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

by Eric Christianson

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

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

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

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

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

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

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

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

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

Ogden appealed to the Iowa Supreme Court arguing several points:

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

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

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

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

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

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

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

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

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

 

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

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

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

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

by Eric Christianson

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

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

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

Current photographs depict the property as:

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

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

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

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

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

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

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

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

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

The Appeals Court found that:

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

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

The court states that to prove estoppel Ogden must demonstrate:

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

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

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

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

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

Nonconforming use provision preventing re-leasing of mobile home park lot when tenant leaves found unconstitutional

by Hannah Dankbar

State ex rel. Sunset Estate Properties, LLC v. Village of Lodi
Ohio Supreme Court, March 10, 2015

Sunset Properties, L.L.C. and Meadowview Village, Inc. both own property in the village of Lodi where they operate mobile-home parks. Both of the properties are in R-2 zones, which do not allow for mobile-home parks. The mobile-home parks were established before establishing the zone as an R-2 zone, so they are considered legal nonconforming uses under R.C. 713.15.

In 1987 the village of Lodi passed Lodi Zoning Code 1280.05(a), which reads;

Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evidence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further use shall be in conformity with the provisions of this Zoning Code. In the case of nonconforming mobile homes, their absence or removal from the lot shall constitute discontinuance from the time of absence or removal.

This ordinance is specific towards each individual mobile home; meaning that when a tenant leaves a mobile home and the lot stands vacant for more than six months, Lodi will not reconnect water and electrical service for the new tenant. This results in the mobile home park owners not being able to rent these lots and essentially losing their property. The property owners claim that this ordinance is unconstitutional on its face.

The property owners claim that this ordinance violates the 14th Amendment of the United States Constitution and Section 16 Article 1 of the Ohio Constitution. these clauses provide that no person shall be deprived of life, liberty or property without due process of law. In Akron v Chapman the Ohio Supreme Court held, “Zoning ordinances contemplate the gradual elimination of nonconforming uses within a zoned area, and, where an ordinance accomplishes such a result without depriving a property owner of a vested property right, it is generally held to be constitutional.”  The state and local governments have wide reaching powers to regulate land use, but that power is not unlimited.

The last sentence of the ordinance deprives the owner of the ability to use the property that was considered legal before the adoption of this ordinance. Even though the mobile home tenant is the one who makes the decision to leave, the park owner is the one who loses their property right to use their entire property in a way that was legal before the adoption of this ordinance. This deprivation trumps Lodi’s goals of promoting development and protecting property values. All other parts of this ordinance are constitutional, it is only the last part that cannot be applied.

The dissenting opinion argues that there are non-constitutional issues in this case that can be addressed to resolve this case without making constitutional claims. The property owners claimed that the ordinance conflicted with state law. The majority found the ordinance ambiguous as to whether Lodi would classify the individual lots as nonconforming uses. The dissent argued that this issue should have been addressed and decided before the constitutional issue.

 

 

Non-conforming use protections may apply to entire mobile home park, not individual home sites

by Gary Taylor

Heck v. City of Pacific and City of Pacific Board of Zoning Adjustment
Missouri Court of Appeals, Eastern District, October 28, 2014

The Hecks have operated Pacific Mobile Home Manor on the same tract of land since 1983.  Within Pacific Manor is a mobile home pad addressed as 303 South Second Street, which is positioned approximately 14 feet from the pad to its south, and the same distance from the pad to its north.  When renters moved out with their mobile home in the late 2000s, the Hecks attempted to install a new mobile home of the same size on the vacant pad around two years later.  The city of Pacific, however, informed the Hecks that the new mobile home could not be placed upon the pat unless they obtained a variance from the city code provision – adopted in 1996 – that requires 20-foot spacing between mobile homes or other structures.  Mr. Heck testified before the Board of Zoning Appeals (BZA) that he was under the impression that he already had a variance for the pad because the pad and mobile home on the pad were permitted when he bought Pacific Manor in 1983.  The ZBA voted to deny the variance, and the Hecks appealed.

The Hecks argued that Pacific Manor existed in its present configuration, including the spacing of mobile home pads, prior to the adoption of the 20-foot spacing requirement in 1996; in other words, that their legal nonconforming use applies to the mobile home park as a whole and not on a “per pad” basis.  Mr.  Heck testified “I mean I can’t really move all the trailers out and get rid of them and totally reorganize that all.  So I’m just trying to maintain the property and keep it as nice as I can.”

The city, on the other hand, argued that even if the present configuration and spacing of pads in Pacific Manor was a lawful nonconforming use, it has since been extinguished by “structural alteration” – moving the old mobile home off the pad.  Furthermore, the city argued that the nonconforming use was abandoned because the pad sat vacant without a mobile home for two years.

The Court of Appeals concluded that the BZA did not analyze the case as a nonconforming use case; rather, the BZA was simply concerned with whether the Hecks’ application met the standard for a variance.  “A nonconforming use differs from a variance.”  The Court of Appeals remanded the case to the ZBA to hear evidence on the issue of whether the Hecks are entitled to continue a lawful nonconforming use, noting that “if in fact the Hecks have continued their lawful nonconforming use of Pacific Manor, the spacing requirements [of the city code] do not apply and no variance is needed.”

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