Court remanded variance case to determine whether board relied on existing nonconforming use when approving variance

by Gary Taylor

Arnburg v. City of Earlham Board of Adjustment
(Iowa Court of Appeals, April 30, 2014)

Farmer’s Cooperative (FC) owns a number of grain bins in Earlham, and temporary grain storage bins outside the city limits.  These facilities predate Earlham’s zoning ordinance, and do not conform to existing zoning regulations.  FC purchased land adjacent to its existing operation where it intends to build additional grain bins, and filed an application to have the land rezoned from residential and commercial to “M-Industrial.”  The rezoning request was approved.  Later, FC requested a building permit for the additional grain bins, but was denied by the zoning administrator because the proposed bins would not comply with height or setback requirements.  FC filed a variance request with the Earlham Zoning Board of Adjustment (ZBA) to allow construction of bins with no setbacks, and heights that exceeded the height limitations.  The ZBA approved the variance, but Arnburg [presumably a nearby resident] filed an action in district court.  The district court remanded the case to allow the ZBA to hold an additional hearing and make written findings of fact.

At the rehearing FC presented evidence on the need for a variance, including economic data on the profitability of conforming structures and evidence of an agreement with the city showing that the city intended to ease the concerns of neighboring residents.  Local residents, on the other hand, presented evidence of existing problems with grain dust covering nearby homes and sidewalks, and discussed problems on nearby streets due to heavy truck traffic.  They also alleged that the proposed bins would create a safety hazard due to both their height and proximity to the lot lines.  The ZBA issued an oral and written opinion granting the variance, finding that the residents’ concerns had been addressed by an agreement between the city and FC, that the bins would not alter the character of the city, and that FC’s economic analysis proved the land could not be used profitably without the variance.  The case went back to district court, which affirmed the ZBA’s decision on summary judgment.

At district court Arnburg contended the ZBA acted illegally by allowing for the expansion of a nonconforming use.  The city disagreed that the existing bins are a nonconforming use, and the variance in fact expanded a nonconforming use even if the existing bins were judged to be such.  The Court of Appeals found that, contrary to the determination of the district court, a genuine issue of fact exists in the case that precludes summary judgment.  The Earlham Code concerning variances provides in part that: “no nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.”  In reviewing the ZBA’s findings of fact, the Court of Appeals found conflicting evidence as to whether that language was satisfied.  On the one hand, the ZBA found that the variance would not create a new business, but rather only expand an existing business.  The Court considered this to be evidence that the ZBA was not considering the height or setbacks of the building but rather the business itself.  On the other hand the ZBA also stated as justification for the variance the fact that FC “also has bins that exceed the local ordinance standards presently.”  With both these statements in the ZBA’s findings, the Court found that a genuine issue of material fact existed and remanded the case for further proceedings.

Effect on county tax base not relevant to decision to create rural improvement zone

by Gary Taylor

Homeowners Association of the Coves of Sundown Lake v. Appanoose County Board of Supervisors
(Iowa Court of Appeals, March 26, 2014)

The Homeowners Association of the Coves of Sundown Lake (Association) petitioned the Appanoose County Board of Supervisors (Board) to establish a rural improvement zone (RIZ) surrounding the lake for the purpose of diverting future property tax revenue growth towards making improvements in the Sundown Lake area.  The petition contained 172 signatures, representing at least 25% of the residents and 25% of the total assessed value of the proposed zone.  The Association requested a public hearing before the Board, and a hearing was held November 2, 2012.  Information was presented during the hearing concerning the need for improvements to the lake; most notably to alleviate the effects of silting.  The Board also discussed the requirements for establishment of a RIZ and the loss of revenue to the county if a RIZ was created.  The statutory requirements necessitating that the Board hold a hearing were not discussed; however, the Board denied the request on November 13 because the Association had failed to meet the statutory requirements for Board consideration, and also because of the loss of tax revenue to the county if a RIZ were created.  On appeal, the district court found the Board was precluded from examining whether the petition had satisfied the statutory requirements because the Board had in fact scheduled and held the hearing. The district court also concluded that the Board acted illegally in considering the impact of a RIZ on county tax receipts. The Board appealed to the Court of Appeals.

