City of Des Moines, Iowa v. Mark Ogden

IN THE COURT OF APPEALS OF IOWA

No. 16-1080
Filed June 7, 2017

CITY OF DES MOINES, IOWA,
Plaintiff-Appellee,

vs.

MARK OGDEN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.

Mark Ogden, a property owner, appeals from the district court’s findings

that use of his property as a mobile home park is a danger to the safety of life

and property, the park has exceeded its previous nonconforming use, and the

court’s injunction and order to cease use of the property as a mobile home park.

Because the record supports the findings of the district court and because Ogden

has made no effort to mitigate the violations documented by the City, we affirm.

AFFIRMED.

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

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

Jessica J. Taylor and Laura Jontz, Iowa Legal Aid, for amici curiae.

Heard by Danilson, C.J., and Potterfield and Bower, JJ.
2

POTTERFIELD, Judge.

Mark Ogden appeals the district court’s order enjoining the continued

nonconforming use of Ogden’s property as a mobile home park. He claims the

district court erred in determining the land use expanded beyond its previously

authorized nonconforming use and revocation of the use is necessary for the

safety of life or property. He also claims the district court erred in determining

equitable estoppel does not bar the injunction. Finally, he claims the district court

abused its discretion in excluding Gloria Lang’s testimony. We affirm.

I. Background Facts and Proceedings.

Ogden owns a tract of land situated on the south side of Des Moines

where he operates a mobile home park (the “property”). Ogden purchased the

property in 2013, but he has been involved in the maintenance and upkeep of the

park since his uncle purchased the property around 1975, and he started actively

managing the park in 1999 due to his uncle’s declining health. The property sits

on the northwest corner of Indianola Avenue and Park Avenue and contains

approximately thirty-nine mobile home pads that are leased to park residents.

Approximately half of the pads and homes are situated on the outside perimeter

of the property. A narrow, u-shaped access road circles the inside of the

property and separates the interior homes from the perimeter homes.

The record does not reveal the entire historical use of the property.

Testimony and photographs depict the property was used as a tourist camp in

1947. Sometime shortly thereafter, the use of the property changed to a mobile

home park. In 1955, the City of Des Moines issued a certificate of occupancy

allowing the operation of a trailer court on the property contrary to the 1953 Des
3

Moines zoning ordinances, which prohibited the use of mobile home parks. A

1963 aerial photograph of the property depicts permanent homes that are in

close proximity to each other with additional structures attached to the homes.

Nothing else in the record describes the condition of the property in 1963.

More recent pictures of the property depict 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 record does not indicate the city took any action against the property

after the certificate of occupancy was issued in 1955 until 2003. In 2003, Richard

Clark—then owner of the park—was allegedly operating portions of the property

as an auto dealership. The City of Des Moines issued a letter informing the

owner the 1955 certificate of occupancy legitimized the use of the land as a

mobile home park but did not authorize the park’s use as an auto dealership.

The city did not issue any additional warnings or citations regarding the mobile

home use until 2014.

On August 5, 2014, SuAnn Donovan, neighborhood inspection zoning

administrator for the city, notified Ogden by letter explaining the “park has

numerous violations of municipal zoning codes that were in place at the time the

land was converted to a mobile home park.” The city alleged the following

violations of the 1955 Des Moines Municipal Code: (1) failure to provide a thirty-
4

five-foot set-back from Park Avenue; (2) failure to provide a twelve-foot set-back

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 set-back

along the lot line running west from Indianola Road; (5) failure to supply 1,200

square feet of lot area per mobile home (6) failure to maintain a twenty-foot

unobstructed driveway accessible to the public street, properly maintained with

an all-weather surface, marked, and lighted; (7) failure to maintain twelve-foot

clearance between trailers; (8) failure to provide a two-foot walk way between

trailers to the public street; (9) failure to provide fire extinguishers in good

working order for every twenty-five trailer spaces located not further than two

hundred feet from each trailer space; and (10) additions to the trailers other than

porches or entry ways were prohibited from reducing the clearance between

trailers or other additions below eleven feet. The letter further warned the

violations pose a threat to the health and safety of the occupants and the

violations must be brought into compliance with the applicable code to prevent

further legal action. Ogden did not take any action to remedy the violations.

