City of Des Moines v. Ogden

• Decision Date: 16 March 2018
• Docket Number: No. 16-1080,16-1080
• Citation: 909 N.W.2d 417
• Parties: CITY OF DES MOINES, Iowa, Appellee, v. Mark OGDEN, Appellant.
• Court: Iowa Supreme Court

909 N.W.2d 417

CITY OF DES MOINES, Iowa, Appellee,

v.Mark OGDEN, Appellant.

No. 16-1080

Supreme Court of Iowa.

Filed March 16, 2018

James E. Nervig of Brick Gentry P.C., West Des Moines, for appellant.

Luke DeSmet, Assistant City Attorney, Des Moines, for appellee.

Laura Rae Jontz and Jessica J. Taylor (until withdrawal) of Iowa Legal Aid, Des Moines, for amici curiae.

ZAGER, Justice.

A property owner appealed the district court order enjoining him from continuing the nonconforming use of his property as a mobile home park. The district court found the nonconforming use of the property exceeded its authorized nonconforming use, and it was necessary to cease operation of the nonconforming use for the safety of life or property. The court of appeals affirmed the district court ruling. On our de novo review, we conclude that the City of Des Moines failed to prove that the property owner had exceeded its legal nonconforming use or that it was necessary to enjoin the property owner from continued operation of the mobile home park for the safety of life or property. We vacate the decision of the court of appeals and reverse the judgment of the district court enjoining Ogden from continuing his nonconforming use of the property as a mobile home park.

I. Background Facts and Proceedings.

Mark Ogden owns the real estate located at 3140 Indianola Avenue in Des Moines, Iowa. Ogden operates a mobile home park at that location known as Oak Hill Mobile Home Park (Oak Hill). The zoning of the property is partially C-2 General Retail Highway-Oriented Commercial District and partially R1-60 One Family Low Density Residential District. While the full history of the property is unclear, there is evidence demonstrating the property was originally used as a heating and furnace repair business around 1938. In approximately 1941, the property transitioned into Oak Hill Tourist Camp, which provided tourists with small bedroom suites and outhouses to accommodate their traveling needs. There are no photographs of the property prior to 1947 when the property was still operating as a tourist camp, and there is little evidence documenting the changes in the property between 1947 and 1955. Between 1947 and 1955, the property became Oak Hill Mobile Home Park.

In 1953, the City of Des Moines (City) enacted new zoning ordinances. According to the zoning designations then in effect, the trailer park was partially in the C-2 Commercial District and partially in the R-2 Residence District. In 1955, the owner of Oak Hill at the time applied for and was granted a certificate of occupancy from the City that allowed for the operation of the mobile home park as a nonconforming use. The 1955 certificate of occupancy indicates that the mobile home park was a nonconforming use as to the R-2 zoning. The certificate of occupancy does not declare that the mobile home park is otherwise out of compliance with the zoning ordinances conjointly affecting it.

The first aerial photograph on record of the property in use as a mobile home park was taken in 1963. This photograph reveals 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. There are a number of automobiles parked on or surrounding the U-shaped access road that circles through Oak Hill and separates it from the neighboring homes. This is the only photographic evidence in the record showing the conditions of Oak Hill in 1963. More recent photographs of the property reveal that Oak Hill has become more congested over the years as some residents have added porches, decks, and more living space to their mobile homes.

The record reveals that the City has taken no action against Oak Hill from the time the certificate of occupancy was issued in 1955 until 2014. However, in 2003 the City discovered that the previous owner of Oak Hill was partially utilizing some portions of the mobile home park as an extension of his adjacent auto dealership. Consequently, the City issued a letter to the owner advising him that the 1955 certificate of occupancy allowed him to operate the land as a mobile home park, but he was not authorized to use the land as an extension of his auto dealership. The owner stopped operating the auto dealership on the property, and the City took no further action regarding the use of the property as a mobile home park at that time. The City did not issue another warning or citation of any kind about the use of the property as a mobile home park until 2014.

