Agenda - Planning Commission - 06/07/2018

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Zoning Bulletin May 10, 2018 I Volume 12 I Issue 9 the legal nonconforming use. The City had argued that Ogden had exceeded the established nonconforming use of the Property because the use of the mobile home park had intensified in teiius of the numbers and location of structures attached to mobile homes. The court disagreed. The court explained that "intensification of a nonconforming use is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used." Here, the court found that the City failed to present evidence demonstrating that the zoning violations at Oak Hill had been "expanded to the point where the established nonconforming use is `substantially or entirely different from the original use.' " The court observed that Oak Hill had not changed in size or in its form of use as a mobile home park. The court found that the number and location of the mobile homes was roughly the same in 2014, as it was in 1963 (which was the date of the first ae- rial photograph of the Property on record). Further, the court found that the additions to the structures of the mobile homes, as well as the "detritus of life" noted by the district court, had "not substantially changed the nature and character of Ogden's use of the [P]roperty as a mobile home park.".Rather, the court found that "steady increase in the additions to the mobile home structures and other objects found on the [P]roperty represents a marginal change that falls within the degree of latitude that the law affords to property owners in their nonconforming use." "Ultimately," concluded the court, "Oak Hill [was] being used as a mobile home park in a manner that [was] not " `substantially or entirely different' from its original use" as a mobile home park when the City issued the 1955 certificate of occupancy allowing for its nonconforming use. Accordingly, the court concluded that "the City did not prove that Ogden had lost the vested right he had in the operation of Oak Hill Mobile Home Park as a legal nonconforming use." See also: City of Central City v. Knowlton, 265 N.W.2d 749 (Iowa 1978). See also: Worthington v. Everson, 10 Ohio App. 2d 125, 39 Ohio Op. 2d 234, 226 N.E.2d 570 (9th Dist. Medina County 1967). Case Note: In his appeal, Ogden had also claimed that the actions of the City amounted to an unconstitutional regulatory taking. The Supreme Court of Iowa held that Ogden had waived his unconstitutional takings claim by failing to preserve it. Case Note: In its decision, the court cited case law from other jurisdictions that had held that replacing existing mobile homes with larger mobile homes results in an unlawficl expansion of a nonconforming use. However, the court distinguished © 2018 Thomson Reuters 11