In October 2014, the city filed a petition seeking an injunction against the

property owner for the above listed violations. At trial, the Des Moines Fire

Marshall, Jonathan Lund, testified for the city. He stated the “construction of a

mobile home is inherently a little bit more dangerous in the sense that they

typically use smaller dimensional lumber,” which “can lead to rapid progression of

fire.” He also testified that the close proximity of the mobile homes creates an

exposure hazard, “which leads to more fires.” Lund testified the ten-foot access

road would make it difficult for firefighters to respond to a fire. He explained:
5

[W]e require 20-foot-wide fire access roads. That facilitates us
positioning a fire apparatus in front of the building and still being
able to maneuver another fire apparatus around that engine or
truck. . . . Anytime in fighting a fire access is paramount. We have
to be able to get there, deploy hose lines within a reasonable
distance of the structure to do our job effectively.

Ogden testified about the history and layout of the property and various

interactions he had with city employees regarding ordinance violations.1 Gloria

Lang, park resident, also testified, contingent on the court’s ruling on the city’s

objections. Lang stated she did not interact with the city regarding her mobile

home and that she would have difficulty relocating should the property cease use

as a mobile home park. The city objected to the testimony on the grounds

Ogden did not disclose Lang as a witness until the morning of trial and the

testimony is irrelevant to the zoning issue at hand.

The court issued its ruling on the evidentiary issues presented at trial in its

final order. Regarding Lang’s testimony, the court held, “[B]ecause Ms. Lang

was not disclosed as a witness until the morning of the trial and her testimony

was irrelevant to zoning issues, the objection is sustained and her testimony is

excluded.” Regarding the use requirements, the court held:

[T]he 1955 Certificate of Occupancy validly established a vested
right in a nonconforming use as a trailer court because: (1) the
Certificate acknowledges the use as at least partially
nonconforming; and (2) the occupancy permit statute required an
application and proof that the nonconforming use did not violate the
required City ordinances; and (3) the City would not have issued
the certificate had compliance in some capacity not been present.
Thus, beginning in 1955, Ogden had a vested right to operate Oak
Hill as a mobile home park subject to: (1) the language of section
1
The city objected to this testimony, as Ogden failed during discovery to disclose his
previous interactions with the city. In its order, the court held, “[B]ecause the City
inquired of any statements made by City employees during discovery and Ogden did not
identify any of these statements at that time, the objection is sustained and the testimony
is excluded. This evidentiary ruling is not part of Ogden’s appeal.”
6

2A-49, which allows “a discontinuance . . . necessary for the safety
of life or property;” and (2) the boundaries of the nature and
character of the legal nonconforming use as it existed in 1955
(which is best represented by the 1963 aerial photographs).
Second, the Court holds that a discontinuance of the
nonconforming use under the 1955 Certificate of Occupancy is
necessary for the safety of life or property. The 1963 aerial
photographs demonstrate that Oak Hill was in violation of many of
the contemporaneous zoning ordinances, but Oak Hill of 1963 is far
less congested than Oak Hill of 2015. As detailed in the Court’s
Findings of Fact, conditions at Oak Hill deteriorated markedly
between 1963 and 2006 (when the City began photographing Oak
Hill at ground level). Now, much of the open space visible in the
1963 photos is filled with the detritus of life: vehicles, outdoor
recreational equipment, garbage bins, makeshift gardens, fencing,
and crudely constructed additions to the mobile homes. The U-
shaped road that runs through Oak Hill is in poor repair, absent
markings or well-defined borders. There is no evidence of
adequate fire prevention or fighting equipment. The City stated in
its original letter regarding this action that the zoning regulations in
1955 were aimed at preserving the health and safety of Oak Hill
and its occupants. The occupancy permit statute states that
discontinuance of the permit is allowed if the safety of life or
property is threatened. Oak Hill is so congested and cluttered as to
impede the ability of first responders to adequately address
common urban dangers, such as fires and situations requiring
police involvement.

The court also held that Ogden’s “use of [the] property has intensified beyond

acceptable limitations” because the conditions “pose a real threat in the event of

an emergency.”

