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City of Des Moines v. Ogden

Court of Appeals of Iowa

June 7, 2017

CITY OF DES MOINES, IOWA, Plaintiff-Appellee,
v.
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.

          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 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- 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:

[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 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 ...


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