for lack of jurisdiction in July 2007.  In November 2007 Cutcher posted a stop work order on the Paeth’s property until they obtained a new permit.  The Paeths did not receive the required hearing before the order was posted.

Cutcher claimed that, had the Paeths requested a new permit, the matter would have been resolved quickly.  Instead, the Paeths contacted the State of Michigan Office of Local Government and Consumer Services to determine whether their 2003 permit was valid.  It concluded that it was and that the Paeths could continue work so long as their activities complied with code.  Cutcher wrote the Paeths a letter confirming the valid permit but insisting that she be allowed to inspect the property for code compliance before the Paeths complete any more work on their property.  The Paeths failed to contact her and the stop work order remained on the property until October when it was removed pursuant to a district court order.

In September 2008 the Paeths sued the Township in federal district court on four counts:  (1) violation of their First Amendment rights when Cutcher and the Township retaliated against them for appealing the ZBA’s variance decision; (2) violation of the Equal Protection Clause; (3) violation of substantive and procedural due process because of the issuance of the stop work order without notice or an opportunity to respond; and (4) a request for mandamus and superintending control.  After a five day trial, the court ruled in favor of the Paeths on the First Amendment claim.  It ruled in favor of the Township on count two and on the substantive due process claim in count three.  In regards to the procedural due process claim, the court also ruled in favor of the Paeths.  It noted that the Paeths have “a property interest in continuing construction on their home” and that the Township’s stop work order without the necessary prior notice deprived them of it.  It concluded that the stop work order was contrary to state law and constituted a procedural due process violation.  The court determined count four to be moot.  The Paeths were granted a little more than $200,000 in attorneys fees.

The Township appealed the procedural due process violation.  The Court noted that it is not necessary to determine if the Paeths had a property interest in the construction to determine if a procedural due process violation exists.  Procedural due process claims do not answer to local statutes or ordinances; rather a federal framework consisting of three factors must be considered to make the determination.   The Court analyzed (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest.

The Court determined there was not a due process violation.  The Paeths were given sufficient due process since the order came with instructions for how to apply for a new permit.  The process to apply for a new permit is relatively simple and the Paeths would have been only mildly inconvenienced.  In addition, the Government’s interest in the matter was fairly significant.  A fair amount of time had passed since the property was last inspected and evidence existed that the house was not in compliance with code.  The Township had a rightful interest in preventing any work that might further the property’s non-compliance.  The Court reversed the ruling and vacated the damages associated with it.

The Township also appealed the First Amendment ruling, arguing that the evidence was insufficient to prove a violation took place.  It purported that the “adverse action” and “causal connection between the action and protected conduct” requirements of a retaliation claim were not met.  The Court disagreed, concluding that the Township’s issuance of the stop work order and failure to provide notice constituted adverse actions.  Furthermore, sufficient evidence was presented to show a causal connection between the adverse action and the right to appeal the ZBA’s decision.  Testimonies from Cutcher and a member of the ZBA supported the connection.  The Court affirmed the lower court’s ruling on this claim as well as the damages for the violation and the attorneys fees.

Code enforcement official subject to suit for unlawful inspections

by Victoria Heldt

Jacob v. Killian
(Federal Sixth Circuit Court of Appeals, September 12, 2011)

In October of 1999, Killian, a code enforcement officer for the Township of West Bloomfield, charged Jacob for having “blight” and “junk vehicles” in his yard.  He issued the violation after learning of 10 similar prior complaints regarding Jacob’s property.  Jacob pled guilty to the charge, subject to a plea agreement in which he agreed to clean up the area and remove the fence supports within 14 days.  Killian returned to inspect Jacob’s property pursuant to the agreement and discovered he had not complied with the terms.  Subsequently, Jacob served a 30-day jail sentence over portions of October and November 1999.

Jacob sued Killian, claiming that Killian continued to enter and inspect the curtilage of his property without a warrant after Jacob’s incarceration, and that this activity was a violation of his 4th Amendment rights.  Killian argued that he should be granted a summary judgment based on qualified immunity.  The principle of qualified immunity protects government officials who perform discretionary functions from civil liability so long as their behavior does not violate clearly established constitutional rights.  The district court denied his request.