After confirming that the Association had standing to bring the initial suit before the district court, the Court of Appeals confirmed both conclusions of the district court.  First, the Court of Appeals examined the statutory scheme of Iowa Code 357H.1 through 357H.4 (procedures for creating RIZ) and concluded that once the Board called a hearing, the only matters it was empowered to consider were the merits of the petition, not whether the petition itself met the statutory requirements.

This interpretation avoids the element of unpredictability found in this case. The Board’s interpretation of the chapter would allow a board to set a hearing for the purpose of determining whether an improvement is needed, hold the hearing on the merits, and then confound the petitioners by deciding – after the hearing on the merits an without discussion – that the hearing itself should not have occurred.  We find nothing in the chapter to evidence a legislative intent to create such inefficiencies.

Second, the Court of Appeals affirmed that the Board was not to consider the effect of the RIZ on the county’s tax base.  “The chapter directs a board to establish a zone if the area is in need of improvements. The consideration is specifically and unambiguously limited to the needs of the area under consideration and does not include issues pertaining to the county as a whole….The Board acted improperly by considering the impact the zone would have on county finances.”  The Court of Appeals affirmed the district court order for the Board to consider the Association’s petition using a proper interpretation of chapter 357H.

Action of Amana Colonies Land Use Board of Trustees in approving hotel and convention complex was quasi-judicial

by Gary Taylor

Catherin Oehl, et al, v. Amana Colonies Land Use District Board of Trustees
(Iowa Court of Appeals, March 26, 2014)

(Note: For those Iowans curious about the history of the special land use legislation affecting the Amana Colonies, Iowa Code 303.41 et seq.,  the facts of this case are repeated in detail.)

The Amana Colonies are unincorporated villages in Iowa County. In 1932, the Amana Society, a private corporation, owned the 26,000 acres in which the Amana Colonies are located. Development within the Amana Colonies was effectively managed by deed restrictions and covenants. In 1982, the Iowa Supreme Court held that land use restrictions in the deeds were invalid and unenforceable, effectively nullifying the informal land use control system governing development within the Amana Colonies. In response, the Iowa legislature authorized the creation of special land use districts for the purpose of preserving the “distinctive historical and cultural character” of the districts so created.*** Although the statutory language authorizing the creation of land use districts is phrased in general terms, the definition of eligible districts and legislative history make clear that the statute was created specifically to allow the residents of the Amana Colonies, collectively, to manage development in their historically and culturally significant community in a manner consistent with community traditions and values.

Voters in the Amana Colonies approved the creation of the Amana Colonies Land Use District (ACLUD), and elected a seven-member Board of Trustees. The Board adopted a Land Use Plan that emphasizes historic preservation. The Land Use Plan provides for the creation of Historic Preservation Districts (HPD). The Land Use Plan also establishes an Historic Preservation Committee (HPC) tasked with consideration of applications for Certificates of Approval (COA) for “[a]ny construction, alteration, demolition, or removal affecting a significant exterior architectural feature of any structure within an HPD.” The Board may issue a COA for construction of a structure in an HPD after review and recommendation by the HPC.

In May 2010, the Cutlers applied for a COA to build a hotel, convention center, and banquet complex as additions to their restaurant.  The HPC unanimously approved the proposal and sent it to the Board, where it was tabled for 12 months while multiple hearings were held.  The Appellants in this case opposed the COA and presented their views at these hearings. Then in 2011 the Cutlers presented an update application.  The HPC forwarded to the Board without a recommendation.  The Board initially voted 3-3 on that application, but after the Cutlers made changes to the proposal the Board reconsidered and voted 4-2 in favor of the application.  The COA was issued and the Appellants appealed to the ACLUD Board of Adjustment (BOA), which under Iowa Code 303.54 is empowered to “make special exceptions to the terms of the land use plan which are in harmony with its general purpose and intent and in accordance with the general or specific rules of the plan.”  The BOA determined it did not have the authority “to review and overturn the essentially legislative decision of the Board of Trustees to grant applications such as that of the Cutlers.”  Appellants then challenged the COA itself in a declaratory action filed in district court approximately 105 days after the issuance of the COA, and 70 days after the BOA decision. The district court dismissed the case as improper and untimely.

