Adjacent property owners brought action against operator of a park-for-hire business seeking to enjoin operation of business. City intervened and also sought injunctive relief. The trial court granted property owners and city summary judgment. Business operator appealed.
The Court of Appeals held that:
- Operator was not required to exhaust administrative remedies with city in order to defend action brought against it by neighboring property owners, and
- Operator’s use of parking lot property for an outdoor horse show did not act to supersede its nonconforming use of property for park-for-hire business.
Operator of park-for-hire business was not required to exhaust administrative remedies with the city in order to defend action brought against it by neighboring property owners seeking to enjoin operation of business based on city code violation. Although city intervened in the action, operator was not seeking to circumvent the review process by instituting a collateral attack on the city’s decision that its nonconforming use of property for a park-for-hire business had been superseded, but rather operator chose to resume its parking business after the city informed it of the decision regarding nonconforming use, thereby assuming the risk of the city would pursue a penalty for violation of the city code.
Park-for-hire business operator’s use of parking lot property for an outdoor horse show did not act to supersede its nonconforming use of property for park-for-hire business pursuant to city code provision that allowed for a nonconforming use to be superseded by a permitted use. Use of property for outdoor show was a use that was only permitted or allowed by a special administrative permit, and because no such permit was issued, operator’s use could not act to supersede the nonconforming use.