Ogden did not file a rule 1.904(2) motion to enlarge or amend the district

court findings. Ogden appealed the district court’s ruling. Our supreme court

granted permission for the filing of amicus curiae brief by eight residents of Oak

Hill Mobile Home Park.2

2
Amici curiae argue any injunction against the property’s use as a mobile home park will
lead to its residents’ homelessness and the evidence in the record was insufficient to
establish safety and health concerns to its residents and the surrounding community.
We address the insufficiency of evidence argument in the discussion of Ogden’s appeal.
7

II. Standard of Review.

We base our standard of review of an appeal on the manner in which it

was tried at the district court. Ernst v. Johnson Cty., 522 N.W.2d 599, 602 (Iowa

1994). “Where there is uncertainty about the nature of a case, a litmus test we

use in making this determination is whether the trial court ruled on evidentiary

objections.” Id. Although the underlying action seeks an injunction, the district

court made multiple evidentiary rulings. Thus, we review for correction of errors

at law.

We review discovery sanctions and evidentiary rulings for an abuse of

discretion. Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 385 (Iowa

2012) (explaining standard of review for discovery sanctions); Williams v.

Hedican, 561 N.W.2d 817, 822 (Iowa 1997) (explaining standard of review for

evidentiary rulings).

III. Discussion.

Ogden argues the district court erred by concluding (1) a discontinuance

of the nonconforming use is necessary for the safety of life or property and (2)

any changes to the property are unlawful expansions of the existing

nonconforming use.3 Ogden also argues equitable estoppel prevents the city

3
We also note that during oral arguments, appellant urged us to consider City of Monroe
v. Nicol in support of his argument that the district court’s order should be reversed. 16-
1155, 2017 WL 1735875 (Iowa Ct. App. May 3, 2017). In Nicol, the city assumed title to
an abandoned property pursuant to Iowa Code section 657A.10A(5) (2016). Id. at *1.
The appellant property-owner specifically challenged the constitutionality of the statute
authorizing the city to assume title, arguing it was an unconstitutional taking contrary to
the Iowa and United States Constitutions. Id. A panel of our court affirmed the district
court’s order transferring title to the city. Id. at 2. We are uncertain how this case
supports the appellant’s argument. Unlike the facts presented in Nicol, here Ogden
retains title to his property, and no action was taken by the city under section
657A.10A(5). Nor did Ogden challenge the constitutionality of the regulation used by the
8

from obtaining an injunction. The city argues Ogden is not entitled to continuing

nonconforming use occupancy because the property now has deteriorated so

that it is in violation of multiple ordinances since the certificate of occupancy was

issued. The city also argues the nonconforming use can be revoked based on

health and safety concerns.

A. Error Preservation—Unconstitutional Taking.

The city argues Ogden failed to preserve error on the issue of an

unconstitutional taking because it was not presented to the district court. Ogden

argues the issue was raised in his proposed ruling submitted to the district court.

Ogden failed to develop his argument regarding a takings claim at the district

level.4 While Ogden did mention “takings” in his proposed rulings as what

appears to be background material for land-use law, the trial court did not rule on

any takings claims. Ogden also failed to file a rule 1.904(2) motion to enlarge the

trial court’s findings in order to address the takings issue. To the extent Ogden

raises an unconstitutional takings claim in his appellate brief, he has not

preserved error. See Homan v. Branstad, 887 N.W.2d 153, 161 (Iowa 2016)

(“[W]hen a party has presented an issue, claim, or legal theory and the district

city to revoke Ogden’s nonconforming use. The analysis and legal issues in Nicol are
unrelated to the issue presented here: whether Ogden exceeded the nonconforming use
of his property.
4
Ogden appears to argue the actions of the city amounted to a regulatory taking. The
Supreme Court explained land-use regulations “do not effect a taking requiring
compensation if it substantially advances a legitimate state interest.” Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1023–24 (1992); see also Iowa Coal Min. Co. v.
Monroe Cty., 555 N.W.2d 418, 431 (Iowa 1996) (discussing Lucas). The Court
recognized two exceptions: “When the regulation (1) involves a permanent physical
invasion of property or (2) denies the owner all economically beneficial or productive use
of the land, the State must pay just compensation.” Lucas, 505 U.S. at 1028–29. We
note Ogden failed to develop these rules—or any argument supporting them—at the
district court level.
9

court has failed to rule on it, a rule 1.904(2) motion is proper means by which to

preserve error and request a ruling from the district court.”).