The Iowa Supreme Court stated in Sutton v. Dubuque that a certiorari action (as opposed to a declaratory action) is the exclusive remedy for challenging a quasi-judicial action, and such actions must be filed within 30 days of the decision being challenged.  The question in the present case, therefore, was whether the action of the Board of Trustees in issuing the COA was a quasi-judicial action.  The Court of Appeals determined that it was.  A tribunal is exercising quasi-judicial authority when “(1) the questioned act involves a proceeding in which notice and an opportunity to be heard are required; (2) a determination of rights of parties is made which requires the exercise of discretion in finding facts and applying the law thereto; or (3) the challenged act goes to the determination of some right the protection of which is the peculiar office of the courts.”  The Court of Appeals acknowledged that the Land Use Plan declares determinations about COAs to be “legislative policy determinations,” but further recognized from prior caselaw that it “must look to the nature of the act regardless of the label applied to it.”  In reviewing the record the court agreed that contentions by the Appellants that the Cutlers’ proposal did not meet several requirements found in the Land Use Plan – including those for yard size and parking – were all complaints that the Board did not properly apply the facts to the regulations – “complaints arising out of the Board’s quasi-judicial functions and not its legislative functions.”  Because the Board’s decision was quasi-judicial in nature, the Appellants’ failure to file a certiorari action in a timely manner warranted dismissal of the case.


 *** 303.41  Eligibility and purpose.

A land use district shall not be created under this subchapter unless it is an area of contiguous territory encompassing twenty thousand acres or more of predominately rural and agricultural land owned by a single entity which has within its general boundaries at least seven platted villages which are not incorporated as municipalities at the time the district is organized. The eligible electors may create a land use district to conserve the distinctive historical and cultural character and peculiar suitability of the area for particular uses with a view to conserving the value of all existing and proposed structures and land and to preserve the quality of life of those citizens residing within the boundaries of the contiguous area by preserving its historical and cultural quality.


No constitutional right to operate a mobile vending cart

by Gary Taylor

Anthony Browne v. City of Iowa City
(Iowa Court of Appeals, February 19, 2014)

The city of Iowa City denied Anthony Browne’s application for a mobile vending cart permit.  He was one of eight applicants vying for six available permits to operate downtown.  The city created a matrix to score the applications.  One of the criterion in the matrix was past satisfactory experience working with Iowa City.  Because Browne had no prior experience with the city he received a low score on that criterion.  He ultimately finished seventh out of the eight applicants.  Browne requested and was granted a licensing hearing before the city council.  In the process he was provided with all emails and other communications concerning the permitting process.  The city council affirmed the denial.

Browne argued that the city violated his due process rights by, among other things, including what he referred to as a “seniority criterion” into the matrix and not giving him credit for successful experience working in other communities.  The district court ruled in favor of the city and the Court of Appeals affirmed.  Reviewing multiple federal and state cases, the court found that Browne has no constitutionally protected liberty or property interest in his unilateral expectation to receive a mobile vending permit.

Any right plaintiff has to earn a living through a food cart, like other intangible employment rights, arises from state law and does not spring from the fundamental guarantees of the Constitution. Municipalities in the United States have a history of stringently regulating or even prohibiting food cart vendors; thus, the right to freely operate a food cart is not “deeply rooted” in our Nation’s history and traditions. Nor is the right to freely operate a food cart implicit in our concept of ordered liberty. Therefore, the court finds that plaintiff fails to allege a property right that is protected by the Constitution and does not state a substantive due process cause of action as a matter of law.

The court went further to state that even if he had such an interest, he was afforded appropriate process, including notice, full disclosure, of all city communications regarding the permitting process, and the opportunity to be heard.

Resolution to create pocket park is not an ordinance

by Gary Taylor

Rickie and Darlene Suiter v. City Council of the City of Princeton
(Iowa Court of Appeals, February 5, 2014)

The Suiters own property in Princeton bounded on the east by the Mississippi River and on the west by South River Drive.  The property in dispute in this case abuts the Suiter property on the north.  It is zoned R1-Residential.  It was the subject of a past court case between the Suiters and the city which concluded with the title to the property being awarded to the city.

In September 2012 the city adopted a resolution declaring the property “shall from this day forward be used as a public park and/or green space in accordance with the permitted use under the R-1 zoning district.”  The Suiters sued the city, raising a number of claims.  The primary claim concerned the legal effect of the resolution.  The Suiters claimed that the resolution was “null and void” because the city “failed to comply with Iowa Code 414.4 [and the Princeton City Code] by failing to first publish notice of a public hearing and to hold a public hearing on the proposed reclassification of the permitted use before adopting” the resolution.

