               IN THE SUPREME COURT OF IOWA
                              No. 16–1080

                          Filed March 16, 2018


CITY OF DES MOINES, IOWA,

      Appellee,

vs.

MARK OGDEN,

      Appellant.


      On review from the Iowa Court of Appeals.

      Appeal from the Iowa District Court for Polk County, Robert B.

Hanson, Judge.



      The defendant seeks further review of a court of appeals decision

that affirmed the district court order enjoining him from continuing the

nonconforming use of his property as a mobile home park due to its

violation of current and past zoning ordinances. DECISION OF COURT

OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED
AND CASE REMANDED.



      James E. Nervig of Brick Gentry P.C., West Des Moines, for

appellant.



      Luke DeSmet, Assistant City Attorney, Des Moines, for appellee.



      Laura Rae Jontz and Jessica J. Taylor (until withdrawal) of Iowa

Legal Aid, Des Moines, for amici curiae.
                                          2

ZAGER, Justice.

        A property owner appealed the district court order enjoining him

from continuing the nonconforming use of his property as a mobile home

park.    The district court found the nonconforming use of the property

exceeded its authorized nonconforming use, and it was necessary to

cease operation of the nonconforming use for the safety of life or

property. The court of appeals affirmed the district court ruling. On our

de novo review, we conclude that the City of Des Moines failed to prove

that the property owner had exceeded its legal nonconforming use or that

it was necessary to enjoin the property owner from continued operation

of the mobile home park for the safety of life or property. We vacate the

decision of the court of appeals and reverse the judgment of the district

court enjoining Ogden from continuing his nonconforming use of the

property as a mobile home park.

        I. Background Facts and Proceedings.

        Mark Ogden owns the real estate located at 3140 Indianola Avenue

in Des Moines, Iowa.           Ogden operates a mobile home park at that

location known as Oak Hill Mobile Home Park (Oak Hill). The zoning of

the     property   is   partially   C-2   General     Retail    Highway-Oriented

Commercial District and partially R1-60 One Family Low Density

Residential District.     While the full history of the property is unclear,

there is evidence demonstrating the property was originally used as a

heating and furnace repair business around 1938.                 In approximately

1941, the property transitioned into Oak Hill Tourist Camp, which

provided    tourists    with    small   bedroom     suites     and   outhouses   to

accommodate their traveling needs.            There are no photographs of the

property prior to 1947 when the property was still operating as a tourist

camp, and there is little evidence documenting the changes in the
                                    3

property between 1947 and 1955. Between 1947 and 1955, the property

became Oak Hill Mobile Home Park.

      In 1953, the City of Des Moines (City) enacted new zoning

ordinances.   According to the zoning designations then in effect, the

trailer park was partially in the C-2 Commercial District and partially in

the R-2 Residence District. In 1955, the owner of Oak Hill at the time

applied for and was granted a certificate of occupancy from the City that

allowed for the operation of the mobile home park as a nonconforming

use. The 1955 certificate of occupancy indicates that the mobile home

park was a nonconforming use as to the R-2 zoning. The certificate of

occupancy does not declare that the mobile home park is otherwise out

of compliance with the zoning ordinances conjointly affecting it.

      The first aerial photograph on record of the property in use as a

mobile home park was taken in 1963. This photograph reveals thirty-

nine concrete pads with mobile homes situated on them in close

proximity to one another. The photograph also shows that some of the

homes had additional structures attached to them. There are a number

automobiles parked on or surrounding the U-shaped access road that

circles through Oak Hill and separates it from the neighboring homes.

This is the only photographic evidence in the record showing the

conditions of Oak Hill in 1963. More recent photographs of the property

reveal that Oak Hill has become more congested over the years as some

residents have added porches, decks, and more living space to their

mobile homes.

