City of Okoboji, Iowa v. Leo Parks, Jr. And Okoboji Barz, Inc. D/B/A Okoboji Boat Works, Fish House Lounge and Clucker's Broasted Chicken

IN THE SUPREME COURT OF IOWA
No. 12–0335
Filed April 26, 2013
CITY OF OKOBOJI, IOWA,
Appellee,
vs.
LEO PARKS, JR. and OKOBOJI BARZ, INC.
d/b/a OKOBOJI BOAT WORKS, FISH HOUSE LOUNGE
and CLUCKER’S BROASTED CHICKEN,
Appellants.
Appeal from the Iowa District Court for Dickinson County,
Patrick M. Carr, Judge.
Appellant challenges the district court’s entry of an injunction.
AFFIRMED AS MODIFIED.
Sean J. Barry and Richard J. Barry of Montgomery, Barry, Bovee &
Barry, Spencer, for appellants.
Michael J. Chozen, Spirit Lake, for appellee.
2
APPEL, Justice.
In this case, we again consider issues surrounding the efforts of
the City of Okoboji to enforce zoning restrictions on a property located on
the shore of West Lake Okoboji. The lakefront property is zoned
residential, but has been historically operated as a marina pursuant to
special-use permits allowing nonconforming use. We have previously
held that while the use of the property as a marina is lawful under the
special-use permits, they do not allow an expansion of use that includes
on-premises consumption of alcohol with live entertainment, karaoke,
hog roasts, and full-moon parties. City of Okoboji v. Okoboji Barz, Inc.
(City of Okoboji I), 717 N.W.2d 310, 315–16 (Iowa 2006). After the district
court, on remand from our decision in City of Okoboji I, entered a narrow
injunction limiting relief to denial of a city liquor license, we held in a
certiorari proceeding that the district court erred in not giving the City
broader relief and remanded the case again. City of Okoboji v. Iowa Dist.
Ct. (City of Okoboji II), 744 N.W.2d 327, 332 (Iowa 2008).
Undeterred, the owner of the property now seeks to operate a bar
on a structure called the Fish House Lounge, which, while generally
moored to the marina’s “seawall,” is capable of getting underway on the
lake. The Fish House Lounge has a class “D” liquor license from the
state. The City objected to the operation of the Fish House Lounge as
contrary to our holdings in City of Okoboji I and City of Okoboji II and
sought declaratory and injunctive relief. The district court ruled that the
arrangement amounted to a nonconforming use of the property in
violation of the City’s zoning regulations. The court entered an
injunction prohibiting use of the marina property to provide parking,
access to or from, and supporting services, including bathroom facilities,
to patrons of a boat, vessel, or structure on which alcohol is served or
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upon which entertainment, music, karaoke, abandon-ship parties, or
howl-at-the-moon parties are provided. The injunction further prohibited
the selling or serving of alcohol, wine, and beer on any boat or structure
moored to or attached to the marina and on or from any boat or
structure attached to a dock extending from the premises.
The property owner appeals. We now affirm the district court as
modified below.
I. Factual and Procedural Background.
The factual background of this dispute has already been set forth
in City of Okoboji I and City of Okoboji II. Historically, two marinas, the
Cove and Okoboji Boats, were located on the lakeshore of West Lake
Okoboji. In 1972, the City of Okoboji enacted a zoning ordinance. The
properties where the marinas were located were zoned lakeshore
residential. Section 2(A) of article VII of the ordinance dictates that
single-family dwellings are the only permitted principal uses of lakeshore
residential property. Okoboji Zoning Ordinance art. VII, § 2(A) (2006)
(originally codified in 1972). In addition, section 2(B)(2) of article VII
prohibits use of property in a lakeshore residential district as an entry
point for commercial access. Id. § 2(B)(2). In 1973, the properties
received special-use permits that grandfathered in then-existing
operations as nonconforming uses under the ordinance. In 1975, the
two marinas merged into a single marina known as Okoboji Boat Works.
Leo Parks, Jr., purchased Okoboji Boat Works in 2001.1 As part of
a remodeling effort, Parks sought to build a bar on the marina property
that would serve on-site liquor. The City denied Parks’s request for a
1The defendants in this action are Parks and Okoboji Barz, Inc. d/b/a Okoboji
Boat Works, Fish House Lounge and Clucker’s Broasted Chicken. Throughout this
opinion, we collectively refer to the defendants as “Parks.”
