City Of Okoboji, Iowa Vs. Okoboji Barz, Inc., D/b/a Okoboji Boats And Leo Parks, Jr.

IN THE SUPREME COURT OF IOWA
No. 65 / 04-1554
Filed May 26, 2006
CITY OF OKOBOJI, IOWA,
Appellant,
vs.
OKOBOJI BARZ, INC., d/b/a
OKOBOJI BOATS and LEO PARKS, JR.,
Appellees.
Appeal from the Iowa District Court for Dickinson County, John P.
Duffy, Judge.
The city appeals an adverse judgment denying its request for an
injunction to enjoin a bar from operating within the city limits. REVERSED
AND CASE REMANDED WITH DIRECTIONS.
Michael J. Chozen of Chozen & Saunders, Spirit Lake, for appellant.
Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C.,
Des Moines, and Phil C. Redenbaugh of Phil C. Redenbaugh, P.C., Storm
Lake, for appellees.
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WIGGINS, Justice.
In this appeal, we must decide whether the proposed operation of a
bar on lakefront property constitutes an unlawful expansion of a
nonconforming use under a city’s zoning ordinance and a violation of the
special use permits granted by the board of adjustment. The district court
determined the proposed use of the property for a bar did not violate the
city zoning ordinance or the special use permits. Because we disagree with
the district court’s determination, we reverse the judgment of the district
court and remand the case for the court to enter a permanent injunction
enjoining the owner and his corporation from using the property as a bar.
I. Background Facts and Proceedings.
The property in question in this case is located on the lakeshore of
Smith’s Bay on West Lake Okoboji. A marina has been located on the
property since the 1890’s. Until the mid-1970’s, the property was operated
as two separate marinas with different owners. One property was known as
the Cove and the other as Okoboji Boats. The surrounding neighborhood is
primarily residential, with some commercial activity.
In 1972, the City of Okoboji (City) enacted a zoning ordinance. Under
the ordinance, the marinas were zoned lakeshore residential. Lakeshore
residential permits single-family homes and prohibits commercial uses.
Okoboji Zoning Ordinance art. VII, § 2(A)(1) (1995) (originally codified in
1972). Accordingly, the Cove and Okoboji Boats became nonconforming
uses. The minutes from the Okoboji planning and zoning commission
meeting where the commission discussed the ordinance reflect the
commission’s
suggest[ion] that these [nonconforming uses] be given a
perpetual special permit to continue their respective
businesses regardless of any type of disaster that may destroy
the entire operation [contrary to a provision in the ordinance
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prohibiting rebuilding if such a use is damaged more than fifty
percent of its replacement value. The commission noted it]
should be stipulated, however, that the permit is limited to the
specific operation or business for which it was originally
intended.
In 1973, the owner of Okoboji Boats filed an application for a special
use permit stating:
We request that the provision of Ordinance No. 63 stating that
if a non-conforming business is destroyed beyond 50% of
replaceable value, the business may not be rebuilt, be waived,
as pertains to the business known as “Okoboji Boats.” The
business being a sales, service, and storage facility for boats.
The Okoboji board of adjustment granted the permit as requested.
Around the same time, the owner of the Cove filed an application for a
special use permit. The application stated:
I request that the provisions of Art. IV, Sec. 4, par. B be waived
so that a non-conforming use of a building destroyed or
damaged more than 50% of its then replacement value could
be restored; also I request that the provisions of Art. IV, Sect. 4
which states that no building or land devoted to a use not
permitted by this ordinance in a residential district in which
such building or land is located, except when required by law,
shall be enlarged, extended, constructed, reconstructed,
substituted or structurally altered, unless the use thereof is
changed to a use permitted in the district in which such
building, structure or premises is located, be also waived. The
Cove is such a business involved in sales, rental, service and
storage of boats, snowmobiles and related items.
The board granted the permit specifying in part
[t]hat all objections be overruled and the permit application be
approved subject to the following restrictions: That the
proposed building be utilized for only boat sales, service,
storage facilities, and related various business, and further
provided that the proposed building be no higher than specified
in the attached site plan, which is 15' above street grade,
adequate parking as defined in Ord. 63 and 10' side yards.
In 1975, the two properties began operating as a single marina known
as Okoboji Boats. The hours of operation were typically 8 a.m. to 5 p.m.,
with the gas dock sometimes operating until 8 p.m. Around this time, the
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City issued a building permit to the marina for some expansion and
remodeling. In addition, the marina eventually began selling beer intended
for consumption off the premises as well as soda, snack foods, and
microwavable sandwiches. The marina also expanded its inventory of
boating equipment, apparel, and accessories.
