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Moyer v. Zoning Board of Adjustment

Court of Appeal of Iowa

May 30, 2013

DONALD MOYER, Plaintiff-Appellant,
v.
ZONING BOARD OF ADJUSTMENT, CITY OF DES MOINES, IOWA, Defendant-Appellee.

         Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

         Donald Moyer appeals a district court order affirming a determination by the City of Des Moines zoning board of adjustment that he abandoned his property's nonconforming use to display used vehicles.

          Robert A. Nading II of Nading Law Firm, Ankeny, for appellant.

          Michael F. Kelley, Assistant City Attorney, Des Moines, for appellee.

          Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

          TABOR, J.

         Donald Moyer challenges the City of Des Moines's refusal to issue a letter to the Iowa Department of Transportation certifying a parcel of property he owns is zoned to permit the operation of a used car lot. The city's zoning board of adjustment determined that Moyer abandoned his nonconforming use designation by discontinuing his operation of a vehicle display lot on the property. Moyer argues insufficient evidence supports the board's finding.

         Because the board could reasonably infer—from Moyer's choice to allow his auto dealer's license to lapse and from his tenant's application to operate an auto window tinting business at that location—that Moyer stopped using the lot for used car sales, sufficient evidence supports the finding of abandonment.

         I. Background Facts and Proceedings

         Moyer owns Hawkeye Motors, Inc. By 1997, Hawkeye Motors held title to multiple parcels of property on the corner of East 14th Street and Washington Avenue in Des Moines, including the lot located at 1433 East 14th Street. Lot 1433 spans 20, 500 square feet over two parcels and contains a 1652 square foot building originally built for auto repair.

         From the time Hawkeye Motors purchased the property until 2006, the company either sold vehicles from Lot 1433 or leased the property to other tenants to sell or repair used cars. The lot was originally zoned as C-2, which allowed used vehicle display. The city later rezoned Lot 1433 as C-1, a "neighborhood retail commercial district" that prohibits used vehicle display. On August 23, 2001, the city granted the property a legal nonconforming status for used auto sales and issued a certificate of occupancy to Hawkeye Motors to utilize the property as a "used automobile sales lot."

         To obtain a used car dealer's license from the Iowa Department of Transportation (DOT), an applicant must provide a letter from the city showing the dealership's authorization to occupy the property. Moyer held a used car dealer's license for Hawkeye that included Lot 1433, but allowed the license on the lot to lapse in 2004. Moyer and his wife, Gloria, would eventually sell the northernmost property to his son, Paul Moyer, to operate his own car dealership, Extreme Motors, Inc.

         In January 2006, Moyer leased Lot 1433 to Diaz Tinting, Inc. The city issued Leonardo Diaz a certificate of zoning compliance, which on January 10, 2006, authorized "building reuse from used cars to detailing and tinting." The certificate provides: "No change of use may be made at this location unless a new Certificate of Occupancy is granted for such use and no change in this building or land may be made without first consulting the Zoning Enforcement Office." In March 2007, Hawkeye Motors sold Lot 1433 on contract to Don and Gloria Moyer, and issued the deed to the couple in 2011.

         During a property inspection by the city development zoning division on January 23, 2009, the enforcement officer discovered cars were being sold and repaired on Lot 1433. Six days later, the division first notified the Moyers that this parcel lost its legal nonconforming use status and consequently the auto sales and repair activities were unauthorized. On March 23, 2009, the division again notified the Moyers that they were violating ...


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