Opinion
No. 4-294 / 03-0436
July 14, 2004
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.
A landowner appeals from a district court order that enjoined the landowner from acting in violation of the approved site plan for its property. AFFIRMED.
Robert Nading of Nading Law Firm, Ankeny, for appellant.
Vicky Long-Hill, Des Moines, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Imperial Properties, Inc. (Imperial) appeals from a district court order that decreed Imperial was in violation of the municipal code of the City of Des Moines (City), and enjoined Imperial from acting in violation of the approved site plan for its property. We affirm the district court.
I. Background Facts and Proceedings.
This matter arose from an August 2002 petition in equity filed by the City, and naming Imperial, the owner of certain property along Merle Hay Road in Des Moines, as defendant. The City's petition alleged that vehicles on Imperial's property were being parked in a manner that violated the City's zoning and site plan ordinances. The basis of the City's complaint was that vehicles were being parked in locations other than those areas designated for parking on the site plan for the property, which the City had approved in 2001. The City sought an abatement of the alleged violations and a permanent injunction to prohibit future non-conforming use.
At the start of trial Imperial stipulated to the majority of the allegations and requests in the City's petition, including the fact that it had violated the municipal code, and could be enjoined from parking cars in violation of the site plan. However, Imperial insisted that it could not be enjoined from otherwise blocking off or barricading a driveway located on the western end of its northern property line (western drive), which allowed access between Imperial's property and adjoining commercial property to the north. Imperial asserted that nothing on the 2001 site plan indicated the western drive must remain unobstructed to provide access to and from the adjacent property. The City contended that blocking the drive would in fact be a violation of the site plan, and must be enjoined.
Imperial's property has three additional driveways, two along the western property line and one in the eastern area of the northern property line. The trial transcript indicates that the City's request for an injunction did extend to all four areas. However, Imperial has limited its argument on appeal to the western drive, and the three additional driveways do not appear to be at issue. Accordingly, we limit our analysis to the western drive.
Following trial the district court entered an order prepared by the City. The order approved the parties' stipulation and further decreed, in relevant part,
[T]he Defendant is enjoined from blocking any access drives, driveways, ingress, egress areas by any means that is in violation of the approved site plan and shall cease such practice until an amended site plan is submitted to the Plaintiff and approved for such use. The areas must remain open.
Following Imperial's motion pursuant to Iowa Rule of Civil Procedure 1.904(2), the court clarified,
The Court is not establishing a public or private easement and is not creating a right to public access. The Court is only ordering that the Defendant must comply with the site plan unless the site plan is amended or modified. Cars may not be parked in violation of the site plan. Defendant further may not block the driveway by another means in violation of the site plan. The Defendant must comply with the site plan and use the property in conformance with the site plan.
Imperial appeals. It contends the district court erred in that its order enjoined Imperial from blocking public access across the western drive, and that in doing so the court effectively established a "public roadway easement" where none existed.
II. Scope of Review.
On appeal we are reviewing the district court's decision to grant the City's request for injunctive relief. Such a request invokes the district court's equitable jurisdiction. Matlock v. Weets, 531 N.W.2d 118, 121 (Iowa 1995). Accordingly, our review is de novo. Id. We give weight to the district court's findings of fact, especially when considering the credibility of witnesses, but are not bound by them. Id. III. Discussion.
Imperial asserts that the district court's order is tantamount to a judicially created public easement over the western drive. However, the order clearly states that it is not in fact creating any form of easement. By its very terms the order only enjoins Imperial from parking vehicles across the drive, or otherwise barricading the area, to the extent such action would violate the site plan. Implicit in the district court's order is a determination that, even absent a legally-enforceable public or private easement in the area of the western drive, Imperial would nevertheless be in violation of the City's municipal code if they blocked the western drive in a manner inconsistent with the approved site plan. We find no error in this conclusion.
The Imperial property must be used in substantial compliance with its approved site plan. Des Moines Mun. Code § 82.215(c). If Imperial permits its property to be used in a manner that does not substantially comply with the site plan, the City may seek to restrain or abate this action. Id. § 82-219. The question implicitly, but not expressly, answered by the district court, and the one that is in fact at the heart of this appeal, is whether barricading the western drive would be an action in substantial compliance with, or in violation of, the approved site plan for Imperial's property. To answer this question we must first review the history of the property.