B. Nonconforming Use.

Generally, “[a] nonconforming use of property 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., 746 N.W.2d

56, 60 (Iowa 2008). While a nonconforming use may continue until legally

abandoned, “the nonconforming use cannot be enlarged or extended.” Id. The

purpose of a prohibition against expansion of a nonconforming use is to protect

against the growth of “a pre-existing aggravation” that “survives as a matter of

grace.”5 Stan Moore Motors, Inc. v. Polk Cty. Bd. of Adjustment, 209 N.W .2d 50,

53 (Iowa 1973). The Des Moines Municipal Code reflects this principle. It states,

“Nothing in this division shall prevent the continuance of a nonconforming use as

authorized, unless a discontinuance is necessary for the safety of life or

5
Other jurisdictions generally disfavor the “establishment, continuance, and expansion”
of nonconforming uses because of the conflict “with the objectives of comprehensive
zoning.” See Patricia E. Salkin, American Zoning Law § 12:7 (5th ed. 2017) (citing
Billups v. City of Birmingham, 367 So. 2d 518 (Ala. Crim. App. 1978) (“The spirit and
intention of the zoning laws is to restrict any increase of any nonconforming use.”);
Hartley v. City of Colorado Springs, 764 P.2d 1216 (Colo. 1988) (“Nonconforming uses
are disfavored because they reduce the effectiveness of zoning ordinances, depress
property values, and contribute to the growth of urban blight. Because of their
undesirable effect on the community, nonconforming uses should be eliminated as
speedily as possible. Accordingly, zoning provisions allowing nonconforming uses to
continue should be strictly construed, and zoning provisions restricting nonconforming
uses should be liberally construed.”); Cracker Barrel Old Country Store, Inc. v. Town of
Plainfield ex rel. Plainfield Plan Com'n, 848 N.E.2d 285 (Ind. Ct. App. 2006) (“[T]he
policy of zoning ordinances is to secure the gradual or eventual elimination of
nonconforming uses and to restrict or diminish, rather than increase, such uses. Such
policy embodied in a zoning ordinance is important to the trial court in determining the
extent and character of changes that will not destroy the character of a nonconforming
use.”)).
10

property.” Des Moines, Iowa, Zoning Ordinance, div. 5 § 134-155(a) (2014)

(emphasis added).6

Still, an intensification of nonconforming use does not automatically

revoke the owner’s ability to continue the nonconforming use, and “[l]andowners

are given some latitude . . . and may change the original nonconforming use ‘if

the changes are not substantial and do not impact adversely on the

neighborhood.’” Okoboji, 746 N.W.2d at 60 (alteration in original) (quoting

Perkins v. Madison Cty., 613 N.W.2d 264, 270 (Iowa 2000)). For example, the

nonconforming use of a care facility for disabled persons did not cease when the

patient’s disabilities changed “from impaired mental functions through aging

processes to those caused by mental illness,” which violated another ordinance

under the applicable zoning regulation prohibiting property use for “persons

suffering from a mental sickness, disease, disorder or ailment.” City of Jewell

Junction v. Cunningham, 439 N.W.2d 183, 184–85, 187 (Iowa 1989). Similarly, a

restaurant operating under a legal nonconforming use did not lose its

nonconforming status when it decided to sell alcohol on the premises. See

Okoboji, 746 N.W.2d at 63–64.

On the other hand, expanding a marina that sold beer for off-premises

consumption to a bar that hosts activities such as karaoke, live music, hog

roasting, and on-site parties unlawfully expanded the nature and character of the

nonconforming use. See City of Okoboji, Iowa v. Okoboji Barz, Inc., 717 N.W.2d

6
The relevant Des Moines code section at the time the certificate of occupancy was
issued also provides for an exception to continuing nonconforming use when
“discontinuance is necessary for the safety of life or property.” Des Moines, Iowa,
Zoning Ordinance, part XX § 2A-49 (1953).
11

310, 316 (Iowa 2006). Adverse effects on the neighborhood can also exceed the

scope of nonconforming use, such as an impact on public services or increased

traffic. See Jewell Junction, 439 N.W.2d at 187. Our supreme court has not

addressed whether the addition of structures or expansion of homes in a mobile

home park constitutes an unlawful expansion of a non-conforming use.

