City of Jewell Junction v. Cunningham, 88-362

• Decision Date: 19 April 1989
• Docket Number: No. 88-362,88-362
• Citation: 439 N.W.2d 183
• Parties: CITY OF JEWELL JUNCTION, Iowa, Appellee, v. Michael D. CUNNINGHAM and Linda Cunningham d/b/a East Lane Manor, Appellants.
• Court: Iowa Supreme Court

Page 183

439 N.W.2d 183

CITY OF JEWELL JUNCTION, Iowa, Appellee, v. Michael D. CUNNINGHAM and Linda Cunningham d/b/a East Lane Manor, Appellants.

No. 88-362.

Supreme Court of Iowa.

April 19, 1989.

Rehearing Denied May 12, 1989.

Carol A. Wendl of Neiman, Neiman, Stone & Spellman, P.C., Des Moines, for appellants.

Charles Deppe of Brekken, Deppe & Wynia, P.C., Jewell, for appellee.

Considered In banc.

LARSON, Justice.

Michael and Linda Cunningham are the owners of East Lane Manor, a residential care facility located in a residential district in Jewell Junction, Iowa. (Jewell Junction is commonly known as Jewell.) The district court enjoined the operation of East Lane Manor on the ground that it violated the city's zoning ordinance, and the Cunninghams appealed. We reverse and remand.

When the city's zoning ordinance was passed in 1971, East Lane Manor had already been in operation for approximately four years. Nevertheless, the ordinance impacted on East Lane in several respects: First, it designated the area where East Lane was located as R-2, or residential, with certain exceptions for "accessory uses," including nursing or convalescent homes and rest homes.

A nursing or convalescent home is defined by the ordinance as

[a] building or structure having accommodations and where care is provided for invalid, infirm, aged, convalescent, or physically disabled persons, not including insane or other mental cases, inebriate or contagious cases.

(Emphasis added.) A rest home is defined by the ordinance as

[a] home operated as a boarding house, and in which nursing, dietary and other personal services are furnished to convalescents, invalids and aged persons, but in which no persons suffering from a mental sickness, disease, disorder or ailment or from a contagious or communicable disease are kept, and in which no surgical or other primary treatments such as are customarily provided in sanitariums or hospitals are performed.

(Emphasis added.)

Second, the ordinance provided exceptions for nonconforming uses which existed at the time of the enactment of the ordinance. This "grandfathering" of existing uses lies at the heart of this case.

When the city sought an injunction based on alleged violations of the ordinance, Cunninghams responded that (1) the ordinance is unconstitutionally vague; (2) East Lane falls into one of the accessory uses as a "rest home" or a "nursing or convalescent" home; (3) the city is barred by laches and estoppel from enforcing the ordinance; and (4) Cunninghams' use of the property predated the ordinance, and the operation of the facility is therefore a legal nonconforming use. Because we hold for Cunninghams on the nonconforming use issue, it is unnecessary to resolve the other three issues.

The city argues that more than eight persons currently reside in East Lane Manor who suffer from mental disorders, and Cunninghams are therefore in violation of the ordinance. The number eight is significant because, under Iowa Code section 414.22(2)(b), a city zoning ordinance may not prohibit in a residential zone any facility with eight or fewer residents who are physically or mentally impaired.

Cunninghams' response is that, if more than eight of the present residents are suffering from mental conditions, this is nothing new, that eight or more such persons have resided in East Lane Manor at all times--from the beginning of its operation, through the time the ordinance was passed, and up to the time of trial. The present use is therefore only a continuing, nonconforming use and not subject to injunction. They also contend that, in the beginning of East Lane Manor's operation when it was caring largely for elderly people, "mental" problems were common, usually caused by senility, strokes, or Alzheimer's Disease.

The zoning ordinance provides for continued nonconforming uses in this language:

The lawful use of a building existing at the time of the enactment of this Ordinance may be continued even though such use may not conform with the regulations of this Ordinance for the district in which it is located. Any use in existence at the adoption hereof which was not an authorized "nonconforming use" under previous Zoning Ordinances, shall not be authorized to continue as a nonconforming use pursuant to this Ordinance, or amendments thereto.

Our resolution of the question of nonconforming use turns on how tightly the Cunninghams must be held to the original use of their property. The city produced evidence of a change in East Lane Manor away from the care of elderly persons toward the care of younger residents with records of mental illness and who are potentially more aggressive. In recent years, increased numbers of "releases" to East Lane Manor from mental hospitals have resulted in an influx of patients who, according to a psychiatrist, would continue to exhibit signs of mental illness.

One former employee, who started work for East Lane Manor in 1982 and left in 1985, testified that

when I first started, there was a lot of people that were elderly that just basically needed someone to help take care of them. And as--over the three years I went on, these elderly people were replaced with people that had a tendency to be violent and show behavior that I wasn't comfortable with.

....

Q. In terms of numbers, how many young people or younger people as you've described them, with a tendency to be violent or whatever, were there in March of 1982? A. I would say 4, 5, or 6 were in there. I didn't think that they had the violent tendency as what came there later.

Q. And when you left in March of '85, how many would you say had a--were younger and had more aggressive behavior? A. Basically all but one.

The city has the burden of proving a violation of the ordinance. City of Central City v. Knowlton, 265 N.W.2d 749, 753 (Iowa 1978). A party who asserts a nonconforming use has the burden to establish the lawful and continued existence of the use, and once the preexisting use has been established by a preponderance of the evidence, the burden is on the city to prove a violation of the ordinance by exceeding the established nonconforming use. 8 A. McQuillin, The Law of Municipal Corporations § 25.188(a), at 50 (1986) (hereinafter referred to as McQuillin); 101 C.J.S. Zoning & Land Planning § 154, at 475-77 (1979).

This court has not decided a case close to this on the facts, but it has been suggested that considerable latitude will be allowed a landowner in making changes in the original nonconforming use if the changes are not substantial and do not impact adversely on the neighborhood. In Central City, for example, we held that an original nonconforming use as a salvage and junk yard was preserved, even though the inventory of junk and salvaged cars had increased significantly since the ordinance was adopted. 265 N.W.2d at 754. In doing so, we cited Worthington v. Everson, 10 Ohio App.2d 125, 226 N.E.2d 570 (1967), which...