4
class “C” commercial liquor license, stating that “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.”
City of Okoboji I, 717 N.W.2d at 313. When Parks appealed the City’s
denial to the alcoholic beverages division of the Iowa Department of
Commerce, the City filed an action seeking temporary and permanent
injunctive relief against operation of a tavern as a nonconforming use.
Id. The district court denied the City relief, and the City appealed. Id.
On appeal, we reversed the judgment of the district court and
remanded the case to the district court for entry of a permanent
injunction prohibiting the use of the property as a bar. Id. at 317. We
noted that Parks intended to operate his bar for long hours and to host
activities such as karaoke, live music, hog roasting, and monthly full-
moon parties. Id. at 316. We held that such activity changes the nature
and character of the nonconforming use. Id. As a result, we held Parks’s
proposal to operate a full-fledged bar could not be considered an
accessory use to the operation of the marina. Id.
On remand, the City asked the district court to enter an injunction
prohibiting both the operation of the bar and use of the marina for live
music, karaoke, hog roasts, and full-moon parties. City of Okoboji II, 744
N.W.2d at 329–30. The district court entered an injunction that only
prohibited Parks from selling alcoholic beverages for on-premises
consumption, thus prohibiting him from obtaining a class “C” liquor
license. Id. at 330. The City sought a writ of certiorari, arguing that
under the district court’s order, Parks could sell packaged beer and wine
to patrons and maintain a bar-like atmosphere on the premises. Id.
In City of Okoboji II, we sustained the writ and held the narrow
district court order fell short of our mandate in City of Okoboji I. Id. at
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333. We emphasized that our opinion in City of Okoboji I was based on
the expanded activities associated with the proposed bar and not on the
method of licensing. Id. at 332. We stated, “[T]he injunction must
prohibit the activity of operating a bar under the circumstances proposed
without regard to the manner alcoholic beverages would be sold or
consumed.” Id.
Twenty-five days prior to the issuance of our City of Okoboji I
opinion, Parks began implementing an alternate legal strategy. Parks
obtained a class “D” liquor license from the alcoholic beverages division
of the Iowa Department of Commerce for an excursion boat, the Fish
House Lounge. The Fish House Lounge is a thirty-by-forty-foot structure
on pontoons. Parks obtained the class “D” liquor license for the Fish
House Lounge from the state, and not the City, based upon the state’s
control of the lake bed. Later applications for a state liquor license
requested licensing for additional excursion boats.
In February 2010, after the Fish House Lounge had been in
operation for a period of time, the City brought a second action seeking
declaratory and injunctive relief. The district court granted the City
relief. The district court found that the Fish House Lounge cannot cruise
the lake during winter months, has no regular cruise schedule, and is
rarely seen cruising the lake. It found that though the Fish House
Lounge has small restroom facilities, patrons are asked to use the
restroom facilities on the marina property. The district court further
found that the Fish House Lounge presents live and recorded
entertainment to patrons, hosts theme parties, karaoke, and other
activities as outlined in City of Okoboji I and City of Okoboji II, and
operates as late as midnight. The district court concluded Parks was
engaged in the very activities prohibited by this court in City of Okoboji I
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and City of Okoboji II, but had simply moved the activities a few feet west
onto the Fish House Lounge.
As a result of these factual findings, the district court concluded
that the use of the Okoboji Boat Works property to provide ingress and
egress to and from a bar, to provide motor vehicle parking for patrons of
a bar, and to provide restroom facilities to patrons of a bar constituted
an unlawful expansion of the preexisting nonconforming use. The
district court further held that Iowa Code section 414.20 authorizes the
issuance of an injunction and that the failure to enter an injunction
would effectively sanction conduct that the City’s ordinance prohibits.
In light of its findings of fact and legal conclusions, the district
court entered an injunction prohibiting Parks from:
1. Using the premises described in Exhibit 12 . . . to
provide access to or from, provide parking for persons
seeking access to or from, or provide supporting services
including bathroom facilities to patrons of, any boat, vessel
or structure on which alcohol is sold and consumed or on
which entertainment, music, karaoke, abandon ship parties,
or howl at the moon parties are provided, while such boat,
vessel or structure is moored or otherwise attached to a dock
extending from or attached to the said premises; and
2. From selling or serving alcohol, wine or beer, from
providing entertainment, music, karaoke, abandon ship
parties and howl at the moon parties, on or from any boat or
other structure which is moored or attached to the premises
described in Exhibit 1 . . . or on or from any boat or other
structure which is moored or attached to a dock extending
from said premises.