Other jurisdictions, however, determined replacing existing mobile homes

with larger mobile homes in violation of setback requirements is an unlawful

expansion of the property’s nonconforming use. See Kosciusko Cty. Bd. of

Zoning App. v. Smith, 724 N.E.2d 279, 281 (Ind. Ct. App. 2000) (holding zoning

ordinance that prohibits expansion of nonconforming uses requires owner to

conform to zoning ordinance or request a variance); Wiltzius v. Zoning Bd. of

App. of Town of New Milford, 940 A.2d 892, 910 (Conn. App. Ct. 2008). These

jurisdictions relied on the municipal code language similar to the language

expressed in the Des Moines municipal code to support the city’s intent to curtail

nonconforming uses.

In order to resolve a zoning violation when a nonconforming use is

asserted by the property owner, our courts engage in the following burden-

shifting analysis: (1) the city has the burden of proving a violation of the

ordinance; (2) Ogden “has the burden [to] establish the lawful and continued

existence of the use”; and (3) “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.” Jewell, 439

N.W.2d at 186. The parties do not dispute that Ogden is in violation of multiple

zoning ordinances. Nor do the parties dispute the 1955 certificate of occupancy
12

establishes lawful and continued existence of use. Thus, the remaining issue is

whether the City has shown Ogden exceeded the nonconforming use established

in 1955.

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. After reviewing the record, we hold

the district court did not err in finding 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. First, the record depicts the layout on the property

creates a dangerous fire hazard. Lund testified the positioning of the structures

within the setback limitations “creates an exposure hazard for us, which leads to

more fires.” Lund explained the fire hazard is especially present in mobile homes

because they are “inherently a little bit more dangerous in the sense that they

typically use smaller dimensional lumber. . . . [I]t can lead to [a] rapid

progression of fire.” Lund also testified the crowded conditions and the narrow,

ten-foot access road would inhibit the ability of the fire department to respond

effectively:

[W]e require 20-foot-wide fire access roads. That facilitates us
positioning a fire apparatus in front of the building and still being
able to maneuver another fire apparatus around that engine or
truck. . . . Anytime in fighting a fire access is paramount. We have
to be able to get there, deploy hose lines within a reasonable
distance of the structure to do our job effectively.

Although Lund’s testimony did not explicitly opine the park is dangerous to life

and property, he clearly stated the congestion in the park would make it difficult
13

to contain a fire or even to position the firefighting equipment effectively. The

congested conditions, large trash items, altered structures, and parked cars all

pose a threat to the fire department’s ability to protect life and property. Law

enforcement and other public officials would face similar obstacles in providing

public services to the property. The district court did not err in enjoining the

nonconforming use to protect the “safety of life or property,” as authorized by the

applicable certificate of occupancy code. The absence of previous notices of

violations from the City or the fire department does not justify the risk of tragedy

to families living in the park in the event of an emergency. Ogden’s failure to

respond to the ten violations listed in the 2014 notice leaves no choice in the face

of the potential for loss of life or property. Although our record does not expand

on complaints by neighboring landowners, the zoning administrator testified,

“[C]itizens have filed complaints.”

For similar reasons, 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. See Jewell Junction, 439 N.W.2d at 187.

C. Evidentiary Issues.

Ogden next argues the court abused its discretion in declaring the

testimony of Gloria Lang was inadmissible. He claims the district court

erroneously based its determination on relevancy. The record, however, reflects

an additional reason for the district court’s evidentiary ruling. The district court

excluded Lang’s testimony as a discovery sanction because the witness was not
14

disclosed until the morning of trial and her testimony was irrelevant to zoning

issues. The decision of the trial court to exclude witness testimony as a

discovery sanction is discretionary and will not be reversed unless there has

been an abuse of discretion. Sullivan v. Chicago & N.W. Transp. Co., 326

N.W.2d 320, 324 (Iowa 1982) (holding district court’s sanction of excluding a

witness’s testimony for party’s failure to disclose a witness was appropriate and

did not amount to an abuse of discretion). Failure to disclose a witness is a valid

justification for a discovery sanction. Id. The district court did not abuse its

discretion in excluding Lang’s testimony because Ogden failed to disclose the

witness until the day of trial.

D. Equitable Estoppel.

Ogden next argues equitable estoppel bars the city from enjoining the use

of the mobile home park. “The doctrine of equitable estoppel is 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.”

McKee v. Isle of Capri Casinos, Inc., 864 N.W.2d 518, 531 (Iowa 2015). Our

supreme court has “consistently held equitable estoppel will not lie against a

government agency except in exceptional circumstances.” Fennelly v. A-1 Mach.

