IN THE SUPREME COURT OF IOWA 

No. 65 / 04-1554 

Filed May 26, 2006 

CITY OF OKOBOJI, IOWA, 

 Appellant, 

vs. 

OKOBOJI BARZ, INC., d/b/a 

OKOBOJI BOATS and LEO PARKS, JR., 

 Appellees. 

Appeal from the Iowa District Court for Dickinson County, John P. 

Duffy, Judge. 

 The city appeals an adverse judgment denying its request for an 

injunction to enjoin a bar from operating within the city limits. REVERSED 

AND CASE REMANDED WITH DIRECTIONS.

Michael J. Chozen of Chozen & Saunders, Spirit Lake, for appellant. 

Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C., 

Des Moines, and Phil C. Redenbaugh of Phil C. Redenbaugh, P.C., Storm 

Lake, for appellees. 
2

WIGGINS, Justice. 

In this appeal, we must decide whether the proposed operation of a 

bar on lakefront property constitutes an unlawful expansion of a 

nonconforming use under a city’s zoning ordinance and a violation of the 

special use permits granted by the board of adjustment. The district court 

determined the proposed use of the property for a bar did not violate the 

city zoning ordinance or the special use permits. Because we disagree with 

the district court’s determination, we reverse the judgment of the district 

court and remand the case for the court to enter a permanent injunction 

enjoining the owner and his corporation from using the property as a bar. 

I. Background Facts and Proceedings. 

The property in question in this case is located on the lakeshore of 

Smith’s Bay on West Lake Okoboji. A marina has been located on the 

property since the 1890’s. Until the mid-1970’s, the property was operated 

as two separate marinas with different owners. One property was known as 

the Cove and the other as Okoboji Boats. The surrounding neighborhood is 

primarily residential, with some commercial activity. 

In 1972, the City of Okoboji (City) enacted a zoning ordinance. Under 

the ordinance, the marinas were zoned lakeshore residential. Lakeshore 

residential permits single-family homes and prohibits commercial uses. 

Okoboji Zoning Ordinance art. VII, § 2(A)(1) (1995) (originally codified in 

1972). Accordingly, the Cove and Okoboji Boats became nonconforming 

uses. The minutes from the Okoboji planning and zoning commission 

meeting where the commission discussed the ordinance reflect the 

commission’s 

suggest[ion] that these [nonconforming uses] be given a 

perpetual special permit to continue their respective 

businesses regardless of any type of disaster that may destroy 

the entire operation [contrary to a provision in the ordinance 
3

prohibiting rebuilding if such a use is damaged more than fifty 

percent of its replacement value. The commission noted it] 

should be stipulated, however, that the permit is limited to the 

specific operation or business for which it was originally 

intended. 

In 1973, the owner of Okoboji Boats filed an application for a special 

use permit stating: 

We request that the provision of Ordinance No. 63 stating that 

if a non-conforming business is destroyed beyond 50% of 

replaceable value, the business may not be rebuilt, be waived, 

as pertains to the business known as “Okoboji Boats.” The 

business being a sales, service, and storage facility for boats. 

The Okoboji board of adjustment granted the permit as requested. 

Around the same time, the owner of the Cove filed an application for a 

special use permit. The application stated: 

I request that the provisions of Art. IV, Sec. 4, par. B be waived 

so that a non-conforming use of a building destroyed or 

damaged more than 50% of its then replacement value could 

be restored; also I request that the provisions of Art. IV, Sect. 4 

which states that no building or land devoted to a use not 

permitted by this ordinance in a residential district in which 

such building or land is located, except when required by law, 

shall be enlarged, extended, constructed, reconstructed, 

substituted or structurally altered, unless the use thereof is 

changed to a use permitted in the district in which such 

building, structure or premises is located, be also waived. The 

Cove is such a business involved in sales, rental, service and 

storage of boats, snowmobiles and related items. 

The board granted the permit specifying in part 

[t]hat all objections be overruled and the permit application be 

approved subject to the following restrictions: That the 

proposed building be utilized for only boat sales, service, 

storage facilities, and related various business, and further 

provided that the proposed building be no higher than specified 

in the attached site plan, which is 15' above street grade, 

adequate parking as defined in Ord. 63 and 10' side yards. 

In 1975, the two properties began operating as a single marina known 

as Okoboji Boats. The hours of operation were typically 8 a.m. to 5 p.m., 

with the gas dock sometimes operating until 8 p.m. Around this time, the 
4

City issued a building permit to the marina for some expansion and 

remodeling. In addition, the marina eventually began selling beer intended 

for consumption off the premises as well as soda, snack foods, and 

microwavable sandwiches. The marina also expanded its inventory of 

boating equipment, apparel, and accessories. 

