GARY NEWT and KAREN NEWT, NEWT MARINE, INC., DUBUQUE BARGE & FLEETING SERVICE, INC. d/b/a NEWT MARINE and DU BUQUE TERMINALS, INC., Plaintiffs-Appellants, vs. THE CITY OF DUBUQUE, IOWA, and THE BOARD OF ADJUSTMENT OF THE CITY OF DUBUQUE, IOWA, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 6-533 / 05-1058
Filed October 25, 2006
GARY NEWT and KAREN NEWT, NEWT MARINE, INC.,
DUBUQUE BARGE & FLEETING SERVICE, INC.
d/b/a NEWT MARINE and DUBUQUE TERMINALS, INC.,
Plaintiffs-Appellants,
vs.
THE CITY OF DUBUQUE, IOWA, and
THE BOARD OF ADJUSTMENT OF THE CITY OF DUBUQUE, IOWA,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica L.
Ackley, Judge.
Plaintiffs appeal a district court decision finding the Board of Adjustment
properly denied their requests for variances from City zoning ordinances.
AFFIRMED.
David J. Dutton and Carolyn A. Rafferty of Dutton, Braun, Staack &
Hellman, P.L.C., Waterloo, for appellants.
Barry A. Lindahl, City Attorney, and James A. O’Brien, Assistant City
Attorney, for appellees.
Heard by Miller, P.J., and Eisenhauer, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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ROBINSON, S.J.
I.
Background Facts & Proceedings
Gary and Karen Newt own Newt Marine, Inc., and Dubuque Barge &
Fleeting Service, Inc. 1 We will refer to all of these entities together as “Newt
Marine.” Newt Marine is located in the south part of the Ice Harbor area in the
City of Dubuque. The companies perform a variety of industrial, manufacturing,
and commercial activity. Newt Marine also leases land from the City of Dubuque
for the same purpose. 2
On April 15, 2002, the City of Dubuque enacted an ordinance which
changed the zoning of Newt Marine’s property from heavy industrial to planned
unit development (PUD).
The City’s master plan envisioned “changing the
character of the area south of the Ice Harbor away from industrial uses to a
pedestrian-oriented environment with places for employment and residential uses
above office spaces.” See Molo Oil Co. v. City of Dubuque, 692 N.W.2d 686,
689 (Iowa 2005). The PUD ordinance has been upheld as a valid exercise of the
City’s police power. Id. at 694.
The ordinances provided that prior nonconforming uses could continue to
operate, “but may not expand in gross floor area nor change in use from one
nonconforming use to another nonconforming use.”
Ordinance No. 31-02 §
5(D)(1). A party may request a variance from the PUD ordinance by filing a
request for a variance with the City of Dubuque Board of Adjustment.
1
Dubuque Barge does business as Newt Marine and Dubuque Terminals, Inc.
2
One lease is due to expire in 2010, and another in 2012.
3
In October 2003, Newt Marine filed a request for a variance to build a new
storage and distribution building. The company stated it had been informed by
the Iowa Department of Transportation (DOT) that it intended to condemn the
land containing Newt Marine’s current warehouse, and so the company sought
authority to build a warehouse in a new location. Newt Marine also filed requests
for variances seeking to build four new storage tanks. It claimed the storage
tanks would be used to replace tanks which had previously been removed
because they were obsolete.
In addition, New Marine filed a request for a
variance from the screening requirements of the PUD ordinance. The Board of
Adjustment denied these requests for variances.
Newt Marine filed a petition for writ of certiorari in district court, contesting
the decisions of the Board of Adjustment. See Iowa Code § 414.15 (2003). The
district court determined the warehouse building and storage tanks would be an
expansion of the current use of the property, and would be contrary to the PUD
ordinance. The court found Newt Marine could still continue its business if the
variances were not granted. The court affirmed the decisions of the Board of
Adjustment. Newt Marine appeals.
II.
Standard of Review
Under Iowa Code section 414.18, the district court reviews a decision of a
board of adjustment de novo. The district court makes its own findings of fact.
Weldon v. Zoning Bd. of Adjustment, 250 N.W.2d 396, 401 (Iowa 1977). If the
court’s factual findings leave the reasonableness of the board’s action open to a
fair difference of opinion, the court may not substitute its decision for that of the
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board. U.S. Cellular Corp. v. Bd. of Adjustment, 589 N.W.2d 712, 716 (Iowa
1999). We review the district court’s decision for the correction of errors at law.