The district court declined the City’s request to enjoin Parks from
providing access to or from a boat or vessel on which alcohol is sold and
consumed within three hundred feet of the marina.
Parks appeals.
2Exhibit 1 refers to the legal description of Parks’s property, which the City
attached to its petition.
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II. Standard of Review.
A request for an injunction invokes the district court’s equitable
jurisdiction. Iowa R. Civ. P. 1.1501. We review the district court’s order
issuing a permanent injunction de novo. Opat v. Ludeking, 666 N.W.2d
597, 603 (Iowa 2003). “Although the trial court’s factual findings are not
binding” in an action seeking an injunction, “we give weight to the court’s
assessment of the credibility of the witnesses.” Id.
III. Discussion.
A. Introduction: Nonconforming Marinas in Residential Areas.
Because the use of land adjoining lakes as marinas often predates city
zoning ordinances, nonconforming marinas are common in lakeside
residential districts. 3 Patricia E. Salkin, American Law of Zoning
§ 18.53, at 18-143 (5th ed. 2012) [hereinafter Salkin]. As a general rule,
the established nonconforming use may not be extended. Id. at 18-144.
On the other hand, a mere intensification of use by the addition of more
boats at a marina is unlikely to be regarded as an impermissible
extension. Id.
Whether new activities on marina property amount to an
impermissible extension of use or a permitted intensification of use is
often a matter of judgment. We made that judgment with respect to the
operation of a bar with extended hours and various forms of
entertainment in City of Okoboji I and City of Okoboji II. The question
before us now is whether our prior rulings can be avoided by moving the
locus of prohibited activity onto a floating pontoon structure that is
located above the state-owned lake bed and outside the geographic
boundaries of the City, but which utilizes the upland marina property for
ingress, egress, parking, and restroom facilities.
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B. Positions of the Parties. Parks’s broadest challenge to the
district court’s order on appeal arises from the state’s ownership of the
lake bed of West Lake Okoboji. See State v. Sorensen, 436 N.W.2d 358,
361–62 (Iowa 1989) (noting state holds title to navigable waters in its
sovereign capacity as a public trust); Peck v. Alfred Olsen Constr. Co., 216
Iowa 519, 522, 245 N.W. 131, 132–33 (1932) (same). Parks asserts the
City has no zoning authority over the lake bed because the state owns
the lake bed of West Lake Okoboji in its sovereign capacity. See Mohawk
Valley Ski Club, Inc. v. Town of Duanesburg, 757 N.Y.S.2d 357, 359 (App.
Div. 2003) (indicating state title to navigable waters prevents local
exercise of zoning authority over underwater lands), abrogated on other
grounds by Town of North Elba v. Grimditch, 948 N.Y.S.2d 137, 146 (App.
Div. 2012) (holding Lake Placid is not a navigable water subject to the
public trust doctrine). Because the Fish House Lounge is floating over
the lake bed when it is moored to the marina’s seawall, Parks concludes
the City cannot seek to regulate activities occurring on the Fish House
Lounge through its zoning power.
In the alternative, Parks claims that under various statutes other
state agencies are responsible for regulation of lake bed activities. See
Iowa Code § 455A.2 (2009) (“A department of natural resources is
created, which has the primary responsibility for . . . managing . . . land
and water resources in this state.”); id. § 461A.3 (“The [natural resource]
commission shall have the power to maintain, improve or beautify state-
owned bodies of water, and to provide proper public access thereto.”); id.
§ 461A.4(1)(a) (“A person shall not construct a structure including but
not limited to a pier [or] wharf . . . upon or over any state-owned or state-
managed land or water under the jurisdiction of the commission without
first obtaining from the commission a written permit.”); id. § 461A.4(2)
 9
(“A person shall not operate a commercial concession in a . . . recreation
area under the jurisdiction of the department without first entering into a
written contract with the department.”); id. § 461A.18 (“Jurisdiction over
all meandered streams and lakes of this state . . . is conferred upon the
commission.”). Parks asserts that under these statutes, the state has
reserved the exclusive power to regulate all activities over the lake bed,
such as those occurring on the Fish House Lounge. Although Parks does
not use the term, he is essentially claiming that whatever zoning
authority the City might have over the Fish House Lounge’s activities is
preempted by state statutes. Cf. Goodell v. Humboldt County, 575
N.W.2d 486, 492–93 (Iowa 1998) (discussing preemption in the context of
a county’s home rule authority).