In 1983 the prior owner of the Imperial property, Hardee's Food Systems, Inc. (Hardee's), submitted a site plan to the City. The approved site plan indicated a paved driveway, in the same location as the western drive, marked "24 foot access easement." This notation referenced a recorded easement entered into by Hardee's and the parties who then owned tracts of land adjacent to and north of the Hardee's property (north property). The agreement created a perpetual easement, in the area of the paved driveway, for the use and benefit of the owners and/or occupants of the north property.
The north property was purchased by Furniture Row USA, LLC (Furniture Row). Furniture Row's site plan, approved in 1984, also indicates the existence of an access easement in the area of Hardee's paved driveway. Furniture Row continues to own the north property.
In May 2001, not long after its purchase of the Hardee's property, Imperial submitted a site plan to the City, seeking approval to utilize the property as a used car sales lot. Imperial's site plan indicated the existence of the western drive, in the same location as the paved driveway on the Hardee's site plan. As it appeared on Imperial's site plan, the drive continued to provide open access up to and including Imperial's northern property line. However, the Imperial site plan did not include any notation of an easement. The site plan was approved by the City. In September 2002, approximately two months prior to trial, Furniture Row and Imperial agreed to terminate the easement in the area of the western drive, in exchange for the creation of a new easement in the eastern area of the northern property line.
In support of its claim that the approved site plan does not require open access from the north property to the western drive, Imperial relies on the fact that its site plan did not expressly note the then existing easement for the benefit of the north property; the later extinguishment of that easement; and testimony from a City witness that Imperial's site plan meets all the requirements for a used car lot, even though it does not explicitly provide for open access by way of the western drive. However, the record indicates that the City's approval of the site plan was based, in part, on the presumption that the western drive continued to provide the same open access to the north property in 2001 that it had in 1983.
The City's deputy zoning enforcement officer, M. Joseph Bohlke, stated that in order for Imperial to be granted a certificate of occupancy, its site plan would need to be consistent with the Hardee's site plan. He further testified that the physical configuration of the property as shown in the Imperial site plan differed from that in the Hardee's site plan only in regard to post-1983 landscaping standards, and that the City's review of Imperial's site plan was only to assure compliance with the additional landscaping standards.
In fact the driveway in the eastern area of the northern property line, reflected in the 2001 site plan, was not reflected in the 1983 site plan. However, as previously noted, access in this area is not at issue on appeal.
Moreover, testimony from both Bohlke and Phillip Poorman, a City planning assistant, indicated that if Imperial's site plan had demonstrated the western drive would be somehow blocked or impeded, the plan would have been reviewed by additional departments, including traffic and emergency services, to be sure that it continued to meet all of the City's requirements, not merely those particular to Imperial's proposed use. Poorman further stated that, in light of the high traffic flow along Merle Hay Road, the City considered it necessary for adjoining properties along that road to have access agreements. This is consistent with the City's site plan ordinances, which condition approval of any site plan on the plan's conformance with a number of design regulations, including such entrances and exits upon adjacent streets and such internal traffic circulation patterns as will not unduly increase congestion on adjacent or surrounding public streets and in a manner which will conform to the proposed future circulation of traffic throughout the city and provide for adequate fire protection access.
Des Moines Mun. Code § 82-213(3). See also id. § 82-214.03 (setting forth additional guidelines for vehicle display lots).
Imperial complains that, given the fact its site plan did not expressly indicate the western drive was an access drive, the City should not be allowed to simply presume the western drive continued to provide open access to the north property. However, the City's presumption is supported by not only the 1983 Hardee's site plan and the 1984 Furniture Row site plan, but also the recorded easement over the western drive. Whether or not that easement was extinguished prior to trial, the fact remains that it existed at the time the Imperial site plan was approved. In addition, Imperial's site plan graphically, if not linguistically, depicts a drive that remains open and unobstructed up to and including an open and unobstructed area of the northern property line.
We conclude Imperial's site plan, as approved in 2001, indicates that the western drive provides unimpeded access to and from the north property. Accordingly, any action to block that drive, with a vehicle or by any other means, would not be in substantial compliance with the site plan, and is properly enjoined. If Imperial wishes to block off the drive, it must take the necessary steps to have its site plan amended. See id. § 82-217.