In January 2001, Leo Parks, Jr. purchased Okoboji Boats. Parks 

leased a portion of the marina during that summer to an individual who 

operated a business that included the sale of carryout broasted chicken. 

The broasted chicken operation brought a myriad of complaints from the 

neighbors. With the support of numerous property owners in the 

neighborhood, the City filed a petition for declaratory judgment and 

injunctive relief, claiming the operation of the chicken business was 

contrary to the zoning ordinance. The court denied the City’s request for a 

temporary injunction. The City dismissed the case. The chicken business 

eventually closed. 

In September 2003, a corporation controlled by Parks, Okoboji Barz, 

Inc., leased the marina property. In October, Parks’ corporation applied for 

an on-premises class C commercial liquor license for the marina. This 

license allows the licensee to sell liquors, wine, and beer by the drink for 

consumption on the premises. Iowa Code § 123.30(3)(c) (2003). Parks’ 

proposed operation of a bar contemplates serving alcohol inside and outside 

of both buildings on the premises, year-round and every day of the week. 

Parks contends a bar “fills the piece of the puzzle to make a modern day 

marina complete.” 

Parks intends to operate a bar at this marina under the same 

business model he is running at a different marina he owns. At the other 

marina, Parks operates a tiki bar known as the Barefoot Bar. The revenue 
5

from the Barefoot Bar contributes approximately one and a half percent of 

the marina’s gross sales. The Barefoot Bar is not intended to be a late night 

bar, but rather a “lakeside sunny day bar.” It is usually open to 10:30 p.m., 

but on some occasions it remains open until midnight. The bar’s activities 

include karaoke, live music, hog roasting, and monthly full moon parties. 

The City denied Okoboji Barz, Inc.’s application for a liquor license on 

the grounds the “operation of a tavern/restaurant on premises represents a 

substantial change in the nature and character of the use permitted under 

the special use permit.” 

In November, the City filed a petition against Okoboji Barz, Inc., 

d/b/a Okoboji Boats, and Parks for declaratory judgment and injunctive 

relief. The petition was filed in light of Okoboji Barz, Inc.’s appeal to the 

alcoholic beverages division of the Iowa department of commerce from the 

City’s denial of its application for a liquor license. The City sought a 

temporary and permanent injunction against the operation of a tavern or 

bar on the marina property as such operation constituted an unlawful 

expansion of a nonconforming use, as well as rulings that such operation 

violated conditions of a special use permit, allowing the board of adjustment 

to revoke the permit. The district court issued a ruling denying the City’s 

requested relief. The City appeals. 

 II. Issues. 

 One issue raised on appeal by the City is whether the district court 

erred when it ruled that the operation of a bar on the marina property does 

not violate the City’s zoning ordinance and the special use permits issued 

by the board of adjustment. The City also asks us to decide if the board of 

adjustment may revoke one of the special use permits. 
6

 III. Scope of Review. 

 The district court tried the City’s petition for declaratory judgment 

and injunctive relief as an equity action. Therefore, our review is de novo. 

Perkins v. Madison County Livestock & Fair Ass’n, 613 N.W.2d 264, 

267 (Iowa 2000). Under this review, we give weight to the fact findings of 

the district court, especially as to the credibility of witnesses, but we are not 

bound by them. Id. 

 IV. Analysis. 

A. Did the district court err when it ruled that the operation of a bar on 

the Okoboji Boats property does not violate the City’s zoning 

ordinance and the special use permits issued by the board of 

adjustment? 

 To decide this appeal, we must consider the interpretation and 

application of the Okoboji zoning ordinance. “In interpreting ordinances it 

is appropriate to apply the general rules of construction for statutes.” 

Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d 541, 543 (Iowa 

1996). “We resort to ‘the rules of statutory construction only when the 

terms of [a] statute are ambiguous.’ ” State v. Wiederien, 709 N.W.2d 538, 

541 (Iowa 2006) (alteration in original). Ambiguity exists if reasonable 

persons can disagree on the meaning of a statute. Id. An ambiguity may 

arise from the meaning of particular words or from the general scope and 

meaning of a statute in its totality. Id. 

 We have stated: 

The goal of statutory construction is to determine legislative 

intent. We determine legislative intent from the words chosen 

by the legislature, not what it should or might have said. 

Absent a statutory definition or an established meaning in the 

law, words in the statute are given their ordinary and common 

meaning by considering the context within which they are 

used. Under the guise of construction, an interpreting body 

may not extend, enlarge or otherwise change the meaning of a 

statute. 
7

Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004) 

(citations omitted). Zoning restrictions are construed strictly to favor the 

free use of property and will not be extended by implication or 

interpretation. Ernst v. Johnson County, 522 N.W.2d 599, 602 (Iowa 1994). 