& Tool Co., 728 N.W.2d 163, 180 (Iowa 2006) (quoting ABC Disposal Sys., Inc.

v. Dep't of Nat. Res., 681 N.W.2d 596, 606 (Iowa 2004)). “The ‘exceptional

circumstances’ under which equitable estoppel will lie against the government

include instances when, ‘in addition to the traditional elements of estoppel, the

party raising the estoppel proves affirmative misconduct or wrongful conduct by
15

the government or a government agent.’” Fennely, 728 N.W.2d at 180 (quoting

28 Am. Jur. 2d Estoppel and Waiver § 140, at 559 (2000) (holding a failure by an

assessor to communicate with a property owner in order to obtain information

regarding a tax assessment is not misconduct by the government)).

Ogden claims the city’s 2003 letter confirming the property’s

nonconforming-use status and the city’s failure to inform him of zoning violations

amount to a representation that justifies estoppel. In order 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.” City of Marshalltown v.

Reyerson, 535 N.W.2d 135, 137 (Iowa Ct. App. 1995) (citing Incorporated City of

Denison v. Clabaugh, 306 N.W.2d 748, 754 (Iowa 1981)). Ogden’s claim fails

under the first element; the record does not support the city’s failure to enforce

the zoning ordinance amounts to a false representation or concealment of

material fact. As indicated by testimony, the city does not notify property owners

every time a zoning infraction occurs. Rather, the city operates on a complaint

basis to trigger enforcement. The district court did not err in holding Ogden’s

equitable estoppel defense fails.

IV. Conclusion.

The district court properly granted the city’s request for an injunction

against Ogden’s use of the property as a mobile home park. The city may

revoke nonconforming use status for the “safety of life or property.” Ogden also

exceeded the valid nonconforming use by expanding the structures and reducing
16

the open space of the mobile home park in a manner that violated multiple city

ordinances. Furthermore, the district court properly excluded Lang’s testimony

because Ogden failed to disclose the witness to the city until the morning of trial.

Ogden also failed to prove misconduct by the city in order to succeed on his

equitable estoppel claim.

AFFIRMED.

Bower, J., concurs; Danilson, C.J., partially dissents.
17

DANILSON, Chief Judge. (concurring in part and dissenting in part)

I concur with the majority’s discussion on all issues except the issue

concerning nonconforming use. In respect to the issue of an unconstitutional

taking, I would only add that Ogden also did not plead a counterclaim or defense

on the basis of a taking. I respectfully dissent in regard to the second issue.

I disagree with the majority affirmation of the district court conclusions that

the mobile home park’s current state exceeds the legal nonconforming use as it

existed in 1955 and poses a threat to the safety of people or property at the

mobile home park. I conclude the City has failed to prove both grounds.

The general principles related to nonconforming use of property were

recited in City of Okoboji v. Okoboji Barz Inc., 746 N.W.2d 56, 60 (Iowa 2008):

A nonconforming use of property 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. Perkins v.
Madison Cty., 613 N.W.2d 264, 270 (Iowa 2000). The prior use of
the property essentially establishes a vested right to continue the
use after the ordinance takes effect. See Quality Refrigerated
Servs. v. City of Spencer, 586 N.W.2d 202, 206 (Iowa 1998). The
nonconforming use is permitted to continue until legally abandoned.
Iowa Coal Mining Co. v. Monroe Cty., 555 N.W.2d 418, 430 (Iowa
1996). However, the nonconforming use cannot be enlarged or
extended. Stan Moore Motors, Inc. v. Polk Cty. Bd. of Adjustment,
209 N.W.2d 50, 52 (Iowa 1973). This limiting principle is carved
into the city ordinance at issue in this case. The ordinance
expresses an intent “to permit . . . nonconformities to continue until
they are removed, but not to encourage their survival,” and
provides “that nonconformities shall not be enlarged upon,
expanded or extended, nor be used as grounds for adding other
structures or uses prohibited elsewhere in the same district.”
Okoboji Zoning Ordinance art. IV, § 3. Nevertheless, the body of
law governing nonconforming uses of property recognizes
“[l]andowners are given some latitude . . . and may change the
original nonconforming use ‘if the changes are not substantial and
do not impact adversely on the neighborhood.’” Perkins, 613
18

N.W.2d at 270 (citing City of Jewell Junction v. Cunningham, 439
N.W.2d 183, 186 (Iowa 1989)).