The Court of Appeals disagreed with the Suiters.  The notice provisions of Iowa Code 414.4 only apply to ordinances.  The city’s action was correctly characterized as a resolution since there was no change to the zoning of the property and also no change in the city’s comprehensive plan.  Princeton’s R-1 district allows for public or private parks as permitted uses, and so the resolution did not result in a de facto change in zoning either.

Fire marshall permitted to issue citation under International Property Maintenance Code

by Gary Taylor

City of Council Bluffs v. Limmer
(Iowa Court of Appeals, February 5, 2014)

Limmer owns several rental properties in Council Bluffs.  in December 2010 he certified to the city that he had inspected one of his properties located on Avenue C and that it was in compliance with all of the city’s rental standards, including smoke detectors.  However, on February 2, 2011 a fire occurred at the Avenue C property and one occupant was injured. The city fire inspector inspected the property that day and found no smoke detectors present.  This was reported back to the city, and on February 15 other city officials also inspected the property and found several other code violations in addition to the absence of smoke detectors.  The next day a notice of violation was issued by the city housing inspector to Limmer setting forth a number of violations of the “International Property Maintenance Code (IPMC) and/or city code.”  Then on February 23 the fire marshall’s office issued four citations including the one at issue in this case, which cited Limmer for “unlawfully and willfully” violating city code and the IPMC by not providing smoke detectors.  The housing inspector did not learn of the fire marshall’s citations until later.  In May Lemmer notified the housing inspector that he had corrected the deficiencies, and when she re-inspected the properties she agreed.

At trial over the fire marshall’s citations, the housing inspector testified that the fire marshall’s citations had been issued without her knowledge, and that it was not unusual for her to receive complaints about Lemmer’s properties and to find upon inspection that they did not meet code, but that she personally had never dealt with Limmer without giving him a minimum of 30 days to bring his property into compliance.

The fire marshall’s office representative testified he believed Iowa Code 364.1 gave him the authority to issue the citations “to preserve the rights, privileges, and property of the city or its residents and to preserve and improve the peace, safety, health, welfare, comfort and convenience of its residents.”  Lemmer countered that the “more specific” language of the IPMC procedures “trump the more general grant of authority conferred by the Iowa Code.”

The Court of Appeals disagreed with Lemmer.  After reviewing relevant provisions of Iowa Code and the IPMC, the court concluded that the fire marshall representative had the authority, as a “legal officer” under the IPMC, to issue a citation with a civil penalty for a violation of the city code, even though the housing inspector had already issued a notice of violation for the same offense.  The fire marshall’s office was not required to provide a notice of violation prior to issue the citation because under the IPMC it is only the code official who is first required to first issue a notice.  The Iowa Code, the City Code, and the IPMC all include language permitting a city or designated city officer to seek an additional form of relief to correct a violation or punish a violator.  “There simply is no conflict between the internal sections of the IPMC, the IPMC and the City Code, or the IPMC and the Iowa Code.”

Conditional rezoning agreement limits processing and retail sales to deer season

by Kaitlin Heinen and Gary Taylor

Patricia D. and Michael P. Fowler v. Muscatine County Board of Supervisors
(Iowa Court of Appeals, October 23, 2013)

Patricia and Michael Fowler asked the Muscatine County Zoning Commission to rezone their property from A-1 agricultural to C-1 commercial, to permit the operation of a seasonal deer processing facility and retail counter. The Fowlers executed an agreement that restricted the property’s use to “[o]nly wild game processing….[r]etail products in the wild game category…and supporting wild game products….” This agreement included a description of “Steve’s Meat Shop” and its products. Once executed, the commission recommended that the Muscatine County Board of Supervisors approve the zoning request, which the board did, passing an ordinance that rezoned the Fowlers’ property accordingly.

The Fowlers petitioned to have their property rezoned again to “add service of ready-to-eat food,” such as hot sandwiches. The commission recommended that the board deny this request; the board did so. The Fowlers sought to annul and vacate the board’s denial of their application in district court. The board resisted, and additionally argued that retail services could only be offered seasonally. The district court allowed the retail services to be conducted year-round, but denied the Fowlers’ request to include “ready-to-eat foods” or a “deli shop.” Both the Fowlers and the board appealed to the Iowa Court of Appeals.

