City of Des Moines, Iowa v. Mark Ogden
16-1080
| Iowa Ct. App. | Jun 7, 2017Background
- Mark Ogden owns and operates a ~39-pad mobile home park in Des Moines that was issued a 1955 certificate of occupancy recognizing its nonconforming use as a trailer court.
- Photographs and testimony showed the park became increasingly congested over decades: additions to homes, porches, vehicles, large discarded items, narrow interior U-shaped roadways, and limited clearance between units.
- In August 2014 the city notified Ogden of multiple alleged violations of contemporaneous setback, spacing, driveway, and fire-safety requirements; Ogden did not remediate.
- The City sued in October 2014 for an injunction to discontinue the mobile-home use under the applicable ordinance permitting discontinuance when necessary for the safety of life or property.
- At trial the Des Moines Fire Marshal testified crowding and a ten-foot access road would impede firefighting and increase fire risk; Ogden’s late-noticed resident witness (Gloria Lang) was excluded for nondisclosure.
- The district court found (1) the 1955 certificate established a vested nonconforming use, (2) park conditions had intensified beyond the 1955/1963 character and posed safety risks, and (3) the city could revoke the nonconforming use; this court affirmed.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (Ogden) | Held |
|---|---|---|---|
| Whether discontinuance of nonconforming use is necessary for safety of life or property | Park’s congestion, additions, debris, and narrow access create fire and emergency-response hazards justifying discontinuance | Park remains the same use and size as 1955; conditions do not show substantial change or imminent danger | Affirmed: court found intensified conditions create real safety risks and justify discontinuance |
| Whether current conditions exceed the 1955 nonconforming use (unlawful expansion) | Additions, reduced open space, and narrowed roads changed nature/character and unlawfully intensified the use | Changes are marginal and within permissible latitude for nonconforming uses; no substantial expansion | Affirmed: changes intensified use beyond acceptable limitations and violated ordinances |
| Exclusion of Gloria Lang’s testimony for nondisclosure | N/A — city objected to late disclosure and irrelevance | Ogden: exclusion was abuse of discretion; testimony relevant to residents’ hardship | Affirmed: exclusion upheld as discretionary discovery sanction given nondisclosure and relevancy concerns |
| Equitable estoppel defense | N/A — city: no false representation; enforcement is complaint-driven, not a representation of immunity | Ogden: past city communications and long nonenforcement estop city from revocation | Rejected: no evidence of city misconduct or a false representation to support estoppel against a government agency |
| Preservation of takings claim on appeal | N/A — city: Ogden didn’t present a takings claim below or seek additional district-court findings | Ogden: argues regulatory taking | Not preserved: appellate takings claim forfeited for failure to develop below or seek further findings |
Key Cases Cited
- City of Okoboji v. Okoboji Barz, Inc., 746 N.W.2d 56 (Iowa 2008) (defines nonconforming-use principles and limits on expansion)
- City of Jewell Junction v. Cunningham, 439 N.W.2d 183 (Iowa 1989) (burden-shifting when nonconforming use asserted; intensification analysis)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (regulatory takings framework and exceptions requiring compensation)
- Stan Moore Motors, Inc. v. Polk Cty. Bd. of Adjustment, 209 N.W.2d 50 (Iowa 1973) (nonconforming uses may not be enlarged or extended)
- Fennelly v. A-1 Mach. & Tool Co., 728 N.W.2d 163 (Iowa 2006) (equitable estoppel against government requires exceptional circumstances/misconduct)
- Sullivan v. Chicago & N.W. Transp. Co., 326 N.W.2d 320 (Iowa 1982) (upholding exclusion of undisclosed witness as discovery sanction)