      The record reveals that the City has taken no action against Oak

Hill from the time the certificate of occupancy was issued in 1955 until

2014. However, in 2003 the City discovered that the previous owner of

Oak Hill was partially utilizing some portions of the mobile home park as
                                    4

an extension of his adjacent auto dealership.     Consequently, the City

issued a letter to the owner advising him that the 1955 certificate of

occupancy allowed him to operate the land as a mobile home park, but

he was not authorized to use the land as an extension of his auto

dealership.   The owner stopped operating the auto dealership on the

property, and the City took no further action regarding the use of the

property as a mobile home park at that time.       The City did not issue

another warning or citation of any kind about the use of the property as

a mobile home park until 2014.

      On August 4, 2014, SuAnn Donovan, the neighborhood inspection

zoning administrator, provided Ogden with a letter informing him that

Oak Hill “has numerous violations of municipal zoning codes that were in

place at the time the land was converted to a mobile home park and

must be brought into compliance with those codes.” Donovan explained,

“There were two controlling ordinances relating to mobile home parks in

effect at that time”: (1) “Chapter 39 that specifically regulated the

operations of mobile home parks” and (2) “Chapter 2A which regulated

zoning issues.” The City “reviewed the current status of the park as it

relates to the two ordinances to determine violations that currently exist

on the property.”

      Upon examination, Donovan informed Ogden that the City had

found the following violations of Chapter 2A of “the Municipal Code of the

City of Des Moines as it was in effect in 1955”: (1) failure to provide a

thirty-five foot setback from Park Avenue; (2) failure to provide a twelve-

foot setback from Indianola Road; (3) failure to provide a forty-foot

setback along the lot line running north from Park Avenue; (4) failure to

provide a fifteen-foot setback along the lot line running west from

Indianola Road; and (5) failure to supply 1200 square feet of lot area per
                                     5

mobile home. Additionally, the letter noted the following “violations of

Chapter 39, the Municipal Code as it was in effect in 1955”: (6) failure to

maintain a twenty-foot unobstructed driveway that was accessible to the

public and properly maintained, marked, lighted, and equipped with an

all-weather surface; (7) failure to maintain twelve feet of clearance

between trailers; (8) failure to provide a two-foot walkway between the

trailers to the public street; and (9) failure to provide fire extinguishers

that were in good working order for every twenty-five trailer spaces

located not further than 200 feet from each trailer space.          Finally,

Donovan noted,

      In 1962, pursuant to Chapter 57, as re-codified in Chapter
      39 of the Municipal Code no additions were to be
      constructed on trailers other tha[n] a porch or entry way
      with less than 11’ clearance from other additions or trailers.
      Many of the additions are in violation of this provision of the
      applicable ordinance.

The letter concluded by warning Ogden that the City could take legal

action to abate the aforementioned violations if he failed “to bring the

property into compliance or enter into a compliance plan within ten

days” of receiving the notice letter.    Ogden did nothing to establish a

compliance plan or bring the property into compliance.

      In October 2014, the City filed its amended petition in equity. The

City requested that the court issue an injunction ordering Ogden to

cease use of the property as a mobile home park in violation of the Des

Moines Municipal Code. Trial was conducted before the district court on

March 26, 2016. At trial, Jonathon Lund, the Des Moines Fire Marshal,

testified on behalf of the City. When asked about the fire dangers that

mobile home parks pose, Lund testified, “The construction of a mobile

home is inherently a little bit more dangerous in the sense that they

typically use smaller dimensional lumber.”      He explained that smaller
                                    6

dimensional lumber “can lead to rapid progression of fire.” Lund stated,

“[I]f you have properties in close proximity to each other, it creates an

exposure hazard for us which leads to more fires.”

      Lund also testified about the importance of fire access roads. He

explained that the City requires properties to maintain a twenty-foot-

wide fire access road, and he agreed that a ten-foot-wide fire access road

would make it more difficult for firefighters to do their jobs effectively.

Despite his testimony about the fire hazards of mobile home parks in

general, Lund clarified that the fire department had not inspected the

mobile home trailers at Oak Hill because they are considered single-

family dwellings.   Lund admitted, “I’m not aware of any outstanding

violations [at Oak Hill].”   This is the sum of the evidence presented

regarding the mobile home park being a risk to the safety of life and

property.