In addition to the state sovereignty and statutory preemption
arguments, Parks questions whether the City as a matter of local law has
the power to assert its zoning authority over the Fish House Lounge.
Parks argues the boundary line of the City of Okoboji is the mean high
water mark of the lake. Parks claims that because the City has zoning
authority only within its geographic area, it does not have zoning
authority over the Fish House Lounge, which is located below the mean
high water mark when moored to the marina property and is, according
to Parks, thus outside the boundary of the City. See City of Rye v.
Boardman, 171 N.Y.S.2d 885, 887 (Sup. Ct. 1958) (holding underwater
land is not within zoning authority of a city when a city zoning map does
not include underwater land within the boundary of the municipality).
Even if the City has regulatory authority over the use of the
marina’s land to support activities on the Fish House Lounge, Parks
claims the district court still erred in granting an injunction for multiple
reasons. First, Parks claims the Fish House Lounge activities are merely
10
accessory to the permitted use of operating a marina. See City of Okoboji
v. Okoboji Barz, Inc. (City of Okoboji III), 746 N.W.2d 56, 61–64 (Iowa
2008) (discussing accessory use). Second, Parks claims the City has not
shown that injunctive relief is appropriate. While Parks concedes Iowa
Code section 414.20 provides authority for enjoining conduct in violation
of zoning laws, he points out that such an injunction is not favored and
should be “granted with caution and only when clearly required.” See
Incorporated City of Dennison v. Clabaugh, 306 N.W.2d 748, 755 (Iowa
1981). Third, Parks further claims the City has failed to meet its burden
in demonstrating a need for injunctive relief under all the facts and
circumstances of this case. See Cmty. State Bank, Nat’l Ass’n v. Cmty.
State Bank, 758 N.W.2d 520, 528 (Iowa 2008) (setting forth factors a
party seeking an injunction must establish).
Parks also challenges the scope of the injunction. Parks asserts
the injunction is overbroad in that it enjoins Parks from serving liquor on
the Fish House Lounge when it is moored to the marina property. Parks
further asserts that because he has a liquor license from the state, the
injunction conflicts with state law. See People v. Gray, 242 N.E.2d 298,
300 (Ill. App. Ct. 1968) (holding an excursion boat owner with a valid
state-issued liquor license is not required to also have a county-issued
liquor license). Additionally, Parks asserts the extension of the
injunction to include other excursion boats was improper because the
operations of these boats were not specifically at issue in the underlying
litigation.
In response, the City claims it does not seek to regulate activities
over the lake bed. Instead, the City argues it only seeks to regulate
activities occurring on the upland estate. The City notes that under Iowa
Code section 414.1(1), it is “empowered to regulate and restrict the . . .
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use of . . . land.” The City argues none of the jurisdictional arguments
raised by Parks prevent it from regulating the use of the marina’s real
property located above the mean high water mark of the lake.
The City maintains the use of the real property to support activities
occurring on the Fish House Lounge is outside the nonconforming use of
marina operations and cannot be considered an accessory use. See City
of Jewell Junction v. Cunningham, 439 N.W.2d 183, 186 (Iowa 1989).
Citing the facts as found by the district court, the City largely reprises
prior arguments made in City of Okoboji I and City of Okoboji II,
essentially asserting that a loud, bar-like atmosphere is not an accessory
use to the marina as it has operated in the past. Because the loud, bar-
type establishment is not an accessory use of the marina property, the
City argues, providing ingress, egress, parking, and restroom facilities in
support of such activities are not permitted accessory uses even if the
activities are located outside the City’s zoning jurisdiction.
The City defends the need for an injunction to restrain Fish House
Lounge operations. The City cites Iowa Code section 414.20, which
provides that when a building or structure is used in violation of a zoning
ordinance or regulation, the municipality may bring an action “to
prevent” or “abate” the violation or to “prevent any illegal act, conduct,
business, or use in or about such premises.” The City argues this Code
provision creates a clear statutory basis for an injunction in zoning
cases. Further, the City points to our opinion in City of Okoboji II, where
we indicated the legal process relied upon by the City would be
essentially undermined without injunctive relief. City of Okoboji II, 744
N.W.2d at 332.