On August 4, 2014, SuAnn Donovan, the neighborhood inspection zoning administrator, provided Ogden with a letter informing him that Oak Hill "has numerous violations of municipal zoning codes that were in place at the time the land was converted to a mobile home park and must be brought into compliance with those codes." Donovan explained, "There were two controlling ordinances relating to mobile home parks in effect at that time": (1) "Chapter 39 that specifically regulated the operations of mobile home parks" and (2) "Chapter 2A which regulated zoning issues." The City "reviewed the current status of the park as it relates to the two ordinances to determine violations that currently exist on the property."

Upon examination, Donovan informed Ogden that the City had found the following violations of Chapter 2A of "the Municipal Code of the City of Des Moines as it was in effect in 1955": (1) failure to provide a thirty-five foot setback from Park Avenue; (2) failure to provide a twelve-foot setback from Indianola Road; (3) failure to provide a forty-foot setback along the lot line running north from Park Avenue; (4) failure to provide a fifteen-foot setback along the lot line running west from Indianola Road; and (5) failure to supply 1200 square feet of lot area per mobile home. Additionally, the letter noted the following "violations of Chapter 39, the Municipal Code as it was in effect in 1955": (6) failure to maintain a twenty-foot unobstructed driveway that was accessible to the public and properly maintained, marked, lighted, and equipped with an all-weather surface; (7) failure to maintain twelve feet of clearance between trailers; (8) failure to provide a two-foot walkway between the trailers to the public street; and (9) failure to provide fire extinguishers that were in good working order for every twenty-five trailer spaces located not further than 200 feet from each trailer space. Finally, Donovan noted,

In 1962, pursuant to Chapter 57, as re-codified in Chapter 39 of the Municipal Code no additions were to be constructed on trailers other tha[n] a porch or entry way with less than 11' clearance from other additions or trailers. Many of the additions are in violation of this provision of the applicable ordinance.

The letter concluded by warning Ogden that the City could take legal action to abate the aforementioned violations if he failed "to bring the property into compliance or enter into a compliance plan within ten days" of receiving the notice letter.

Ogden did nothing to establish a compliance plan or bring the property into compliance.

In October 2014, the City filed its amended petition in equity. The City requested that the court issue an injunction ordering Ogden to cease use of the property as a mobile home park in violation of the Des Moines Municipal Code. Trial was conducted before the district court on March 26, 2016. At trial, Jonathon Lund, the Des Moines Fire Marshal, testified on behalf of the City. When asked about the fire dangers that mobile home parks pose, Lund testified, "The construction of a mobile home is inherently a little bit more dangerous in the sense that they typically use smaller dimensional lumber." He explained that smaller dimensional lumber "can lead to rapid progression of fire." Lund stated, "[I]f you have properties in close proximity to each other, it creates an exposure hazard for us which leads to more fires."

Lund also testified about the importance of fire access roads. He explained that the City requires properties to maintain a twenty-foot-wide fire access road, and he agreed that a ten-foot-wide fire access road would make it more difficult for firefighters to do their jobs effectively. Despite his testimony about the fire hazards of mobile home parks in general, Lund clarified that the fire department had not inspected the mobile home trailers at Oak Hill because they are considered single-family dwellings. Lund admitted, "I'm not aware of any outstanding violations [at Oak Hill]." This is the sum of the evidence presented regarding the mobile home park being a risk to the safety of life and property.

Donovan testified about the history of the property and the nature of the zoning violations at issue. She stated her belief that "the basic issue is the location of the mobile homes are too close together to meet either zoning requirements in '55 or today," but conceded that "the City can't impose a larger setback on a legal nonconforming" use. When asked how the City decides what zoning violations to enforce, Donovan stated, "We are mostly complaint based. When we get a complaint, we go out and investigate and determine if there's a violation and proceed with enforcement." When asked if complaints were filed regarding Oak Hill, Donovan responded, "Citizens have filed complaints. The city council actually directed the action to review this, and eventually we're going to do all of them in the city and make sure they're in zoning compliance." Donovan did not expand on the number of complaints filed, the nature of the complaints filed or who filed them, what the complaints concerned, or any additional information about complaints allegedly made about Oak Hill. Ogden also testified about the history of the property and his prior interactions with City employees regarding the alleged zoning violations.¹

In its ruling on the nonconforming use issues, the district court...