Last month, we posted a decision about nonconforming uses, White v. City of Elk River, No. A12-0681 (Minn. Dec. 4, 2013), and want to follow up by posting a good summary of the issues, as well as the amicus brief that was filed in the case in support of the property owner.
Start here ("Can Government Revoke Your Right to Continue an Existing Business?") by Luke Wake (also one of the counsel who filed this amici curiae brief). Luke's piece discusses the Minnesota Supreme Court's holding that the city could not revoke a campground's nonconforming use as penalty for alleged violations of the conditions of the conditional use permit. The court also held that a nonconforming use is an independent property right, not a mere privilege as a product of a CUP ordinance. Luke writes:
The case raised a question of fundamental importance in Minnesota—one that might impact any business or property owner in the state. At issue was the very right to continue operating an existing business without the threat of a zoning board imposing new and draconian permitting requirements.
We agree about the case being of fundamental importance. Land lawyers understand that a use that is perfectly legal one day may be subject to banishment or regulation the next, and that only an aggressive defense of property rights can save the day. Whether you call it "nonconforming use," "grandfathering," or "vested rights," the theory is the same: the government cannot simply write an existing lawful use out of existence, or subject it to onerous overregulation (often used as a de facto ban). This is especially important in this age where local governments seem to be on the hunt for things to ban or regulate. Luke continues:
Now, of course, government can impose many legitimate conditions on the issuance of a new building permit. Likewise a municipality could legitimately impose conditions on a license for a new business enterprise. But why should a long-standing business, which has been operating in compliance with preexisting zoning restrictions, have to obtain a special permit to continue lawfully operating?Both the piece and the brief are worth reading.
As NFIB and MVRA argued to the Supreme Court, the Constitution protects a business owners’ right to continue lawfully established operations without need of new permits. The only time the government may legitimately require an existing business to seek a permit would be if the business seeks to build something new, or to use the property in a more intensive manner. But if a business simply wants to enjoy the right to continue with business as usual, there is no legitimate reason to require them to continually ask the government for permission.