Posted by: Patricia Salkin | April 16, 2018

IA Supreme Court Finds No Impermissible Expansion of Nonconforming Mobile Home Park

This post was authored by Amy Lavine, Esq.

The Supreme Court of Iowa held in March that a mobile home park did not exceed its legal nonconforming use, nor was it necessary to enjoin the continued use of the mobile home park for the safety of life of property. The mobile home park retained essentially the same character that it had when it was established, the court concluded, and it was not impermissibly expanded merely because some of the mobile homes had been improved with porches and patios. And with respect to the city’s determination that the mobile home park constituted a safety hazard, the court found that the city’s evidence was generalized in nature and failed to establish that any safety problems on the actual property at issue. City of Des Moines v Ogden, 2018 WL 1357471 (IA 3/16/2018).

Ogden operated a nonconforming mobile home park in Des Moines. The property had been used as a tourist camp starting in 1941 and then transitioned from that use to become a mobile home park sometime between 1947 and 1955. Under the zoning ordinances in effect at the time, a portion of the property was located in a residential district, which did not permit mobile home uses, and to resolve this noncompliance the owner at the time applied for and was granted a certificate of use in 1955 that permitted the mobile home park to continue as a nonconforming use. Aerial photographs of the property were taken in 1963 and were also submitted into evidence to establish the extent of the pre-existing use; they showed 39 concrete pads with mobile homes, some of which had attached structures, while more recent photographs documented a more congested space with many more attachments and additions, such as porches, decks, and patios.

Aside from a violation of the prior owner in 2003, who had attempted to expand an adjacent auto dealership onto the property, the mobile home park received no zoning violations until 2014, when a zoning administrator informed Ogden that the property had numerous zoning defects. The alleged violations were determined under the zoning as it had existed in 1955 and they included violations relating to the requirements for setbacks, lot area, driveways, walkways, and additions, among other things. Based on these purported zoning problems, the city filed a petition in equity seeking an injunction ordering Ogden to cease use of the property as a mobile home park.

The district court agreed with the city and found that discontinuance of the mobile home park was necessary “for the safety of life or property.” Relying heavily on the photographic evidence, the district court concluded that “Now much of the open space visible in the 1963 photos is filled with the detritus of life: vehicles, outdoor recreational equipment, garbage pins, makeshift gardens, fencing, and crudely constructed additions to the mobile homes.” The district court also found insufficient evidence of fire prevention equipment and noted that the property had become so  “congested and cluttered” as to impede the ability of first responders to adequately respond to emergency situations. Alternatively, the district court also concluded that the use of the property had “intensified beyond acceptable limitations” and thus it had lost its status as a legal nonconforming use. Ogden appealed, and a divided court of appeals affirmed.

On appeal to the Iowa Supreme Court, the court first held that the evidence was insufficient to show that discontinuance of the mobile home park was necessary for the safety of life or property. “Remarkably,” the court noted, “the record is largely bereft of evidence demonstrating the existence of a significant safety issue.” Indeed, although the fire marshall had testified about the fire hazards created by mobile homes, his testimony was only general in nature and he acknowledged that Ogden’s property had never actually been cited for any fire code violations, nor had the fire department even inspected the individual mobile homes on the property. The court also emphasized that Ogden had no zoning violations prior to 2014, yet the city  didn’t even attempt to use other less severe enforcement mechanisms before seeking an injunction to shut down the mobile home park down entirely.

With respect to the nonconforming use issue, the court explained that it employed a burden-shifting analysis:

First, the zoning entity has the burden of proving the existence of a current zoning violation. If the zoning entity meets its burden, the burden shifts to the property owner “to establish the lawful and continued existence of the use” by a preponderance of the evidence. The burden then shifts back to the zoning entity to establish “a violation of the ordinance by exceeding the established nonconforming use” if the property owner establishes a lawful preexisting use.

Applying this test to the mobile home park, the court first had to determine whether the property use had changed so substantially as to have lost its status as a legal nonconforming use. This was an issue of first impression for the court, as it had not previously considered whether the addition of structures or the expansion of homes within a mobile home park amounts to an illegal expansion. The court’s determination depended primarily on whether the city could meet its burden in proving that the zoning violations exceeded the nonconformity established as of 1955, when the certificate of occupancy was granted. The city and the lower courts found evidence that the nonconforming use had been extended based on the fact that use of the mobile home park had intensified relative to the numbers and location of structures attached to the mobile homes, such as porches and patios. But the Iowa Supreme Court did not agree with this analysis, noting that “intensification 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.” As the court pointed out, the city failed to present any evidence demonstrating that the zoning violations had been expanded such that they were “substantially or entirely different from the original use,” and the city acknowledged that mobile home park as a whole had not changed in size or form, as the number and location of mobile homes essentially the same as in the photographs of the property from 1963. Moreover, the court found that additions to structures within the mobile home park had not substantially changed the nature and character of the property’s use as a mobile home park; “Rather, this steady increase in the additions to the mobile home structures and other objects found on the property represents a marginal change… that the law affords to property owners in their nonconforming use.”

Accordingly, the court concluded that the city failed to prove that the nature or character of the mobile home park was so substantially changed or intensified as to warrant the discontinuation of its legal nonconforming use as a mobile home park. The decision of the court of appeals was reversed.

City of Des Moines v Ogden, 2018 WL 1357471 (IA 3/16/2018).


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