On appeal, Killian argued that Jacob lacked sufficient evidence to support the claim that Killian ever entered his backyard after the incarceration (except for on January 7, 2000, which is relevant to a separate claim).  Jacob had testified that he saw Killian enter his property several times and saw him take photographs on some of the occasions.  The Court noted that Killian had previously admitted to inspecting the property on June 26, 2001, which supports Jacob’s testimony.  Additionally, the Court found that Jacob’s testimony itself is enough evidence to defeat a request for summary judgment.

Killian then argued that he should be granted qualified immunity since he completed the inspections of the property pursuant to an order.  The Court stated that the “just following orders” defense holds no merit in the court system.  Furthermore, Killian never provided any actual evidence that he was ordered by his superior within the Township to inspect Jacob’s property subsequent to Jacob’s incarceration.

Killian submitted a picture taken on January 7, 2000 of Jacob’s property as evidence that he never entered the protective curtilage of Jacob’s home.  He admitted that he visited the property on that date, but that the scenery in the picture proves that he never encroached on a constitutionally protected area.  The Court decided not to address this claim since the issues regarding the other incidents in the case would still prevent a favorable ruling for Killian.

Next, Killian alleged that Jacob consented to the inspections as a term of his probation.  The Court determined that this claim had no merit, because Jacob was never actually put on probation.  The terms of his plea bargain stated he would be put on probation if he complied with the terms of the agreement and evaded time in jail.  Jacob was found to be in violation of the agreement and served a 30-day jail sentence; therefore, he was never put on probation.  Additionally, the Court noted that even if Jacob had received probation, it would not mean that he waved his fourth amendment rights regarding entrance onto his property.

After denying Jacob’s request for attorney’s fees or sanctions against Killian, the Court affirmed the district court’s denial of summary judgment.

Landowner fails to establish city’s wrongful action when seeking to stop enforcement action

by Melanie Thwing and Gary Taylor

City of North Oaks v. Sarpal
(Minnesota Supreme Court, May 11 2011)

Dr. Rajbir and Dr. Carol Sarpal own a home in the City of North Oaks, Minnesota. The property is subject to two different restrictions. The first is a fifteen foot easement by the North Oaks Company over the northern and western edges of the property for a future trail. The second is the city’s zoning setback regulation that states no building can be within thirty feet of the property line.

In 2006 the Sarpals wanted to build a shed on their property. The Architectural Supervisory Committee (ASC) required the plans for the building before they could apply for a building permit. The ASC also required a “as-built survey” with the specific location of the shed. A City employee provided a survey and told the Sarpals that was the document they needed. This survey shows the “proposed house” and does not encroach on either restriction.

The ASC approved the shed and the Sarpals signed and submitted an application to the City for a building permit that was granted. As the Sarpals started construction they measured from the house as it was built on the property.

After the foundation was laid and the frame was constructed the City inspector approved the construction. However, one year after construction the Sarpals received a letter from the City stating that the shed encroached on the trail easement. It was at this point that the Sarpals noticed the survey obtained from the City was not an “as-built” survey but rather for a “proposed house.”

The Sarpals applied for a variance, which was denied. They then requested an extension of time because concrete foundations poured during winter run a higher risk of cracking. This City approved this request.

After the Sarpals failed to move the shed later in the year the City filed an action in district court requesting an order for the Sarpals to remove it. After a bench trial the court found that the City was equitably estopped from enforcement of the zoning ordinance because they provided the survey. The City appealed to the Court of Appeals, which affirmed.

The City then petitioned for review with the Minnesota Supreme Court. The City argues that the district court abused discretion when it equitably estopped the city from enforcing the zoning ordinance.

For an equitable estoppel claim there must be: 1.) Wrongful conduct on the part of the government, 2.)  the party must have reasonably relied on the wrongful conduct, 3.) The party must have incurred a unique expenditure in reliance on the wrongful conduct,  and 4.) The balance of the equities must weigh in favor of the estoppel.

The City argues that the mistake with the survey does not constitute “wrongful conduct,” because government action that is erroneous does not automatically constitute “wrongful” action, nor is it established by a simple mistake or imperfect conduct. The Supreme Court agreed.  In this case the government action was nothing more than a simple mistake. This does not fulfill the first element necessary for a equitable estoppel.

