Agenda - Planning Commission - 06/05/2008

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88 Zoning Bulletin the current use of the property as a :restaurant, and therefore would be an illegal nonconforming use. . ParkS appealed the city's denial of the liquor license to the Iowa Department of Commerce, Alcohplic Beverages Division. At the same time, .fearing Parks would ultimately transform the Restaurant. into a bar or tavern, the city filed a petition in district court. The city asked the court to declare that Parks could not op- erate a bar on the restaurant premises. Parks asked the court to de- clare that the sale and service of alcoholic beverages at the restaurant would not violate the city ordinance. The district court ultimately determined that the sale of alcoholic beverages would constitute a separate and distinct nonconforming use and an unlawful expansion of an existing nonconforming use. Parks appealed. The court of appeals held that the sale of alcoholic beverages at the Restaurant would not constitute a nonconforming use or an unlawful expansion of the existing nonconforming use. It remanded the case to the district court to enter an order for the city . to issue a liquor license for the restaurant. The city appealed. DECISION: Decision of court of appeals vacated. Judgment of dis- trict court reversed. Case remanded. The court concluded that the sale and service of alcoholic bever- ages to restaurant patrons was not a nonconforming use prohibited under the city's zoning ordinance. The city had argued that because the city's zoning ordinance lim- ited the sale and service of alcoholic beverages to three specific uses of property-"a cocktail lounge, cabaret," a "nightclub," and a "tav- ern" -and did not include the sale and service of alcoholic beverages . in the ordinance's definition of "restaurant," it was clear that the sale and service of alcoholic beverages was to be a separate and distinct use of the property from the use of property as a restaurant. The court found that the city's interpretation. of the ordinance ignored the rule that accessory uses were permitted to accompany legal noncon-' forming uses. That rule, the court said, allowed property to be used in ways not expressly permitted under the ordinance. So; while the sale and service of alcoholic beverages was not expressly permitted by the city's ordinance in the definition of the use of property as a "res- taurant," this did not mean it was a prohibited nonconforming use. The court noted that unless an ordinance specified types of acces- sory uses, a particular use would be a permitted accessory when it was customary and incidental to the principal use of the property. The court found that although the city's ordinance did not specify the 8 ,~.;;. ;.~ ~ . iJt" :ii-.< , 't' (('. '- / ---,- C"" I "~ ;..J . ..... l/~.. . , "oj