With respect to the scope of the injunction, the City argues that
requests for equitable relief should be construed liberally. See Henry
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Walker Park Ass’n v. Mathews, 249 Iowa 1246, 1257, 91 N.W.2d 703,
711 (Iowa 1958). The City argued that if the injunction were limited
specifically to the Fish House Lounge, Parks would simply transfer the
activity to another one of the three large boats owned by Parks.
C. Jurisdictional Issues. Parks has raised some interesting
jurisdictional issues. His claim that a municipality may not impose
zoning regulations above state-owned property held in public trust is
supported by New York authority. See Mohawk Valley Ski Club, 757
N.Y.S.2d at 359; Erbsland v. Vecchiolla, 313 N.Y.S.2d 576, 577–78 (App.
Div. 1970).3 On the other hand, Maryland authorities hold that the
zoning power of a municipality may extend over wharfs located above
public trust property. Holiday Point Marina Partners v. Anne Arundel
County, 707 A.2d 829, 836 (Md. 1998); Peoples Counsel v. Md. Marine
Mfg. Co., 560 A.2d 32, 35 (Md. 1989); Harbor Island Marina, Inc. v. Bd. of
Cnty. Comm’rs, 407 A.2d 738, 746–49 (Md. 1979). While the context is
different, early Iowa authority suggests that a city may be able to
regulate the use of wharves, docks, landings, and wharfage on the
Mississippi River. See City of Dubuque v. Stout, 32 Iowa 80, 85 (1871);
City of Muscatine v. Hershey, 18 Iowa 39, 42 (1864).
Similarly, Parks raises preemption questions related to municipal
zoning authority with respect to docks and vessels physically located
over the lake bed. The statutes Parks cites do not expressly state that
local municipalities are prevented from exercising zoning authority with
respect to structures over lake beds subject to public trust, but perhaps
an argument could be made that such preemption is implied by the
3Even in New York, however, zoning authority extends to docks and wharfs that
are within the scope of the landowner’s riparian rights. See Town of Islip v. Powell, 358
N.Y.S.2d 985, 992 (Sup. Ct. 1974).
13
comprehensive nature of the regulatory scheme. See, e.g., Rapoport v.
Zoning Bd. of Appeals, 19 A.3d 622, 636 (Conn. 2011) (holding, under
applicable statutes, that state department of environmental protection
has exclusive authority over docks and waterways above the mean high
water line unless the city adopts a harbor management plan); Lakeside
Lodge, Inc. v. Town of New London, 960 A.2d 1268, 1270, 1275 (N.H.
2008) (holding the existence of a comprehensive regulatory scheme
governing the design and placement of docks over state-owned waters
preempted a town’s ordinance limiting privately-owned docks to six users
and six boats at any one time). On the other hand, in a number of cases,
state statutes have been found not to preempt municipal zoning on
waterfronts. See, e.g., GLA & Assocs., Inc. v. City of Boca Raton, 855
So. 2d 278, 282–83 (Fla. Dist. Ct. App. 2003) (holding a city’s regulation
of activities seaward of coastal construction line were valid); People’s
Counsel, 560 A.2d at 36 (noting that a county may regulate riparian
improvements to submerged land); Golden v. Bd. of Selectmen, 265
N.E.2d 573, 576–77 (Mass. 1970) (permitting a city to regulate the filling,
dredging, and excavating of coastal wetlands notwithstanding a state
statute that purported to regulate the same activities); see also Mayor of
Annapolis v. Annapolis Waterfront Co., 396 A.2d 1080, 1086 (Md. 1979)
(holding a state statute granting a city the authority to regulate the
construction of wharves did not limit the factors the city could take into
account in making those decisions).
Finally, Parks’s claim that the City cannot exercise zoning
authority outside its boundaries has support in the commentary. See,
e.g., 8 Eugene McQuillin, The Law of Municipal Corporations § 25:92, at
444 (3d ed. 2010 rev. vol.) [hereinafter McQuillin] (“The zoning power of a
municipal corporation usually is limited to its corporate area, and to
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such territory beyond its corporate boundaries as may be designated by
statute.” (footnote omitted)); 1 Salkin § 9:13, at 9-35 (“Where a zoning
map shows that the boundary of a district terminates at the shoreline,
underwater land beyond the shoreline is not included in the district.”).