The issues before the court in this case include: “(1) whether an ordinance that rezoned certain agricultural property to a commercial classification authorized the operation of a year-round retail establishment and (2) whether the retail establishment could sell ready-to-eat foods.”

The court initially observed that if an “ordinance is plain and its meaning is clear,” the court cannot search for meaning beyond those express terms. However, if the “ordinance is ambiguous, it is appropriate to apply the general rules of construction for statutes.” The board argued the “conditional rezoning agreement contains ‘no reference to year-round retail service,’” so the district court erred in the absence of such words to interpret. The Fowlers countered that the conditional rezoning agreement contains no time restrictions for the retail services, so the district court correctly concluded that they could operate year-round.

Both parties rely on the preamble of the ordinance—“the Property is…to be used as a seasonal deer processing and retail service.” The board argued “the term ‘seasonal’ ‘unambiguously and undeniably places limits on the privileges conferred by the spot zoning.’” The Fowlers countered the term “requires deer processing to occur on a seasonal basis but does not limit ‘retail service.’” The court reasoned that these competing arguments in regards to the term “seasonal” meant that there was ambiguity in the ordinance.

When confronted with an ambiguity, we may consider, among other factors: (1) the object sought to be attained (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) the common law or former statutory provisions, (5) the consequences of a particular construction, (6) the administrative construction of the statute, and (7) the preamble or statement of policy.

The court examined the circumstances surrounding the ordinance’s passage. “At the first meeting with the zoning commission, Michael Fowler explained his reasoning for his rezoning request as follows: ‘[W]hat we’d like to do is to have a seasonal deer processing. We’d like to have a small retail counter that would just be open between October and January.’” Further, when asked whether the retail services would only be open during that period, he replied, “Yeah, deer season.” This resolves the ambiguity of the term “seasonal,” and thus the court concluded the Fowlers’ retail services were to operate seasonally. The court reversed the district court’s judgment in this part.

As for the second issue, the Fowlers argued the court erred in concluding they could not sell ready-to-eat foods at their retail counter. They contended that “retail service” encompasses the sale of ready-to-eat foods. However, the conditional rezoning agreement authorizes them to “prepare products for resale.” The court agreed with the district court that the conditional rezoning agreement did not authorize the sale of deli-style sandwiches that could not “be considered wild game specialty items.” In his statements to the zoning commission, “Michael Fowler stated that the retail store would be limited to wild game, ‘nothing domestic, like beef or pork.’” In addition, “Patricia Fowler explained that deer meat would be bought from a farmer and then sold to the customers.” These statements conclude that the retail service does not encompass ready-to-eat foods. The court affirmed the district court’s judgment in this part.

Issue preclusion can be applied to bar zoning board proceedings, but applicants for 1998 and 2011 special exceptions were different

by Gary Taylor

Prybil Family Investments, Ltd., v. Board of Adjustment of Iowa City
(Iowa Court of Appeals, September 5, 2013)

In July 2011 Streb Construction Company filed an application for a special exception to operate a wet batch concrete plant on land zoned “General Industrial”  in the Scott-Six Industrial Park in Iowa City.  After a public hearing the Iowa City Board of Adjustment (Board) approved the special exception in September 2011.

Prybil Family Investments owns agricultural property adjacent to the land in question.  The land has been used for farming, and will continue to be for the forseeable future. Prybil filed a writ of certiorari to contest the Board’s decision.  Prybil’s main argument was that the same property owner filed an application for a special use permit to operate a cement plant on the same property in 1998, and was denied.  Therefore the doctrine of issue preclusion prevented the Board from considering the 2011 application (issue preclusion prevents the same issue from being reconsidered again in a later proceeding).  Alternatively, Prybil argued that the Board’s decision was not supported by substantial evidence. The district court disagreed on both claims and allowed the permit to stand.  Prybil appealed to the Iowa Court of Appeals.

The Court of Appeals began by noting that Iowa case law has never addressed whether the concept of issue preclusion applies to zoning board determinations.  It did acknowledge that in Johnston v. Christenson, the Iowa Supreme Court stated that “an administrative adjudication by an entity such as the board of adjustment can have a preclusive effect in a judicial proceeding..”  It also referenced Am. Jur. 2d, Zoning and Planning, which states that “res judicata (a concept that encompasses issue preclusion) applies to administrative zoning decisions in order to promote finality of decisions unless it is shown that there has been a substantial change of circumstances since the earlier ruling.” The Court, therefore, determined that issue preclusion can be applied to bar a second application for a special exception if the following elements, cited in Johnston v. Christenson, are met: (1) the issue must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made in the prior action must have been essential and necessary to the resulting judgment.” “However,” the Court noted, “if there has been a substantial change of circumstances” the concept will not apply.

