Posted by: Patricia Salkin | October 11, 2018

IA Appeals Court Finds “Increase in Intensity” Provision did not Apply to the Remodel of Apartment Buildings

This post was authored by Matthew Loeser, Esq.

The Ames Zoning Board of Adjustment denied an application by Ames 2304, LLC for a permit to remodel the interior of its apartment building that would increase the number of bedrooms in the building, but not the number of dwelling units. The Board denied the application, and found the proposed remodel was prohibited under the zoning ordinance because the project would increase the intensity of a nonconforming use. The Board reasoned that the addition of bedrooms and associated addition of required off-street parking would intensify the nonconforming use. Ames 2304 petitioned the district court for a writ of certiorari. The district court annulled the writ, and Ames 2304 appealed.

On appeal, Ames 2304 contended that the provisions of paragraph (i) of the subject ordinance only applied to interior remodels that enlarged, expanded or extended the size of the nonconforming structure. As its remodel plan did not change the structure’s size, Ames 2304 claimed that it was error to apply the “increase in intensity” prohibition found in paragraph (i). The City of Ames argued Ames 2304 failed to preserve error on its argument that the “increase in intensity” prohibition did not apply to any property used for residential purposes under the definition of “intensity” set forth in the ordinance, as Ames 2304 never presented the argument to the district court. However, the court noted that a party need not cite a specific statute or rule in support of an issue in order to cite that statute or rule on appeal.

The district court, in addressing the argument made by Ames 2304, determined that the “increase in intensity” term set forth in section 29.307(2)(a)(i) applied equally to interior remodels that did not enlarge the nonconforming structure and those that enlarged the nonconforming use. The court determined that the purpose set forth in section 29.307(1)(a)(iii), which limited the expansion of nonconforming uses, structures, and lots that have the potential to adversely affect the area and community, aligned with a prohibition of increases in intensity in the context of nonconforming residential uses. Thus, the court agreed with the district court that remodeling of a nonconforming use, residential or not, was subject to the application of the section 29.307(2)(a) prohibition against increasing the intensity of the nonconforming use.

Ames 2304 next contended that the “increase in intensity” prohibition did not apply to its remodel based on the definition of “intensity” set forth in the ordinance. Here, apartment buildings were classified as residential use. Ames 2304 argued that since the “intensity” definition concerned only nonresidential purposes, the Board acted illegally in denying its request for a permit for interior remodel of its apartment building, which was a residential use. The court found that the ordinance tied “intensity” only to the number of dwelling units, and if the ordinance intended to tie the increase in intensity to other factors – such as increase in number of bedrooms, increase in number of occupants, or increase in number of required off-street parking spaces – it would have done so explicitly. Since the proposed remodel did not increase the number of dwelling units, the court found it did not violate the ordinance’s prohibition against an increase in intensity of the nonconforming use. Accordingly, the court reversed the judgment of the district court, and remanded the case for entry of an order sustaining the writ of certiorari.

Ames 2304, LLC v City of Ames Zoning Board of Adjustment, 2018 WL 4922998 (IA App. 10/10/2018)

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