In January 2001, Leo Parks, Jr. purchased Okoboji Boats. Parks
leased a portion of the marina during that summer to an individual who
operated a business that included the sale of carryout broasted chicken.
The broasted chicken operation brought a myriad of complaints from the
neighbors. With the support of numerous property owners in the
neighborhood, the City filed a petition for declaratory judgment and
injunctive relief, claiming the operation of the chicken business was
contrary to the zoning ordinance. The court denied the City’s request for a
temporary injunction. The City dismissed the case. The chicken business
eventually closed.
In September 2003, a corporation controlled by Parks, Okoboji Barz,
Inc., leased the marina property. In October, Parks’ corporation applied for
an on-premises class C commercial liquor license for the marina. This
license allows the licensee to sell liquors, wine, and beer by the drink for
consumption on the premises. Iowa Code § 123.30(3)(c) (2003). Parks’
proposed operation of a bar contemplates serving alcohol inside and outside
of both buildings on the premises, year-round and every day of the week.
Parks contends a bar “fills the piece of the puzzle to make a modern day
marina complete.”
Parks intends to operate a bar at this marina under the same
business model he is running at a different marina he owns. At the other
marina, Parks operates a tiki bar known as the Barefoot Bar. The revenue
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from the Barefoot Bar contributes approximately one and a half percent of
the marina’s gross sales. The Barefoot Bar is not intended to be a late night
bar, but rather a “lakeside sunny day bar.” It is usually open to 10:30 p.m.,
but on some occasions it remains open until midnight. The bar’s activities
include karaoke, live music, hog roasting, and monthly full moon parties.
The City denied Okoboji Barz, Inc.’s application for a liquor license on
the grounds the “operation of a tavern/restaurant on premises represents a
substantial change in the nature and character of the use permitted under
the special use permit.”
In November, the City filed a petition against Okoboji Barz, Inc.,
d/b/a Okoboji Boats, and Parks for declaratory judgment and injunctive
relief. The petition was filed in light of Okoboji Barz, Inc.’s appeal to the
alcoholic beverages division of the Iowa department of commerce from the
City’s denial of its application for a liquor license. The City sought a
temporary and permanent injunction against the operation of a tavern or
bar on the marina property as such operation constituted an unlawful
expansion of a nonconforming use, as well as rulings that such operation
violated conditions of a special use permit, allowing the board of adjustment
to revoke the permit. The district court issued a ruling denying the City’s
requested relief. The City appeals.
II. Issues.
One issue raised on appeal by the City is whether the district court
erred when it ruled that the operation of a bar on the marina property does
not violate the City’s zoning ordinance and the special use permits issued
by the board of adjustment. The City also asks us to decide if the board of
adjustment may revoke one of the special use permits.
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III. Scope of Review.
The district court tried the City’s petition for declaratory judgment
and injunctive relief as an equity action. Therefore, our review is de novo.
Perkins v. Madison County Livestock & Fair Ass’n, 613 N.W.2d 264,
267 (Iowa 2000). Under this review, we give weight to the fact findings of
the district court, especially as to the credibility of witnesses, but we are not
bound by them. Id.
IV. Analysis.
A. Did the district court err when it ruled that the operation of a bar on
the Okoboji Boats property does not violate the City’s zoning
ordinance and the special use permits issued by the board of
adjustment?
To decide this appeal, we must consider the interpretation and
application of the Okoboji zoning ordinance. “In interpreting ordinances it
is appropriate to apply the general rules of construction for statutes.”
Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d 541, 543 (Iowa
1996). “We resort to ‘the rules of statutory construction only when the
terms of [a] statute are ambiguous.’ ” State v. Wiederien, 709 N.W.2d 538,
541 (Iowa 2006) (alteration in original). Ambiguity exists if reasonable
persons can disagree on the meaning of a statute. Id. An ambiguity may
arise from the meaning of particular words or from the general scope and
meaning of a statute in its totality. Id.
We have stated:
The goal of statutory construction is to determine legislative
intent. We determine legislative intent from the words chosen
by the legislature, not what it should or might have said.
Absent a statutory definition or an established meaning in the
law, words in the statute are given their ordinary and common
meaning by considering the context within which they are
used. Under the guise of construction, an interpreting body
may not extend, enlarge or otherwise change the meaning of a
statute.