Before beginning its analysis of the four factors it cited, it determined that, in any event, Prybil’s issue preclusion claim failed because the applicant for the 2011 special exception was not the same as the applicant for the 1998 special exception. Even though “Streb Construction Company” applied for the 2011 permit, and “A.F. Streb” applied for the 1998 permit the Court concluded that “Prybil presented no evidence showing that the parties were identical or [in close legal relation].”  The Court went on, however, to note that Prybi’s claim would also fail on the Christenson factors.  The mobile wet batch plant desired in 2011 incorporates improved environmental protections.  The 2011 and 1998 applications were for different lots in the Industrial Park.

After a lengthy discussion about what issues related to the substantial evidence claim were properly preserved for appeal by Prybil, the Court addressed the substantial evidence claim itself.  Prybil contended that the dust pollution from the plant will interfere with Prybil’s use an enjoyment of its property by damaging crops, but the Court did not disagree with the Board’s conclusion that conditions attached to the special exception – requiring Streb to pave the surrounding roads and plant trees to act as a screen from adjacent properties – were sufficient to satisfy the concern.  Prybil also contended that its property values would be diminished by the plant, but the Court again found sufficient evidence to support the Board’s conclusion that there were no Heavy Industrial zones in Iowa City where the plant could locate by right and any opinions on effect on future property values were merely speculative.  Although Prybil offered contrary testimony from two realtors, the Court said that the information presented at the hearing was sufficient to support the Board’s decision.

Landowner not entitled to injunction when ownership of easement rights in dispute

by Kaitlin Heinen

Hawkeye Land Company v. City of Coralville, Iowa
(Iowa Court of Appeals, June 12, 2013)

Hawkeye Land Company filed an application for injunction on April 6, 2012, which involved a parcel of land and railroad tracks located on the southern end of Coral Ridge Avenue in Coralville, Iowa. The application was filed in response to the City of Coralville’s decision to extend Coral Ridge Avenue over the tracks in order to provide access to a developing subdivision. Prior to construction of the extension, “Coralville did not initiate eminent domain proceedings.” The City negotiated with Heartland Rail Corporation, believing that Heartland, rather than Hawkeye, had the rights to approve the street extension over the railroad tracks. An agreement between Coralville and Heartland was reached.

Both Hawkeye and Heartland claimed to have received ownership from the railroad’s original owner, Chicago Pacific Corporation (CPC). Heartland claimed to have purchased rights from CPC and to have been granted rights to operate the rail line including the right to grant easements, such as construction of a street over the tracks. Coralville argued its purchased such an easement from Heartland. On the other hand, Hawkeye argued it purchased rights from CPC including the right to grant easements for “transportation and transmission systems” by “whatever means,” which arguably includes streets. The most contentious issue between parties was which party possessed rights to grant easements necessary to extend Coral Ridge Avenue over the railroad tracks and whether that party had been properly compensated. If Hawkeye possessed rights, the extension could constitute a taking requiring eminent domain proceedings and payment to Hawkeye. If Heartland possesses rights, eminent domain proceedings are not necessary because Coralville had compensated Heartland. The district court denied Hawkeye’s application for injunction because it found that Hawkeye failed to show that it had suffered irreparable harm and had no adequate remedy at law.

To obtain an injunction, the owner must prove irreparable injury and that no adequate legal remedy is available. “When property has been subject to condemnation, the landowner may permanently enjoin the eminent domain proceedings.” Also, “[i]n each case where a permanent injunction has enjoined condemnation under eminent domain, condemnation has occurred first.” The Iowa Court of Appeals held that this did not happen in this case. Coralville brought no condemnation proceedings, but Iowa law provides a remedy for a taking that has occurred without condemnation proceedings. Mandamus, or inverse condemnation, is available as a remedy when an agency has taken private land for public use without condemnation proceedings or employing eminent domain. So, the Iowa Court of Appeals ruled that the rights of the parties need not be decided at this time because the question before the court in this case was whether Hawkeye was entitled to an injunction. “A mandamus action is available to it, and as that action will result in the same outcome as a condemnation proceeding, it provides an adequate remedy at law.” Yet, “[b]ecause Hawkeye is unable to satisfy the necessities to obtain an injunction,” the district court’s decision was affirmed.