      Donovan testified about the history of the property and the nature

of the zoning violations at issue. She stated her belief that “the basic

issue is the location of the mobile homes are too close together to meet

either zoning requirements in ’55 or today,” but conceded that “the City

can’t impose a larger setback on a legal nonconforming” use.         When

asked how the City decides what zoning violations to enforce, Donovan

stated, “We are mostly complaint based. When we get a complaint, we go

out and investigate and determine if there’s a violation and proceed with

enforcement.” When asked if complaints were filed regarding Oak Hill,

Donovan responded, “Citizens have filed complaints.       The city council

actually directed the action to review this, and eventually we’re going to

do all of them in the city and make sure they’re in zoning compliance.”

Donovan did not expand on the number of complaints filed, the nature of

the complaints filed or who filed them, what the complaints concerned,
                                            7

or any additional information about complaints allegedly made about

Oak Hill. Ogden also testified about the history of the property and his

prior interactions with City employees regarding the alleged zoning

violations. 1

        In its ruling on the nonconforming use issues, the district court

found

        [a] discontinuance of the nonconforming use under the 1955
        Certificate of Occupancy is necessary for the safety of life or
        property. The 1963 aerial photographs demonstrate that
        Oak Hill was in violation of many of the contemporaneous
        zoning ordinances, but Oak Hill of 1963 is far less congested
        than Oak Hill of 2015. As detailed in the Court’s Findings of
        Fact, conditions of Oak Hill deteriorated markedly between
        1963 and 2006 (when the City began photographing Oak Hill
        at ground level). Now much of the open space visible in the
        1963 photos is filled with the detritus of life: vehicles,
        outdoor recreational equipment, garbage pins, makeshift
        gardens, fencing, and crudely constructed additions to the
        mobile homes. The U-shaped road that runs through Oak
        Hill is in poor repair, absent markings or well-defined
        borders. There is no evidence of adequate fire prevention or
        fighting equipment. The City stated in its original letter
        regarding this action that the zoning regulations in 1955
        were aimed at preserving the health and safety of Oak Hill
        and its occupants. The occupancy permit statute states that
        discontinuance of the permit is allowed if the safety of life or
        property is threatened. Oak Hill is congested and cluttered
        as to impede the ability of first responders to adequately
        address common urban dangers, such as fires and
        situations requiring police involvement.




        1The  district court excluded Ogden’s testimony about his prior interactions with
City employees. The City objected to this testimony on the grounds that Ogden failed to
disclose these previous interactions during discovery. Ogden did not appeal that
evidentiary ruling. In addition to Ogden’s testimony, Gloria Lang, a resident of Oak Hill,
testified that she had never interacted with the City regarding her mobile home. Lang
also stated that she would struggle to relocate if the mobile home ceased its operation.
The City objected to Lang’s testimony, claiming both that her testimony was irrelevant
to the zoning issue and that Ogden failed to disclose Lang as a witness until the day of
the trial. The district court sustained the objection and excluded her testimony
“because Ms. Lang was not disclosed as a witness until the morning of the trial and her
testimony was irrelevant to zoning issues.” The court of appeals affirmed this decision.
                                       8

The district court also noted that the current use of the property as a

mobile home park “has intensified beyond acceptable limitations”

because the conditions “pose a real threat in the event of an emergency.”

      Following the ruling, Ogden did not file a motion to enlarge or

amend the district court findings of fact or conclusions. However, Ogden

did file an appeal. On appeal, Ogden argued the district court erred by

finding both that the discontinuance of the nonconforming use was

necessary for the safety of life or property and that the changes to the

property were unlawful expansions of the existing nonconforming use.

Ogden further argued that equitable estoppel prevented the City from

obtaining an injunction and that the actions of the City amounted to an

unconstitutional regulatory taking. We transferred the case to the court

of appeals.