While one authority has noted that it is not uncommon for state
legislatures to authorize cities to exercise extraterritorial zoning power, 3
Edward H. Ziegler, Rathkopf’s The Law of Zoning and Planning § 35:6, at
35-10 (4th ed. 2004) [hereinafter Rathkopf’s], no such authorization has
been cited by the parties here. We have said that the scope of a city’s
zoning authority should be strictly construed to favor the free use of
property and that it will not be extended by implication or interpretation.
City of Okoboji III, 717 N.W.2d at 314; Jersild v. Sarcone, 260 Iowa 288,
296, 149 N.W.2d 179, 185 (1967). In this case, there is no City of
Okoboji ordinance expressly authorizing zoning over the lake bed. While
there is authority for the proposition that a municipality’s zoning
authority extends to appurtenances such as docks and wharfs that
extend from the upland, see, e.g., Holiday Point Marina Partners, 707
A.2d at 836, these cases may not be persuasive where the underwater
land is not within a city’s boundaries.
While Parks has raised a number of substantial arguments related
to the power of the City of Okoboji to zone over the lake bed, his
arguments miss the mark. On appeal, the City makes it clear that it
does not claim zoning authority over the lake bed structures, which
would raise the issues cited by Parks. Instead, the City asserts only that
it has authority over the upland real property that is clearly within the
city limits. The City claims that the nonconforming use of the real
property owned by Parks on the lakeshore is limited to marina operations
and that the use of the real property for ingress and egress to the Fish
15
House Lounge, to provide parking for patrons of the Fish House Lounge,
and to provide restroom facilities for patrons of the Fish House Lounge is
inconsistent with the preexisting nonconforming use.
In light of the City’s disclaimer of authority to zone over the lake
bed, we consider only whether the City has shown that it is entitled to
injunctive relief because the use of the upland real property owned by
Parks is inconsistent with its prior nonconforming use and does not
amount to an accessory or incidental use.
D. Accessory Use of Upland Marina Property. Parks asserts
that because the use of excursion boats is a valid operation of a marina
and permitted under the special-use permits, the sale of alcohol on the
excursion boats and the related activities he seeks to promote is a
permitted reasonable and accessory use. Parks argues that accessory
uses are permitted because it is impossible to foresee or describe every
lawful use of property. See City of Okoboji III, 746 N.W.2d at 61.
In City of Okoboji I, we held that activities similar to those now
conducted at the Fish House Lounge could not be considered “merely an
accessory use to the operation of the marina.” 717 N.W.2d at 316. We
concluded the use of the marina for various activities associated with the
sale of alcoholic beverages “change[s] the nature and character of the
non-conforming use” existing prior to the enactment of the City’s zoning
ordinance in 1972. Id.
Parks has moved the location of the bar itself a few feet from dry
land to the floating Fish House Lounge moored to the seawall at the
marina. The fact remains, however, that Parks proposes to use real
property within the city limits to support an expansion of activities
associated with the marina by providing ingress, egress, parking, and
restroom facilities to what amounts to a floating bar. The use of upland
16
for access or as an accessory use in contravention of zoning regulations
to support activities on lands lying underwater amounts to a zoning
violation. Cf. 3 Rathkopf’s § 35:5, at 35-8 (“If the upland were in a
residentially zoned district, use thereof for access to and as accessory to
a commercial use of the lands lying under water would constitute a
violation of residential restrictions.”).
We see no basis to walk back our prior cases involving Parks and
the City of Okoboji. Based on our review of the record, we conclude the
City has shown a use of the property that exceeds the scope of the prior
nonconforming use allowed under the special-use permits. Prior to
1972, the property was used for operating marinas. The marinas were
open between 8:00 a.m. and 5:00 p.m., with the gas dock occasionally
staffed until 8:00 p.m. As the district court noted, there was no evidence
that, prior to 1972 when the City enacted its zoning ordinance, the
property was used to provide nearly permanent mooring for a liquor
establishment, to provide restroom facilities for patrons of such an
establishment, or to provide parking for such use. Since 2008, however,
the marina property has been providing access to a floating bar that
stays open at night. There has been an increase in traffic, crowded
parking, noise, and other activities often associated with bar operations.