The district court had also found that the City acted wrongfully when granting a permit based on the plans. However, the City is entitled to rely on the accuracy of the documents provided by landowners. The Sarpals certified the information in the application packet was correct. There is no reason why the City should have noticed or corrected the error in regards to the survey. The district court abused its discretion when it dismissed the City’s claims against the Sarpals. The Minnesota Supreme Court reversed the Court of Appeals decision and remanded the case for further proceedings.

Redetermination of high water mark does not invalidate previous permit

by Melanie Thwing

Oneida County v. Collins Outdoor Advertising
(Wisconsin Court of Appeals, April 26, 2001)

Collins Outdoor Advertising began looking into constructing a billboard in the Town of Sugar Camp, Wisconsin in 2003. The Town of Sugar Camp is generally un-zoned, but Oneida County has zoning authority over land within 1,000 feet of the ordinary high water marks of navigable lakes. In this particular area there are two lakes, Jennie Webber Lake and an unnamed lake 34-16.

Keith Carson, a Collins’ employee, obtained a lease from the landowners of the desired location. A signature was given from the Town’s foreman stating the land was un-zoned and the Department of Transportation (DOT) approved a permit application. The DOT also instructed Carson to check with the Department of Natural Resources (DNR) because the land boarded a swamp. The DNR approved the site but then instructed Carson to check with the County to make sure no zoning authority existed.

After meeting with Theresa Kennedy, a permit specialist for the County, and looking at several zoning maps and aerial photographs it was determined the location would not pose a problem with Jennie Webber Lake. It was Carson’s responsibility however to determine the distance from 34-16 which he did with a handheld GPS. This also met the 1,000 foot requirement.

In July 2003 the billboard was erected. Then, in October the County sent a letter indicating there had been complaints that the sign was illegally constructed. This letter referenced a “large wetland complex” attached to Jennie Webber Lake and stated that, when taking these wetlands into account, the sign was only 10 feet from the high water mark.  Collins responded to this complaint in January of 2004 with a letter reciting the above facts.  The County did not respond again until September 2006.  The County stated it had re-determined the high water mark and, as a result, had determined that the sign was 600 feet away from Jennie Webber Lake.  In August 2008 the County filed for injunctive relief and damages in the circuit court. Summary judgment was granted in favor of the County. Collins was ordered to remove the sign and pay $25,000 in forfeitures.

Collins appealed to the Wisconsin Court of Appeals, arguing that when the sign was originally constructed the County’s zoning map identified the shorelines and any redeterminations cannot render the sign unlawful.

Under Wis. Stat. § 59.692(1m),(6) the state is required to adopt and enforce shoreland zoning ordinances. Each county is required to include “[m]apped zoning districts and the recording, on an official copy of such map, of all district boundary amendments.” Wis. Admin. Code § NR 115.05(4)(i). Also the DNR must be given notice for any interpretation of a map or amendment.  The County argued that it was unreasonable for Carson to rely on the zoning map rather than on-site measurements; however the Court rejected this argument.  The Court of Appeals observed that if Carson had determined the measurements of high water mark himself they would have no legal force. The ordinance does not give landowners authority to determine high water marks. That burden is placed on the County and DNR to set ordinary high water mark.  This determination can be very subjective. 

The County’s argument that “[t]he standards for such determinations are clearly set forth in the ordinance,” was found to be unpersuasive.  The County’s argument would require landowners to roam large portions of private property to identify the correct high water marks. Carson followed the ordinance by contacting the zoning department who ultimately provided the map for determination.

Finally there is no conflict between the zoning map and the zoning ordinance. Ordinary high water marks are usually identified on official maps or on aerial photographs. If the public were not allowed to put any reliance on the maps, the Court questions why they are required or why the DNR must be contacted when a question arises about the maps.

It is undisputed that at the time the sign was built it was over 1,000 feet from the shoreline as then determined, and the County does not dispute that the sign would be legal as an existing nonconforming structure using that determination. The decision of the circuit court was reversed and remanded.

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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