      In a divided opinion, the court of appeals found Ogden failed to

preserve his unconstitutional takings claim.       However, it affirmed the

district court order enjoining the continued nonconforming use of the

property as a mobile home park.            The majority concluded that the

current   status   of   the   mobile   home     park   exceeded    the   legal

nonconforming use as it existed in 1955 and that it posed a threat to the

safety of people or property at the mobile home park.             The dissent

disagreed, concluding the City had failed to prove either ground for the

issuance of the injunction regarding the legal nonconforming use. Ogden

sought further review, which we granted.

      II. Standard of Review.

      The standard of review for constitutional claims, including with

respect to takings, is de novo.” Brakke v. Iowa Dep’t of Nat. Res., 897

N.W.2d 522, 530 (Iowa 2017).       Because injunctions are equitable in

nature, our standard of review in this case is de novo. City of Okoboji v.
                                     9

Parks, 830 N.W.2d 300, 304 (Iowa 2013).        “ ‘Although the trial court’s

factual findings are not binding’ in an action seeking an injunction, ‘we

give weight to the court’s assessment of the credibility of the witnesses.’ ”

Id. (quoting Opat v. Ludeking, 666 N.W.2d 597, 603 (Iowa 2003)).         We

“review decisions on sanctions for violation of discovery for an abuse of

discretion.” Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 385

(Iowa 2012).    Likewise, we review evidentiary rulings for an abuse of

discretion.   State v. Olutunde, 878 N.W.2d 264, 266 (Iowa 2016).         “A

district court abuses its discretion when it exercises its discretion on

grounds clearly untenable or to an extent clearly unreasonable,” by

issuing a decision that “is not supported by substantial evidence” or one

that “is based on an erroneous application of the law.” State v. Hill, 878

N.W.2d 269, 272 (Iowa 2016).

      III. Analysis.

      Ogden presents a number of issues on appeal. Ogden first argues

the actions of the City to enjoin his use of the mobile home park amount

to an unconstitutional taking.     He appeals the finding of the district

court and court of appeals that it is necessary for Ogden to discontinue

his legal nonconforming use of the property as a mobile home park for

the safety of life and property. Similarly, Ogden argues the district court

and court of appeals erred by concluding the changes to the property

expanded his legal nonconforming use of the property beyond its

authorized nonconforming use.       He alleges the doctrine of equitable

estoppel bars the City from seeking to enjoin his use of the property as a

mobile home park. Finally, Ogden maintains the district court erred by

excluding the testimony of Gloria Lang. We address each of these issues

on appeal as necessary.
                                      10

      A. Land Use Regulations Under the Takings Clause.                 Ogden

claims that the district court ruling to enjoin his use of Oak Hill as a

mobile home park amounts to an unconstitutional regulatory taking

under the Iowa and Federal Constitutions.             However, it is clear that

Ogden failed to preserve error on this claim. Although Ogden discussed

the constitutionality of takings in his proposed rulings as background

information on the law of nonconforming use rights, he did not appear to

be arguing that the City’s actions were a regulatory taking. He also did

not plead a counterclaim or defense on the basis of a taking, nor did the

district court rule on any takings claims.

      [W]hen a party has presented an issue, claim, or legal theory
      and the district court has failed to rule on it, a rule 1.904(2)
      motion is proper means by which to preserve error and
      request a ruling from the district court.

Homan v. Branstad, 887 N.W.2d 153, 161 (Iowa 2016). Ogden did not

file a rule 1.904(2) motion to enlarge the findings of the district court so

that the district court could address his takings claim.         Therefore, he

waived his unconstitutional takings claim by failing to preserve it.
      B. Whether Ogden Has Lost His Legal Nonconforming Use.

Ogden   maintains    the   district   court   erred    both by    finding that

discontinuance of the nonconforming use as a mobile home park is

necessary for the safety of life or property and that Ogden has unlawfully

expanded his nonconforming use of the property beyond its authorized

nonconforming use. We will address each of these claims in conjunction

with our well-established law on legal nonconforming use.