Chrischilles v. Arnolds Park Zoning Bd. of Adjustment, 505 N.W.2d 491, 493
(Iowa 1993). The district court’s decision is binding on appeal if supported by
substantial evidence. Weldon, 250 N.W.2d at 401.
III.
Merits
Newt Marine is engaged in a prior nonconforming use of its land.
A
nonconforming use is a use that was lawful when a zoning restriction was
enacted, and has continued to exist under a “grandfather” clause. See Perkins v.
Madison County Livestock & Fair Ass’n, 613 N.W.2d 264, 270 (Iowa 2000).
Property may lose its protection as a permissible nonconforming use if the use of
the property is enlarged or extended. City of Jewell Junction v. Cunningham,
439 N.W.2d 183, 186 (Iowa 1989). The supreme court has stated:
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.
Stan Moore Motors, Inc. v. Polk County Bd. of Adjustment, 209 N.W.2d 50, 53
(Iowa 1973).
On the other hand, “an intensification of a non-conforming use is
permissible so long as the nature and character of the use is unchanged and
substantially the same facilities are used.” City of Central City v. Knowlton, 265
N.W.2d 749, 754 (Iowa 1978) (citation omitted).
An increase in business,
standing alone, does not constitute an illegal expansion of a nonconforming use.
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City of Jewell Junction, 439 N.W.2d at 186. “Reasonable and normal accessory
uses are usually permitted in connection with nonconforming uses.”
City of
Okoboji v. Okoboji Barz, Inc., 717 N.W.2d 310, 315 (Iowa 2006).
If a proposed change or expansion to the use of property is not permitted
by the city’s ordinances, a land owner may request a zoning variance from the
city’s board of adjustment.
Iowa Code section 414.12(3) permits boards of
adjustment to grant variances as follows:
To authorize upon appeal in specific cases such variance
from the terms of the ordinance as will not be contrary to the public
interest, where owing to special conditions a literal enforcement of
the provisions of the ordinance will result in unnecessary hardship,
and so that the spirit of the ordinance shall be observed and
substantial justice done.
An applicant for a zoning variance must show: (1) the land in question cannot
yield a reasonable rate of return if used only for the purpose allowed in that zone;
(2) the plight of the owner is due to unique circumstances; and (3) the use to be
authorized by the variance will not alter the essential character of the locality.
City of Des Moines v. Bd. of Adjustment, 448 N.W.2d 696, 698 (Iowa 1989). A
failure to show any one of these elements requires the board to deny the request
for a variance. Id.
A.
Newt Marine contends it should have been permitted to relocate
and reconstruct its storage building. Newt Marine states it has been informed by
the DOT that the area of the current storage building will be condemned for
expansion of a bridge. It claims that it is not expanding its use of the property,
but only wants to build a new storage building to replace the one which it will
lose. Carter Newt of Newt Marine stated the company would lose a substantial
6
part of its revenue if it could not have a storage building. He acknowledged the
company did not have any evidence that it could not earn a reasonable rate of
return on the property.
We conclude relocating the storage building would be an expansion of a
nonconforming use under the PUD ordinance. The ordinance provides:
Reconstruction of Existing Uses: In Zone B, the Design Standards
adopted on March 4, 2002, as part of the Port of Dubuque Master
Plan for the Ice Harbor Urban Renewal District shall apply in the
event of reconstruction of an existing use after destruction by more
than fifty percent (50%) of the replacement cost at the time of
destruction. In the event of reconstruction of an existing use by
less than fifty percent (50%) of the replacement cost at the time of
destruction, it may only be reconstructed if such reconstruction
does not increase the degree of nonconformity that existed prior to
destruction.
Ordinance 31-02 § 5(C)(2). Thus, under the ordinance, if the storage building
were totally destroyed, as it would be by the construction of a bridge on that area,
any new construction would be required to meet the new zoning requirements.
The general Dubuque zoning ordinance regarding lawful nonconformities
provides:
Further, no such lawful nonconforming use of land shall be moved
or relocated in whole or in part to any other portion of the zoning lot
on which it is located than that portion occupied at the time of the
adoption of this ordinance.