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Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)
(citations omitted). Zoning restrictions are construed strictly to favor the
free use of property and will not be extended by implication or
interpretation. Ernst v. Johnson County, 522 N.W.2d 599, 602 (Iowa 1994).
The assessment of an ordinance requires consideration in its entirety so
that the ordinance may be given its natural and intended meaning. Kordick
Plumbing & Heating Co. v. Sarcone, 190 N.W.2d 115, 117 (Iowa 1971).
When the City enacted its zoning ordinance in 1972, it zoned the
marina properties in the L-R Lakeshore Residential District. This district
only allows single-family dwellings on each lot or building site. Okoboji
Zoning Ordinance art. VII, § 2(A)(1). After the City enacted its zoning
ordinance, the marina properties thus became nonconforming uses. See
Perkins, 613 N.W.2d at 270 (stating a nonconforming use is one lawfully in
existence when a zoning restriction became effective and has been permitted
to continue to exist). As to nonconforming uses, the City’s zoning ordinance
provides:
Within the districts established by this Ordinance or by
amendments which may later be adopted, there exist lots,
structures, buildings and uses which were lawful before this
ordinance was effective or amended, but which would be
prohibited, regulated or restricted under the provisions of this
Ordinance or future amendment, the intent of this Ordinance
is to permit these nonconformities to continue until they are
removed, but not to encourage their survival. It is further the
intent of this Ordinance that nonconformities shall not be
enlarged upon, expanded or extended, nor be used as grounds
for adding other structures or uses prohibited elsewhere in the
same district.
Okoboji Zoning Ordinance art. IV, § 3.
“A party who asserts a nonconforming use has the
burden to establish the lawful and continued existence of the
use, and once the preexisting use has been established by a
preponderance of the evidence, the burden is on the city to
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prove a violation of the ordinance by exceeding the established
nonconforming use.”
City of Jewell Junction v. Cunningham, 439 N.W.2d 183, 186 (Iowa 1989). In
evaluating whether changes in such nonconforming uses are permissible,
we have stated:
A property owner may lose the protection of a
nonconforming-use status when the property owner exceeds
the established nonconforming use. Thus, “[e]nlargements or
extensions of non-conforming uses are not allowed.” This
court has explained the rationale underlying this principle as
follows: “The prohibition against expanding or enlarging a non-
conforming use defends against the growth of a pre-existing
aggravation. That pre-existing aggravation, the non-
conforming use, survives as a matter of grace. The public is
not required to expand upon that grace to its increasing
aggravation.” Landowners are given some latitude, however,
and may change the original nonconforming use “if the
changes are not substantial and do not impact adversely on
the neighborhood.”
Perkins, 613 N.W.2d at 270 (alteration in original) (citations omitted).
Reasonable and normal accessory uses are usually permitted in connection
with nonconforming uses. 8A Eugene McQuillin, The Law of Municipal
Corporations § 25.209 (3d ed. rev. 2003). The use made of the land at the
time the ordinance became effective is the standard we use to determine
whether there is an unlawful enlargement of a nonconforming use. City of
Cent. City v. Knowlton, 265 N.W.2d 749, 754 (Iowa 1978).
We must also consider the uses allowed under the special use permits
to determine whether Parks’ proposed bar is an allowable use. A special
use permit “allows property to be put to a purpose which the zoning
ordinance conditionally allows.” Buchholz v. Bd. of Adjustment of Bremer
County, 199 N.W.2d 73, 75 (Iowa 1972); see also Iowa Code § 414.7
(allowing the board of adjustment to make special exceptions to
ordinances).
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Prior to the issuance of the special use permits, the owners of the two
properties operated each property as a separate marina. The marinas did
not sell food or alcoholic beverages. Although the special use permit issued
to the old Okoboji Boats marina waived the provision of the zoning
ordinance which would not allow reconstruction if the business was
destroyed beyond fifty percent of its replacement value, the permit did not
expand the existing nonconforming use. The special use permit only
allowed the owner to operate the business on the property as a sales,
service, and storage facility for boats.
The special use permit issued for the old Cove marina not only waived
the reconstruction restriction, but it also allowed the owner to build on the
property with certain restrictions. The Cove’s special use permit did not
expand the property’s existing nonconforming use. By its terms, the special
use permit stated “the proposed building be utilized for only boat sales,
service, storage facilities, and related various business.” The use of the
word “business” in the permit refers to activity directed towards the sale,
service, and storage of boats. See Webster’s Third New International
Dictionary 302 (unabr. ed. 2002) (defining “business” as “activity directed
toward some end”). This definition is consistent with the then owner’s
application for the special use permit that stated “[t]he Cove is such a
business involved in sales, rental, service and storage of boats, snowmobiles
and related items.”