      1. The law on nonconforming use.         A nonconforming use is one

“that lawfully existed prior to the time a zoning ordinance was enacted or

changed, and continues after the enactment of the ordinance even

though the use fails to comply with the restrictions of the ordinance.”
                                          11

City of Okoboji v. Okoboji Barz, Inc., 746 N.W.2d 56, 60 (Iowa 2008). This

lawfully existing prior use of the property creates a vested right in the

continuation of the nonconforming use once the ordinance takes effect

unless the nonconforming use is legally abandoned, enlarged, or

extended. Id. These limitations on the nonconforming use of property

are expressed within the Des Moines Municipal Code which states,

“Nothing    in   this    division    shall     prevent    the   continuance     of   a

nonconforming use as authorized, unless a discontinuance is necessary

for the safety of life or property.” Des Moines, Iowa, Municipal Code, div.

5, § 134-155(a) (2017). 2

       2. Discontinuance of nonconforming use for the safety of life or

property. In our de novo review, we cannot conclude that the City has

shown that the discontinuance of the nonconforming use under the 1955

certificate of occupancy is necessary for the safety of life or property. As

a preliminary matter, the party seeking permanent injunctive relief to

enforce a zoning ordinance must establish “(1) an invasion or threatened

invasion of a right; (2) that substantial injury or damages will result

unless the request for an injunction is granted; and (3) that there is no

adequate legal remedy available.”            City of Okoboji, 830 N.W.2d at 309
(quoting Sear v. Clayton Cty. Zoning Bd. of Adjustment, 590 N.W.2d 512,

515 (Iowa 1999)). The City has failed to meet this burden.

       Remarkably, the record is largely bereft of evidence demonstrating

the existence of a significant safety issue.             Although the fire marshal

testified about the fire hazards specific to all mobile homes in general, he

acknowledged that Oak Hill has not been cited for any fire safety code

        2Similarly, the Des Moines Municipal Code at the time the City issued the 1955

Certificate of Occupancy allows for a discontinuation of the nonconforming use as
“necessary for the safety of life or property.” Des Moines, Iowa, Zoning Ordinance, pt.
XX, § 2A-49 (1953).
                                      12

violations. The fire marshal also testified that the fire department has

never inspected the individual mobile homes at Oak Hill because they are

considered single family dwellings, and the fire department does not

inspect the individual mobile homes or mobile home parks in their

entirety. Finally, the fire marshal testified that the current standards for

fire access roads require a twenty-foot-wide access road, but he did not

offer any testimony stating that the road as it currently exists at Oak Hill

was dangerous.

      Additionally, the city zoning inspector testified that the City had

not cited Oak Hill for a zoning violation until she issued the August 5,

2014 letter of notice to Ogden about the violations. The record does not

demonstrate that the City took any prior actions to remedy the zoning

violations that it now claims justify the discontinuation of the legal

nonconforming use or the need for injunctive relief. The City has failed

to prove that the discontinuance of the nonconforming use under the

1955 certificate of occupancy is necessary for the safety of life or property

pursuant to the zoning ordinances.

      3. Nonconforming use defense.            We employ a burden-shifting

analysis to determine whether the property owner asserts a valid defense

claiming    that   the   challenged   zoning    violation   is   an   authorized

nonconforming use. City of Jewell Junction v. Cunningham, 439 N.W.2d

183, 186 (Iowa 1989). First, the zoning entity has the burden of proving

the existence of a current zoning violation. Id. If the zoning entity meets

its burden, the burden shifts to the property owner “to establish the

lawful and continued existence of the use” by a preponderance of the

evidence.    Id.   The burden then shifts back to the zoning entity to

establish “a violation of the ordinance by exceeding the established
                                    13

nonconforming use” if the property owner establishes a lawful preexisting

use. Id.