While it is true that the main platform upon which liquor is sold and
loud activities occur is above the lake bed, it is obvious the activities of
the Fish House Lounge are inextricably intertwined with the use of the
real property subject to the City’s zoning restrictions. The use of the
property for ingress and egress, for restroom facilities, and for parking to
a floating bar moored at the marina are not accessory uses to the valid,
nonconforming use of the marina. These uses of the upland real estate
are also in violation of section 2(B)(2) of article VII of the City’s zoning
17
ordinance, which prohibits such lakeshore lots from being used for
access to commercial activities.
E. Propriety of Injunctive Relief. We also conclude that the City
has met its burden of showing the need for injunctive relief. We
recognize that we have applied common law factors in determining the
propriety of an injunction to enforce a zoning ordinance. See, e.g., Cmty.
State Bank, 758 N.W.2d at 528. A plaintiff seeking permanent injunctive
relief must establish “ ‘(1) an invasion or threatened invasion of a right;
(2) that substantial injury or damages will result unless the request for
an injunction is granted; and (3) that there is no adequate legal remedy
available’ ” (quoting Sear v. Clayton Cnty. Zoning Bd. of Adjustment, 590
N.W.2d 512, 515 (Iowa 1999)). Applying the common law factors, the
course of this litigation demonstrates the need for an injunction in order
to provide an adequate remedy to ensure enforcement of the ordinance.
The use of the marina to support the activities of the Fish House Lounge
through providing access, parking, and restroom facilities has had an
adverse impact on the residential character of the waterfront. Under the
circumstances, we have no difficulty concluding that an injunction was
necessary to ensure effective enforcement of the ordinance. See 8A
McQuillin § 25:383, at 1188–92 (injunctive relief available to restrain
violations of zoning ordinances where the violation of zoning ordinance is
continuing in nature).
We further agree with the City that it is entitled to injunctive relief
with respect not to just the Fish House Lounge, but to other excursion
boats that might use the property. As noted in Henry Walker Park Ass’n,
249 Iowa at 1257, 91 N.W.2d at 711, prayers for general relief are to be
construed liberally. Under a prayer for general relief, a court may grant
relief “consistent with the pleadings and the evidence.” Id. at 1258, 91
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N.W.2d at 711. Any relief granted, however, must also be such “as will
not surprise the opposing party.” Jorge Constr. Co. v. Weigel Excavating
& Grading Co., 343 N.W.2d 439, 442 (Iowa 1984).
In this case, we find that the relief granted over potential use of the
upland to support other excursion boats was well within the authority of
the district court in light of the pleadings and evidence. The City
requested that Parks be restrained from providing “access to and/or from
boats(s) or vessel(s) on which alcohol is sold and consumed and on which
entertainment, music, karaoke, abandon-ship parties, and howl-at-the-
moon parties are provided while moored to the subject premises or to
dock(s) extending from the subject premises, including the Fish House
Lounge.” Further, the record in this case shows that Parks owns three
large boats. We conclude that the granting of an injunction covering
boats other than the Fish House Lounge was consistent with the
pleadings and evidence and did not come as a surprise to Parks. See
Jorge Constr. Co., 343 N.W.2d at 442; Henry Walker Park Ass’n, 249 Iowa
at 1257, 91 N.W.2d at 711. Given the posture of the litigation, it would
make little sense to enjoin access, parking, and restroom facility use with
respect to activities on the Fish House Lounge only, but to allow Parks to
simply transfer the activities to another boat free from restraint. To
ensure that the injunction was commensurate with the relief requested,
and to close a potential loophole, the district court acted within its
authority when it sculpted the injunctive relief to include other excursion
boats owned by Parks.
We disagree with the district court in one respect. Because the
City does not assert its zoning authority over docks on the lake bed, we
conclude that the injunction should not enjoin the provision of or sale of
liquor on boats when moored at the docks as compared to those moored
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directly to the shoreline. Of course, this distinction makes little
difference as the City has shown entitlement to an injunction that
prohibits Parks from using the upland to provide ingress, egress,
parking, or restroom facilities to patrons of boats or similar vessels
selling alcohol or engaging in bar-type activities while docked at the
marina. Because the issue has not been joined on appeal, we leave for
another day whether or under what circumstances the City may assert
direct zoning authority over docks extending onto the lake.
IV. Conclusion.
For the above reasons, we affirm the district court’s order granting
an injunction in this case. On remand, however, the district court
should modify its injunction to prohibit the nonaccessory activities solely
on the land within the geographic boundaries of the City.
AFFIRMED AS MODIFIED.