Agenda - Planning Commission - 07/18/2013 - Special

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Zoning Bulletin June 25, 2013 1 Volume 7 1 Issue 12 site liquor. The City denied Parks' request for a commercial liquor license. The City said such a use represented an unpermitted, substantial change in the nature and character of the use permitted under the special use permit. Eventually, the City obtained in court a permanent injunction against use of the property as a bar. The court agreed with the city that such an activity illegally changed the nature and character of the nonconform- ing use. As a result, the court held that a bar could not be an accessory use to the operation of the marina. Undeterred, Parks sought to operate a bar on an excursion boat —a 30-by-40-foot structure on pontoons —on the lake bed. The lake bed was under the State of Iowa's jurisdiction. Parks obtained a liquor license from the State and began operating the "Fish House Lounge" on the excursion boat. The City again brought an action in court, asking the court to pro- hibit operation of the Fish House Lounge. Parks argued that the City had no zoning authority over the land beneath the mean high water mark of the lake and the lake bed because it was within the State's jurisdiction. The City argued it only sought to regulate the use of the real prop- erty on the upland estate that supported activities occurring on the Fish House Lounge, including: ingress, egress, parking, and restroom facilities. The City maintained that those uses were outside the nonconforming use of marina operations and could not be considered permitted accessory uses. The district court entered an injunction prohibiting Parks from: (1) "using the upland property to provide access to or from, provide park- ing for persons seeking access to or from, or provide supporting ser- vices including bathroom facilities to patrons of . . . [the Fish House Lounge], while [it was] moored . . . [to the dock on the premises]"; and (2) from "[operating a bar] [on any boat] . . . moored or attached to the premises or . . . to a dock extending from said premises." Parks appealed. DECISION: Affirmed as modified. The Supreme Court of Iowa held that the City had shown a use of the property that exceeded the scope of the prior nonconforming use al- lowed under the special -use permits. The court found that, although Parks had moved the bar over the lake bed —and out of the City's jurisdiction —the fact remained that Parks proposed to use real property within the City limits to support an expansion of activities associated with the marina —a floating bar —by providing ingress, egress, parking, and restroom facilities. The court held that the use of the upland for access or as an accessory use in © 2013 Thomson Reuters 7