Thus, the special use permits issued by the board of adjustment in
1973 did not expand the uses allowed by the property owners under the
zoning ordinance’s nonconforming use provisions.
It is uncontested that the prior marina owners expanded the
operation of the marina to include the sale of beer intended for off-premises
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consumption, soda, snack foods, microwavable sandwiches, and boating
equipment and accessories. These items, however, are related to the sales
and service of boats because boat owners use these items when they are on
their boats. The prior owners did not use the property as a bar for on-
premises consumption of alcoholic beverages. The prior owners did not
have live entertainment, karaoke, hog roasts, or full moon parties. The
prior owners only operated the marina from 8 a.m. to 5 p.m., with a gas
pump attendant on duty until 8 p.m.
Parks acknowledges the proposed bar at Okoboji Boats would be
similar in operation to the bar at his other marina. This means the Okoboji
Boats marina would be open longer hours than under the prior owners and
host activities such as karaoke, live music, hog roasting, and monthly full
moon parties. Such activities change the nature and character of the
nonconforming use. Accordingly, we cannot consider a full-fledged bar to
be merely an accessory use to the operation of a marina. Instead, the
operation of a bar is a change in use that is substantially different from the
use the marina properties had at the time of the adoption of the zoning
ordinance. Thus, the proposed bar constitutes an unlawful expansion of a
prior nonconforming use. See Perkins, 613 N.W.2d at 270-71 (finding an
enlarged racetrack and the figure-eight racing for which it was used was
substantially different from the previous rodeo-type arena and the events
held in it, in view of the new racetrack’s size, character, form, and different
neighborhood effect, causing it “to lose the protection of the nonconforming
use provisions of the ordinance”); Waukesha County v. Pewaukee Marina,
Inc., 522 N.W.2d 536, 540 & n.3 (Wis. Ct. App. 1994) (finding a marina
owner’s addition of a retail store and place for lounging and entertainment
as well as sale of boats, boat lifts, and piers resulted in a change of the prior
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nonconforming use consisting of a dry-docking and wet-docking facility with
fuel and bait services; the court rejected the notion of “once a marina,
always a marina, even though marina business itself is transformed”).
Therefore, the district court should have granted the City’s request for
a permanent injunction enjoining Okoboji Barz, Inc., d/b/a Okoboji Boats,
and Parks from operating the proposed bar on the premises.
B. May the board of adjustment revoke one of the special use permits?
The City’s zoning ordinance provides:
The special permit issued may include time limits, and other
conditions or safeguards deemed necessary or appropriate by
the Board [of Adjustment]. Violations of such conditions and
safeguards shall be deemed a violation of this Ordinance and
punishable under the provisions of this Ordinance. In
addition, the special permit in connection with such violation
shall be subject to revocation by the Board.
Okoboji Zoning Ordinance art. XI, § 6(5). The legislature granted the board
of adjustment jurisdiction over special use permits, not the city council.
Iowa Code §§ 414.7, 414.12; see also Holland v. City Council of Decorah, 662
N.W.2d 681, 688 (Iowa 2003) (stating “[t]o the extent the council has
claimed authority to grant the fill permit in this case, it has [unlawfully]
diminished the jurisdiction of the board of adjustment”).
As of the date of trial, the board of adjustment had made no
determination whether to revoke the special use permit granted to the old
Cove property. Until the board takes action under the City’s zoning
ordinance, there is no justiciable controversy. See Citizens for Responsible
Choices v. City of Shenandoah, 686 N.W.2d 470, 474 (Iowa 2004) (finding for
purposes of a declaratory judgment there was no justiciable controversy
prior to a final decision of other governing bodies involved in the case).
Therefore, we will not address this issue on appeal.
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V. Disposition.
Because the proposed use of the property as a bar is an unlawful
expansion of a prior nonconforming use under the zoning ordinance and the
special use permits granted by the board of adjustment, Parks’ proposal to
use the premises as such is illegal. Accordingly, the district court should
have granted the City’s request for a permanent injunction enjoining
Okoboji Barz, Inc., d/b/a Okoboji Boats, and Parks from operating a bar on
the premises. Therefore, we reverse the judgment of the district court and
remand the case for the court to enter a permanent injunction consistent
with this opinion.
REVERSED AND CASE REMANDED WITH DIRECTIONS.