       4. Application of the burden-shifting analysis.   We next consider

whether the City has proven that Ogden has so substantially changed

the character and intensity of the mobile home park so as to have lost

his legal nonconforming use. The law provides property owners with a

certain degree of latitude in their nonconforming use, as they “may

change the original nonconforming use ‘if the changes are not

substantial and do not impact adversely on the neighborhood.’ ” City of

Okoboji, 746 N.W.2d at 60 (quoting Perkins v. Madison Cty. Livestock &

Fair Ass’n, 613 N.W.2d 264, 270 (Iowa 2000)). For example, we held that

the nonconforming use of a salvage and junkyard did not exceed its

authorized nonconforming use when the inventory of junk “steadily

increased” after the applicable zoning ordinance was adopted.      City of

Central City v. Knowlton, 265 N.W.2d 749, 753–54 (Iowa 1978).         We

based our decision in part on the Ohio Court of Appeals’ holding in

Worthington v. Everson, 226 N.E.2d 570, 571 (Ohio Ct. App. 1967), in

which that court held that the increased inventory of junk cars from 33

to over 400 on the same acreage did not constitute an illegal extension of

the authorized nonconforming use. Id. at 753. In contrast, we held that

property unlawfully exceeded its authorized nonconforming use when it

went from a rodeo arena to an enlarged figure-eight racetrack because

the use of the property as a racetrack was “substantially different from

the rodeo-type arena and the events held in it.” Perkins, 613 N.W.2d at

270.   In addition to the difference in use from the prior arena, the

racetrack arena involved events that “occurred more frequently,” “lasted

longer than the prior events,” and created more “noise, dust, and fumes”

than the rodeo-type arena and rodeo events. Id. at 270–71.
                                   14

      This is a case of first impression for our court as we have yet to

examine whether the intensification of a mobile home park due to the

addition of structures or the expansion of homes within the park

amounts to an illegal expansion of the authorized nonconforming use.

As we set forth earlier, we apply a burden-shifting framework to

determine whether a property owner has exceeded his or her authorized

nonconforming use. City of Jewell Junction, 439 N.W.2d at 186. Under

this framework, the burden is on the city to prove a zoning ordinance

violation, and the “party who asserts a nonconforming use has the

burden to establish the lawful and continued existence of the use.” Id. If

the “preexisting use has been established by a preponderance of the

evidence, the burden is on the city to prove a violation of the ordinance

by exceeding the established nonconforming use.” Id. “The key is that

the present use must not be ‘substantially or entirely different’ from the

original use.” Id. Hence, “not every change in particulars or details in

the method of a nonconforming use . . . constitutes an unauthorized

change in the use.”    Id. (quoting 8A Eugene McQuillin, The Law of

Municipal Corporations § 25.202, at 90–91 (1986) [hereinafter McQuillin]).

      We think three points are clear. First, a certificate of occupancy

was issued in 1955 for the mobile home park. Second, Ogden’s use of

the property violates several zoning ordinances that are in effect today

and that were also in effect in 1955. Third, a 1963 photograph of the

mobile home park shows many of the same zoning violations.

      The City offers two hypotheses for how this situation came about.

First, the City hypothesizes that the property complied with zoning

ordinances in 1955 but went out of compliance when the park

underwent substantial changes between 1955 and 1963, the date of the

photograph.   Alternatively, the City hypothesizes that even though the
                                    15

City issued a certificate of occupancy in 1955, the City believed at that

time the mobile home park was noncompliant with zoning and was not a

valid nonconforming use.

      We think both hypotheses are completely speculative. The more

logical conclusion from the record is that the City knew what it was

doing when it granted a certificate of occupancy in 1955 and then raised

no zoning issue for the ensuing fifty-nine years.     Likewise, the more

logical conclusion from this record is that the mobile home park was laid

out in 1955 the same way it was laid out in 1963 and every successive

year. In fact, the 1955 certificate of occupancy establishes “the lawful

and continued existence” of the nonconforming use of the property since

the zoning ordinances in 1955 prohibited the City from issuing the

certificate unless the proposed use of the property was lawful. Id.

