City of Des Moines v. Imperial Properties, Inc., No. 5-088/03-0762 (IA 4/28/2005)
| Decision Date | 28 April 2005 |
| Docket Number | No. 5-088/03-0762,5-088/03-0762 |
| Parties | CITY OF DES MOINES, Plaintiff-Appellant, v. IMPERIAL PROPERTIES, INC., Defendant-Appellee. |
| Court | Iowa Supreme Court |
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
The City of Des Moines appeals from a district court ruling denying injunctive relief in a zoning enforcement action against Imperial Properties, Inc. AFFIRMED.
David L. Phipps, Assistant City Attorney, Des Moines, for appellant.
Robert A. Nading II of Nading Law Firm, Ankeny, for appellee.
Heard by Huitink, P.J., and Miller and Eisenhauer, JJ.
The City of Des Moines appeals from a district court ruling denying injunctive relief in a zoning enforcement action against Imperial Properties, Inc.
Imperial owns a commercial building and adjacent parking lot located at 5803 Hickman Road in Des Moines. The property has been zoned C1 commercial since 1965. Since acquiring the property, Imperial has leased it to several restaurant tenants, a conforming use under the 1965 zoning ordinance. Subsequent to adoption of the 1965 zoning ordinance, the City enacted additional site planning and parking lot regulations. Because Imperial's continuing use of its parking lot for a restaurant was "grandfathered" in under the zoning ordinance, Imperial was not required to bring its parking lot into compliance with subsequently enacted site plan and parking lot regulations.
In 1998 Imperial's restaurant tenant vacated the property. The property remained vacant until the fall of 2001 when it was leased to another restaurant tenant. On February 11, 2002, the City issued a certificate of occupancy authorizing the use of the property for a restaurant. The certificate included the following special conditions:
Special Conditions: 1.) Temporary until 6-1-02 pending landscaping and concrete removal per site plan requirements. DZ/RLK.
According to the City, Imperial's use of the parking lot was no longer a legal nonconforming use because that use was discontinued for more than one year after the 1998 vacancy. Imperial's subsequent use of its parking lot was therefore subject to the City's site plan and parking lot regulations.
On July 8, 2002, a zoning enforcement official issued a "notice of violation" citing Imperial's failure to bring its property into compliance with the City's applicable site plan and parking lot requirements. Although the City claimed a copy of this notice was sent to Imperial's registered agent, Imperial denied its receipt.
On August 29, 2002, the City sued Imperial, alleging Imperial's continued violations of the City's applicable zoning ordinances. The City requested the following relief:
WHEREFORE, the Plaintiff prays that the Court order the Defendant to bring the land into compliance with the Municipal Code of the City of Des Moines, Iowa, and for other relief deemed equitable by the Court under the circumstances.
FURTHER, the Plaintiff prays that the Defendant be ordered to cause the illegal business activity to cease and the structure be vacated until such time as there has been issued a valid Certificate of Occupancy.
FURTHER, the Plaintiff prays that the Court enjoin the Defendants from their continued nonconforming use of the real estate in violation of the Des Moines, Iowa, Municipal Code, Chapter 134.
FURTHER, the Plaintiff prays that all costs incurred by the Plaintiff in enforcement of the Municipal Code and all costs of this action be assessed to the Defendant as a personal judgment and be entered against the real estate as an assessment, with interest.
Imperial denied any violations and affirmatively alleged that it did not discontinue its legal nonconforming use because the property was leased to another restaurant tenant.
The fighting issue at trial was whether Imperial discontinued the use of its parking lot for a restaurant for the requisite time to lose its legal nonconforming use status. The City presented evidence supporting its earlier recited discontinuation theory, including the fact that one or more abandoned or disabled vehicles were found in the parking lot while the property was vacant. The City also argued that the zoning commission correctly interpreted and applied the pertinent zoning ordinances in making its enforcement decisions.
The trial court disagreed. The court's findings of fact state:
After reviewing the ordinances, the Court accepts defendant's argument that there has been no change in the underlying use of the property and that defendant is shielded from the subsequent, more restrictive ordinance amendments because of the "grandfather" provision in the ordinance. Nor does the Court find that the owner was somehow bound by the conduct of the tenant when the tenant agreed to submit a site plan.
The Court expressly does not decide the issue of whether defendant may be estopped from asserting the "grandfather" provision. Certain facts suggest that the defendant should be estopped. But the City did not plead that theory nor did the City file a trial brief asserting the theory. Under these circumstances, and in fairness to the defendant, the Court will leave that issue to be decided, if at all, in the future.
On appeal, the City raises the following issues for review:
I.IMPERIAL PROPERTIES VIOLATED THE CITY'S ZONING ORDINANCE.
II. Standard of Review.
The pleadings, relief sought, and nature of the case ordinarily determine whether an action is legal or equitable. Ernst v. Johnson County, 522 N.W.2d 599, 602 (Iowa 1994). However, we will review a case on appeal in the same manner in which it was tried. Id. Where there is uncertainty about the nature of the case, our litmus test to make the determination is whether the trial court ruled on evidentiary objections. Id. Because the district court ruled on evidentiary objections in this case, we find the case was tried at law. Accordingly, our review is for correction of errors of law. Iowa R. App. P. 6.4.
The parties agree that Imperial's use of its parking lot was formerly a legal nonconforming use to which the subsequently adopted site plan and parking lot regulations at issue did not apply. As noted earlier, the City contends Imperial's use of its property is no longer legal because it was discontinued after 1998. We disagree.
Des Moines Municipal Code section 134-1352(b) provides:
If a lawful use of a structure or of a structure and land in combination exists at the effective date of the ordinance adopting or amending this chapter that would not be allowed in the district under the terms of this chapter,...
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