Abandonment of nonconforming use need not be established, but abandonment is evidence of discontinued use

by Gary Taylor

Moyer v. City of Des Moines Zoning Board of Adjustment
(Iowa Court of Appeals, May 29, 2013)

Don Moyer owns Hawkeye Motors, Inc. By 1997, Hawkeye Motors held title to multiple parcels of property on the corner of East 14th Street and Washington Avenue in Des Moines, including the lot located at 1433 East 14th Street (Lot 1433). Lot 1433 spans 20,500 square feet over two parcels and contains a 1652 square foot building originally built for auto repair.  From the time Hawkeye Motors purchased the property until 2006, the company either sold vehicles from Lot 1433 or leased the property to other tenants to sell or repair used cars. The lot was originally zoned as C-2, 2, which allowed used vehicle display. The city later rezoned Lot 1433 as C-1, a “neighborhood retail commercial district” that prohibits used vehicle display. On August 23, 2001, the city granted the property a legal nonconforming status for used auto sales and issued a certificate of occupancy to Hawkeye Motors to utilize the property as a “used automobile sales lot.”

Moyer held a used car dealer’s license issued to Hawkeye by the Iowa Department of Transportation that included Lot 1433, but allowed the license on the lot to lapse in 2004. In January 2006, Moyer leased Lot 1433 to Diaz Tinting, Inc. The city issued Leonardo Diaz a certificate of zoning compliance, which on January 10, 2006, authorized “building reuse from used cars to detailing and tinting.” The certificate provides: “No change of use may be made at this location unless a new Certificate of Occupancy is granted for such use and no change in this building or land may be made without first consulting the Zoning Enforcement Office.” In March 2007, Hawkeye Motors sold Lot 1433 on contract to Don and Gloria Moyer (his wife) personally, and issued the deed to the couple in 2011. During a property inspection by the city in January 2009, the enforcement officer discovered cars were being sold and repaired on Lot 1433. The city notified the Moyers six days later, and again in May 2009, that this parcel lost its legal nonconforming use status and consequently the auto sales and repair activities were unauthorized. The Moyers did not appeal either determination.  An April 24, 2010 inspection of Lot 1433 found continued illegal auto repair, and the city again notified the Moyers of “illegal business operations….”  When the Diaz Tinting lease ended one year later Moyer asked the city for a letter to the DOT stating that Lot 1433 was properly zoned for displaying and selling used cars. The city denied Moyer’s request. Moyer appealed the city’s denial, but the zoning board of adjustment upheld the city’s refusal.  Moyer appealed.

The Iowa Court of Appeals made the following statements regarding nonconforming uses on its way to upholding the decision of the zoning board of adjustment:

  • Sometimes intent to abandon may be inferred from a failure to apply for a license to carry on the nonconforming use.  [The same may be inferred] from amending the licensed use of the property.
  • Because [the Des Moines Ordinance] sets a time frame for determining when discontinuation of a property’s former use triggers the loss of its nonconforming designation, the city need not prove the owner’s intent to abandon. But intent to abandon presupposes discontinued use. Therefore, while proof of intent is not necessary to establish abandonment, an inference of the owner’s intent to abandon is relevant to nonuse.

The court concluded that because Moyer was without a dealer’s license to sell vehicles on the property, and his tenants had a certificate permitting the property’s repurpose to detailing and tinting, the board of adjustment could properly infer discontinued use as a used car display lot for at least six months [required under the ordinance] between 2006 and 2009.  Moyer attempted to distinguish between his 2001 “Certificate of Occupancy” and Diaz’s 2006 “Certificate of Zoning Compliance,” arguing that the latter could not revoke the former, and therefore could not be used as evidence of abandonment; however, the Des Moines zoning officer explained that the purpose of the Certificate of Zoning Compliance is “to document the change in use mostly for office use.” Both forms read substantially the same, including the requirement that “this certificate must be posted in a conspicuous place on the premises.” The court found that the board was entitled to rely on the 2006 certificate as circumstantial evidence the property no longer served as a used car lot.