City of Des Moines v. the Estate of Richard L. Clark and All Known and Unknown Heirs, Richard L. Clark II, and Richard L. Clark, and Mark Ogden

• Court: Court of Appeals of Iowa
• Decided: November 12, 2015
• Docket: 14-1383
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1383 Filed November 12, 2015

CITY OF DES MOINES, Plaintiff-Appellee,

vs.

THE ESTATE OF RICHARD L. CLARK AND ALL KNOWN AND UNKNOWN HEIRS, RICHARD L. CLARK II, and RICHARD L. CLARK, Defendants,

And

MARK OGDEN, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.

A property owner appeals the district court’s decision finding he violated

the city zoning code. AFFIRMED.

Daniel L. Manning and Joel B. Templeman of Lillis, O’Malley, Olson,

Manning, Pose & Templeman, L.L.P., Des Moines, for appellant.

Thomas G. Fisher Jr. and Vicky Lynn Long Hill, Assistant City Attorneys,

Des Moines, for appellee.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ. 2

MULLINS, Judge.

In November 2013, the City of Des Moines filed a second amended

petition for an injunction against the Estate of Richard Clark and Mark Ogden,

asserting certain property owned by the defendants was in violation of the

municipal code. The City asked for an order enjoining the owners from continued

unlawful use of the property and directing the property owners to bring the

property into compliance with the municipal code. The matter was tried to the

bench on July 1, 2014, and the court granted the City’s petition, enjoining the

property owners from the unlawful use of the land in question not in compliance

with the municipal code, ordering the removal of vehicles not in compliance,

mandating the property be brought into compliance and the owners obtain a

certificate of occupancy within ninety days, and granting the City the ability to

seek court permission to take corrective action should the owners not act.

Ogden appeals the decision of the district court asserting the City was

equitably estopped or estopped by acquiescence from demanding he bring the

property into compliance with the zoning ordinances based on a site drawing

prepared by a city employee in 2003. Ogden also claims the court incorrectly

determined he unlawfully expanded his legal nonconforming use by storing

vehicles on the property of a neighboring mobile home park. He claims the

vehicles in the pictures submitted by the City show those vehicles in the mobile

home lot were not for sale but were simply being stored there.

We conclude Ogden did not preserve error on his claim that the City

should be equitably estopped or estopped by acquiescence. Both claims are 3

affirmative defenses. Markey v. Carney, 705 N.W.2d 13, 21 (Iowa 2005).

Neither claim was raised in Ogden’s answer, nor does it appear the claims were

raised at trial. The district court did not address either claim in its ruling, and

Ogden did not file a motion under Iowa Rule of Civil Procedure 1.904(2)

requesting the court to rule on the claims. Where the district court has not been

presented with an issue and ruled on it, we decline to address it on appeal. Lee

v. State, 815 N.W.2d 731, 739 (Iowa 2012) (“We recognize the fundamental

doctrine of appellate review that issues must be raised in the district court before

we may review them on appeal.”). Ogden’s assertion that his notice of appeal

preserved error for his claims is incorrect. See Thomas A. Mayes & Anuradha

Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on

Present Practice, 55 Drake L. Rev. 39, 48 (Fall 2006) (“However error is

preserved, it is not preserved by filing a notice of appeal. While this is a common

statement in briefs, it is erroneous, for the notice of appeal has nothing to do with

error preservation. In fact, the two concepts are mutually exclusive. . . . While a

timely notice of appeal may be necessary for the appellate courts to acquire

jurisdiction, it is not sufficient to preserve error.”).

As to Ogden’s second claim, the site map prepared by the City in 2003

that Ogden points to as his authority to continue his practices specifically states

vehicles may not be displayed or stored on the adjacent mobile home park

property. The only place vehicles could be displayed or stored according to the

map was within the boundaries of the auto sale property. Ogden admitted at trial

and on appeal he was storing vehicles on the mobile home park property. We 4

conclude the City satisfied its burden of proof to show Ogden unlawfully

expanded his nonconforming use of the property.

We therefore affirm the district court’s decision.

AFFIRMED.