      Consequently, our disposition of this issue hinges on whether the

City has met its burden to prove that the zoning violations at Oak Hill

have exceeded the nonconforming use established by the 1955 certificate

of occupancy.    The City argues Ogden has exceeded the established

nonconforming use of the property because the use of the mobile home

park has intensified in terms of the numbers and location of structures

attached to the mobile homes. The district court—and subsequently, the

court of appeals—agreed, noting the congestion on the property had

increased due to “the detritus of life: vehicles, outdoor recreational

equipment, garbage bins, makeshift gardens, fencing, and crudely

constructed additions to the mobile homes.” We disagree.

      “[I]ntensification 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.”   Id. (quoting Kent Cty. Planning Inspector v.

Abel, 228 A.2d 247, 252 (Md. 1967)). The City fails to present evidence
                                     16

in this case to demonstrate that the zoning violations at Oak Hill have

been expanded to the point where the established nonconforming use is

“ ‘substantially or entirely different’ from the original use.” Id. The City

acknowledges that Oak Hill has not changed in size or in its form of use

as a mobile home park. The number and location of the mobile homes is

roughly the same as it was when Oak Hill was first photographed in

1963.     In fact, there are actually fewer mobile homes on the property

than there were in 1963.

        Further, the additions to the structures of the mobile homes, as

well as the “detritus of life” the district court noted, have not

substantially changed the nature and character of Ogden’s use of the

property as a mobile home park.       Rather, this steady increase in the

additions to the mobile home structures and other objects found on the

property represents a marginal change that falls within the degree of

latitude that the law affords to property owners in their nonconforming

use.    As we have previously held, “not every change in particulars or

details in the method of a nonconforming use . . . constitutes an

unauthorized change in the use.” Id. (quoting 8A McQuillin § 25.202, at

90–91).

        While we are aware that other jurisdictions have held that

replacing existing mobile homes with larger mobile homes results is an

unlawful expansion of a nonconforming use, those cases are factually

different from the material facts in this case. See, e.g., Wiltzius v. Zoning

Bd. of Appeals, 940 A.2d 892, 910 (Conn. App. Ct. 2008); Kosciusko Cty.

Bd. of Zoning Appeals v. Smith, 724 N.E.2d 279, 281 (Ind. Ct. App. 2000).

In those cases, the local zoning officers and regulations treated each

mobile home within the mobile home park as a separate structure with

separate compliance issues, individually examining the expansion of
                                    17

each mobile home at issue to determine whether it retained its

nonconforming use.     See Wiltzius, 940 A.2d at 909–10; Kosciusko Cty.

Bd. of Zoning Appeals, 724 N.E.2d at 281. In contrast, throughout these

proceedings, the City has argued that Oak Hill in its entirety as a mobile

home park has exceeded its nonconforming use and does not distinguish

between the mobile home park in its entirety and each individual mobile

home for enforcement purposes.

        Ultimately, Oak Hill is being used as a mobile home park in a

manner that is 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. City of Jewell Junction,

439 N.W.2d at 186. Therefore, on our de novo review, we conclude that

the City failed to prove that the nature or character of the mobile home

park had so substantially changed or intensified to warrant the

discontinuation of the legal nonconforming use as a mobile home park.

Accordingly, we vacate the decision of the court of appeals and reverse

the judgment of the district court on this issue.

        C. Ogden’s Additional Claims. Based on our decisions set forth

above, we need not address Ogden’s remaining claims.          These claims

include whether the doctrine of equitable estoppel barred the City from

seeking to enjoin his nonconforming use of the property and whether the

district court abused its discretion by excluding the testimony of Gloria

Lang.

        IV. Conclusion.

        For the foregoing reasons, we conclude 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. We therefore vacate the

decision of the court of appeals, reverse the judgment of the district
                                  18

court, and remand the case to the district court for an order dismissing

the case.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.