The assessment of an ordinance requires consideration in its entirety so 

that the ordinance may be given its natural and intended meaning. Kordick 

Plumbing & Heating Co. v. Sarcone, 190 N.W.2d 115, 117 (Iowa 1971). 

 When the City enacted its zoning ordinance in 1972, it zoned the 

marina properties in the L-R Lakeshore Residential District. This district 

only allows single-family dwellings on each lot or building site. Okoboji 

Zoning Ordinance art. VII, § 2(A)(1). After the City enacted its zoning 

ordinance, the marina properties thus became nonconforming uses. See

Perkins, 613 N.W.2d at 270 (stating a nonconforming use is one lawfully in 

existence when a zoning restriction became effective and has been permitted 

to continue to exist). As to nonconforming uses, the City’s zoning ordinance 

provides: 

Within the districts established by this Ordinance or by 

amendments which may later be adopted, there exist lots, 

structures, buildings and uses which were lawful before this 

ordinance was effective or amended, but which would be 

prohibited, regulated or restricted under the provisions of this 

Ordinance or future amendment, the intent of this Ordinance 

is to permit these nonconformities to continue until they are 

removed, but not to encourage their survival. It is further the 

intent of this Ordinance that nonconformities shall not be 

enlarged upon, expanded or extended, nor be used as grounds 

for adding other structures or uses prohibited elsewhere in the 

same district. 

Okoboji Zoning Ordinance art. IV, § 3. 

“A party who asserts a nonconforming use has the 

burden to establish the lawful and continued existence of the 

use, and once the preexisting use has been established by a 

preponderance of the evidence, the burden is on the city to 
8

prove a violation of the ordinance by exceeding the established 

nonconforming use.” 

City of Jewell Junction v. Cunningham, 439 N.W.2d 183, 186 (Iowa 1989). In 

evaluating whether changes in such nonconforming uses are permissible, 

we have stated: 

A property owner may lose the protection of a 

nonconforming-use status when the property owner exceeds 

the established nonconforming use. Thus, “[e]nlargements or 

extensions of non-conforming uses are not allowed.” This 

court has explained the rationale underlying this principle as 

follows: “The prohibition against expanding or enlarging a nonconforming use defends against the growth of a pre-existing 

aggravation. That pre-existing aggravation, the nonconforming use, survives as a matter of grace. The public is 

not required to expand upon that grace to its increasing 

aggravation.” Landowners are given some latitude, however, 

and may change the original nonconforming use “if the 

changes are not substantial and do not impact adversely on 

the neighborhood.” 

Perkins, 613 N.W.2d at 270 (alteration in original) (citations omitted). 

Reasonable and normal accessory uses are usually permitted in connection 

with nonconforming uses. 8A Eugene McQuillin, The Law of Municipal 

Corporations § 25.209 (3d ed. rev. 2003). The use made of the land at the 

time the ordinance became effective is the standard we use to determine 

whether there is an unlawful enlargement of a nonconforming use. City of 

Cent. City v. Knowlton, 265 N.W.2d 749, 754 (Iowa 1978). 

We must also consider the uses allowed under the special use permits 

to determine whether Parks’ proposed bar is an allowable use. A special 

use permit “allows property to be put to a purpose which the zoning 

ordinance conditionally allows.” Buchholz v. Bd. of Adjustment of Bremer 

County, 199 N.W.2d 73, 75 (Iowa 1972); see also Iowa Code § 414.7 

(allowing the board of adjustment to make special exceptions to 

ordinances). 
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Prior to the issuance of the special use permits, the owners of the two 

properties operated each property as a separate marina. The marinas did 

not sell food or alcoholic beverages. Although the special use permit issued 

to the old Okoboji Boats marina waived the provision of the zoning 

ordinance which would not allow reconstruction if the business was 

destroyed beyond fifty percent of its replacement value, the permit did not 

expand the existing nonconforming use. The special use permit only 

allowed the owner to operate the business on the property as a sales, 

service, and storage facility for boats. 

The special use permit issued for the old Cove marina not only waived 

the reconstruction restriction, but it also allowed the owner to build on the 

property with certain restrictions. The Cove’s special use permit did not 

expand the property’s existing nonconforming use. By its terms, the special 

use permit stated “the proposed building be utilized for only boat sales, 

service, storage facilities, and related various business.” The use of the 

word “business” in the permit refers to activity directed towards the sale, 

service, and storage of boats. See Webster’s Third New International 

Dictionary 302 (unabr. ed. 2002) (defining “business” as “activity directed 

toward some end”). This definition is consistent with the then owner’s 

application for the special use permit that stated “[t]he Cove is such a 

business involved in sales, rental, service and storage of boats, snowmobiles 

and related items.” 