Zoning Ordinances § 4-6.2(C)(1). The zoning ordinances prohibit the relocation
of the storage building to another portion of Newt Marine’s property.
We then consider whether the board of adjustment should have granted
Newt Marine’s request for a variance to build the storage building. The board
determined the request would adversely impact future development of adjacent
7
property, and the subject property did not suffer a singular disadvantage under
the PUD ordinance.
In its de novo review, the district court found:
The property owner can still utilize the property in the manner which
the business had been operating. No showing of unnecessary
hardship was made.
The Plaintiffs were unable to produce any evidence
indicating that the property could not be developed for uses
permitted under the PUD ordinance. In fact, the current use under
the Plaintiffs’ existing business operation can continue without any
variance being granted with regard to additional storage tanks and
a storage building. Additionally, Plaintiffs were unable to produce
evidence indicating that the business could not continue to earn a
reasonable rate of return utilizing the remaining properties and
functions of those properties.
We determine there is substantial evidence in the record to support the
district court’s findings. Newt Marine failed to show the unnecessary hardship
which would be necessary for the board to grant a variance.
Carter Newt
admitted the company did not have any evidence that it could not earn a
reasonable rate of return on the property. We affirm the district court on this
issue.
B.
Newt Marine sought variances to build four storage tanks. Newt
Marine had removed four storage tanks on its land in 2001 because they were
obsolete. Thus, at the time the PUD ordinance was enacted in April 2002, the
company did not have these storage tanks. Newt Marine claimed it now had the
need for the tanks, and sought to replace them.
Carter Newt testified a
substantial portion of the company’s business came from selling lignin, which it
stored in the tanks. He acknowledged the company was financially productive
during the years after the storage tanks were removed.
8
“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 Okoboji, 717 N.W.2d at 315.
A permissible
nonconforming use was in existence when the zoning restriction became
effective, and continued to exist since that time. Perkins, 613 N.W.2d at 270.
The storage tanks were not in existence at the time the PUD ordinance became
effective. The storage tanks could not be considered to come within the prior
nonconforming use of the property.
Also, section 5(D)(1) provides that a nonconforming use “may not expand
in gross floor area nor change in use from one nonconforming use to another
nonconforming use.” At this point, building four new storage tanks would be an
increase in the area of nonconforming use of the property.
We turn next to the question of whether a variance should have been
granted. The board of adjustment determined Newt Marine did not meet the
requirements to obtain a variance to build the storage tanks. The board noted
Newt Marine had not provided any information regarding economic hardship.
The board also noted that the condition of being without four storage tanks had
been caused by Newt Marine. The district court determined Newt Marine had
failed to show an unnecessary hardship based on the same reasoning in its
discussion of the storage building.
We conclude the district court’s decision is supported by substantial
evidence. The evidence showed Newt Marine had not endured an unnecessary
hardship during the years it was without the four additional storage tanks. Newt
9
Marine can continue its existing business without the four additional storage
tanks. We affirm the district court on this issue as well.
C.
Finally, Newt Marine contends it should be exempt from the
screening requirements of the PUD ordinance.
The PUD ordinance restricts
outdoor storage, and provides, “[m]aterial stored must be screened from view
from adjacent rights-of-way and properties. Screening must be opaque and a
minimum of six (6) feet in height.” Ordinance 31-02 § 5(D)(4)(a).
Newt Marine stores large steel beams and steel coils outdoors. Carter
Newt testified that requiring the company to screen its outdoor storage areas
would greatly inhibit the company’s mobility in those areas. He stated a six-foot
high fence would not effectively screen the company’s goods stored outdoors.
He stated the cost to effectively screen the company’s outdoor goods would be
prohibitive.
The board of adjustment found that application of the PUD ordinance
would not present a singular disadvantage to Newt Marine. It also found that
exempting Newt Marine from the screening requirements would grant the
company a singular privilege, which is not conferred on other land owners in the
area.
The district court found Newt Marine had not shown an unnecessary
hardship.
We determine there is substantial evidence in the record to support the
district court’s findings on this issue.
Newt Marine did not show sufficient
reasons why it should be treated differently than other property owners in the
area. The evidence showed Newt Marine would continue to earn a reasonable
10
rate of return, even if it were required to follow the screening requirements of the
PUD ordinance.
We affirm the decision of the district court.
AFFIRMED.
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