In 1955 the City of Des Moines gave its approval to the mobile home

park’s nonconforming use. As observed by the district court, the exact date

when the mobile home park came into existence is unknown. The district court

concluded it was sometime between 1947 and 1955. The City has no evidence

of the condition of the park or the number of mobile homes in the park in 1955

when the certificate of nonconforming use was granted. The best evidence the

City could muster was how the mobile home park existed in 1963. If the mobile

home park had been expanded to, say, twice its size, perhaps reliance on its’

status in 1963 might serve to meet the City’s burden. But here, where the City

admits there is no change in size and its use remains as a mobile home park,

there is a failure of proof that the nonconforming use has been exceeded.

The district court noted the burden of proof lies first with the City to prove

a violation of a zoning ordinance. See Jewell Junction, 439 N.W.2d at 186.

Upon proof of a violation, the burden shifts to the defendant to establish “the

lawful and continued existence of the use.” Id. If the defendant is successful, the

burden shifts back to the City to show the nonconforming use was exceeded.

See id.

The district court concluded the City met its burden by showing violations

of the zoning ordinance existing in 1955. And the majority has outlined ten such

violations urged by the City. The City also contended the mobile home park was

in violation of current zoning ordinances. The City conceded the 1955 certificate

of nonconforming use satisfied the legality of the mobile home park’s
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nonconforming use.7 I agree, but it might be better to say the use of the property

does not comply with the zoning restrictions—because the noncompliance does

not rise to the level of a violation as its use was legally authorized by the

nonconforming-use certificate. City of Okoboji, 746 N.W.2d at 60.

The City thus had the burden to establish the “use” was exceeded.

Ultimately, the district court concluded “the nature and character of the mobile

home park have substantially changed.” In reaching this conclusion, the district

court relied upon the photos from 1963 compared to today’s photo to find there

was less open space due to congestion “filled with the detritus of life: vehicles,

outdoor recreational equipment, garbage bins, makeshift gardens, fencing, and

crudely constructed additions to the mobile homes.” The district court also stated

the road in the mobile home park was in disrepair, and police and fire would have

difficulties responding to emergencies. According to the district court, such

circumstances have caused an increase in danger and an intensification of the

use beyond acceptable limitations. Notwithstanding the fact that at least thirty

mobile homes are occupied in the mobile home park, the district court enjoined

its operation and ordered the issuance of writs of removal within 180 days.

In respect to the alleged danger, apparently there have been no

complaints levied by neighbors, no prior violations initiated by the City (except

one unrelated to dangerous conditions), and the fire department has not initiated

7
Notwithstanding its concession, the City argues the certificate of nonconforming use
was not authorized and should not be given any validity, citing Crow v. Board of
Adjustment of Iowa City, 288 N.W.2d 145 (Iowa 1939). However, because there is no
evidence of exactly when the mobile home park came into existence and whether it was
grandfathered in prior to the implementation of the zoning ordinances, and also the lack
of any evidence the certificate was not properly authorized, there is no evidence to
conclude the certificate is invalid.
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any action because of any violations. The fire chief only testified that new

developments are required to have a twenty-foot-wide access and that the space

between mobile homes affects fire safety. The fire chief did not testify the mobile

home park was dangerous.

The increase in vehicles from 1963 to today probably is not unlike any

mobile home park. The mobile home park needs a thorough clean up and some

parking restrictions but the City did not afford Ogden that option. I would

conclude there has not been any substantial change in use or significant

intensification of the use. Changes from the original nonconforming use have

been marginal and the nature and character of the use is substantially

unchanged. See Jewell Junction, 439 N.W.2d at 183 (“[I]ntensification of a

nonconforming use is permissible so long as the nature and character of the use

is unchanged and substantially the same facilities are used.” (citation omitted)).

I would also conclude the City failed to show its need to enjoin the

operation of the mobile home under these circumstances. Before granting an

injunction to enforce a zoning ordinance the City 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.” City of Okoboji v. Parks, 830 N.W.2d 300, 309 (Iowa

2013) (citations omitted). Without any prior actions taken by the City against

Ogden for prior violations, the record is markedly bare of evidence to show a

substantial injury or damage will occur absent an injunction or that no adequate

remedy at law is available.

I would reverse.