 Thus, the special use permits issued by the board of adjustment in 

1973 did not expand the uses allowed by the property owners under the 

zoning ordinance’s nonconforming use provisions. 

 It is uncontested that the prior marina owners expanded the 

operation of the marina to include the sale of beer intended for off-premises 
10

consumption, soda, snack foods, microwavable sandwiches, and boating 

equipment and accessories. These items, however, are related to the sales 

and service of boats because boat owners use these items when they are on 

their boats. The prior owners did not use the property as a bar for onpremises consumption of alcoholic beverages. The prior owners did not 

have live entertainment, karaoke, hog roasts, or full moon parties. The 

prior owners only operated the marina from 8 a.m. to 5 p.m., with a gas 

pump attendant on duty until 8 p.m. 

 Parks acknowledges the proposed bar at Okoboji Boats would be 

similar in operation to the bar at his other marina. This means the Okoboji 

Boats marina would be open longer hours than under the prior owners and 

host activities such as karaoke, live music, hog roasting, and monthly full 

moon parties. Such activities change the nature and character of the 

nonconforming use. Accordingly, we cannot consider a full-fledged bar to 

be merely an accessory use to the operation of a marina. Instead, the 

operation of a bar is a change in use that is substantially different from the 

use the marina properties had at the time of the adoption of the zoning 

ordinance. Thus, the proposed bar constitutes an unlawful expansion of a 

prior nonconforming use. See Perkins, 613 N.W.2d at 270-71 (finding an 

enlarged racetrack and the figure-eight racing for which it was used was 

substantially different from the previous rodeo-type arena and the events 

held in it, in view of the new racetrack’s size, character, form, and different 

neighborhood effect, causing it “to lose the protection of the nonconforming 

use provisions of the ordinance”); Waukesha County v. Pewaukee Marina, 

Inc., 522 N.W.2d 536, 540 & n.3 (Wis. Ct. App. 1994) (finding a marina 

owner’s addition of a retail store and place for lounging and entertainment 

as well as sale of boats, boat lifts, and piers resulted in a change of the prior 
11

nonconforming use consisting of a dry-docking and wet-docking facility with 

fuel and bait services; the court rejected the notion of “once a marina, 

always a marina, even though marina business itself is transformed”). 

 Therefore, the district court should have granted the City’s request for 

a permanent injunction enjoining Okoboji Barz, Inc., d/b/a Okoboji Boats, 

and Parks from operating the proposed bar on the premises. 

 B. May the board of adjustment revoke one of the special use permits? 

 The City’s zoning ordinance provides: 

The special permit issued may include time limits, and other 

conditions or safeguards deemed necessary or appropriate by 

the Board [of Adjustment]. Violations of such conditions and 

safeguards shall be deemed a violation of this Ordinance and 

punishable under the provisions of this Ordinance. In 

addition, the special permit in connection with such violation 

shall be subject to revocation by the Board. 

Okoboji Zoning Ordinance art. XI, § 6(5). The legislature granted the board 

of adjustment jurisdiction over special use permits, not the city council. 

Iowa Code §§ 414.7, 414.12; see also Holland v. City Council of Decorah, 662 

N.W.2d 681, 688 (Iowa 2003) (stating “[t]o the extent the council has 

claimed authority to grant the fill permit in this case, it has [unlawfully] 

diminished the jurisdiction of the board of adjustment”). 

 As of the date of trial, the board of adjustment had made no 

determination whether to revoke the special use permit granted to the old 

Cove property. Until the board takes action under the City’s zoning 

ordinance, there is no justiciable controversy. See Citizens for Responsible 

Choices v. City of Shenandoah, 686 N.W.2d 470, 474 (Iowa 2004) (finding for 

purposes of a declaratory judgment there was no justiciable controversy 

prior to a final decision of other governing bodies involved in the case). 

Therefore, we will not address this issue on appeal. 
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V. Disposition. 

 Because the proposed use of the property as a bar is an unlawful 

expansion of a prior nonconforming use under the zoning ordinance and the 

special use permits granted by the board of adjustment, Parks’ proposal to 

use the premises as such is illegal. Accordingly, the district court should 

have granted the City’s request for a permanent injunction enjoining 

Okoboji Barz, Inc., d/b/a Okoboji Boats, and Parks from operating a bar on 

the premises. Therefore, we reverse the judgment of the district court and 

remand the case for the court to enter a permanent injunction consistent 

with this opinion. 

REVERSED AND CASE REMANDED WITH DIRECTIONS.