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.

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.

Issuance of building permit by Minneapolis planner a discretionary function

by Melanie Thwing

Harmsen v. City of Minneapolis
(Minnesota Court of Appeals, Aug 24, 2010)

The Harmsens own numerous rental properties near the University of Minnesota campus in Minneapolis. Wishing to build more rentals, they purchased a single family home and filed for a demolition permit as well as a building permit for a new duplex to be built in its place.

City planners in Minneapolis approve 1-4 unit dwellings, which for building permits requires the planners to complete a checklist. Required criteria include the site plan, zoning classification and interior/exterior plans. The Harmsen’s plans met the checklist, and McCartney, who is a senior city planner approved both permits; however, according to the Minneapolis zoning ordinance duplexes must be constructed on a lot with at least 10,000 square feet, unless an existing duplex is being replaced.  The lot that was purchased did not meet this requirement, but McCartney did not check into the existing structure before issuing the permits.  The existing structure was demolished and a foundation for the duplex was poured.  Soon after, neighborhood groups contacted the city with concerns. On May 29th the city revoked the permit via letter (the letter was dated May 8th ) and on May 30th a stop-work order was posted.

After the Harmsen’s request for a variance was denied, they filed suit in district court. Summary judgment was granted for the city on the grounds of the doctrine of discretionary immunity.  The district court determined there was a lack of evidence sufficient to support Harmsen’s claim of equitable estoppel. The Harmsens then appealed to the Court of Appeals, arguing that the district court erred in granting summary judgment.

Discretionary immunity is given for discretionary functions, which typically include planning-level decisions involving weighing social, political, and economic factors. This however, does not include day-to-day ministerial functions of the government. Previous Minnesota caselaw has affirmed that the issuance of a building permit is a discretionary function because an employee must “make a judgment as to whether plans submitted in support of the application for the permit constitutes a permissible use of the property in the area involved.”  The Harmsen’s argue that use of a checklist does not constitute the use of discretion. After reviewing the checklist the Court concluded that city planners are trusted to make a number of discretionary decisions in the permit granting process. 

The Harmsens pointed out that a narrow exception to the rule was articulated by the Minnesota Supreme Court in Snyder v. City Minneapolis.  Under Snyder, “ city employees do not have the discretion to approve permits in clear violation of the law, and an applicant cannot reasonably be charged with knowledge of violation if the city maintains an unwritten policy contrary to published law.” The Harmsen’s first argue under Snyder that the city was negligent when it issued the permits and that thus this was not a discretionary function. Further the Harmsen’s argue that there are unwritten guidelines when approving certain permits that allow a little bit of latitude on lot sizes. The Court of Appeals found that the Harmsens did not present any evidence to to substantiate this clam. Further § 546.410 had been in place since 1995, and the Harmsen’s own many properties in the area. Again, the court rejects the precedent from Snyder and the city maintains its discretionary immunity.

Finally the Harmsen’s argue that the city should be equitably estopped from denying the permit because they relied in good faith on the city. An equitable estoppel may be given when the owners “(1) rely in good faith (2) upon some act or omission of the government, (3) and have made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights which he ostensibly had acquired.”  For this claim, the Harmsen’s sole claim of municipal misconduct was that the city held the revocation letter from May 8th when it was dated, to May 29th when it was sent.  McCartney testified, however, that she did not learn of the problem until shortly before the letter was sent. Electronic evidence also proved this. The Court of Appeals found that this alone was not a sufficient showing of malfeasance to warrant equitable estoppel. The Court of Appeals affirmed the judgment of the district court.

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