A key win for property rights today in the Minnesota Supreme Court's decision in White v. City of Elk River, No. A12-0681 (Dec. 4, 2013). In that case, the court concluded that a municipality 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.
The campground had been operating since 1973, well before the city adopted zoning. Seven years later, the city adopted an ordinance which banned campgrounds. Three years later, the city amended the ordinance to allow campgrounds as a conditional use (which required a CUP). But later, the city amended the ordinance yet again, to bar campgrounds entirely. During the time that a CUP was required, the campground got one from the city subject to certain conditions, one of which was that campers could not live at the campground permanently, and that all vehicles must have wheels. Years later, the city discovered that several campers pretty much lived at the park and that several RV's did not have wheels. It terminated the CUP as penalty for the campground's violations of the condition.
The campground sued the city, asserting that it did not need to get a CUP to continue a use that preexisted the city's zoning ordinance, and that the city's termination of the CUP as a penalty for violating its conditions was arbitrary. The trial court agreed, but the Court of Appeals held in favor of the city.
The Supreme Court concluded that the campground, as a use predating the zoning ordinance, was a valid nonconforming use, entitled to continue even though prohibited by the new ordinance. It accepted the campground's argument that it had nonconforming use rights that were not affected by its voluntary compliance with the ordinance and getting a CUP. "We conclude that a landowner does not surrender the right to continue a nonconforming use by obtaining a conditional-use permit unless the landowner validly waives that right." Slip op. at 12. In other words, the campground owner's rights were not dependent on the zoning ordinance, and even if it did not get a CUP, it could have continued to operate.
The court concluded the campground did not waive its rights merely by getting a CUP:
Under our established waiver jurisprudence, Wapiti Park’s application for the conditional-use permit, standing alone, cannot constitute a valid waiver. Although Wapiti Park knew of its nonconforming-use rights as a campground in 1984 when it applied for the conditional-use permit, the City has not proved that Wapiti Park intended to waive those rights. And nothing in the record evinces such an intent or even creates a genuine issue of fact that, by applying for and accepting the conditional-use permit, Wapiti Park subordinated its rights to the City’s zoning regime. Thus, the conditional-use permit did not itself alter the campground’s status as a nonconforming use and did not govern that use from 1980 to the present—including when the City revoked the conditional-use permit in 2010.
Id. at 13 (footnote omitted).
The court also concluded that the city did not have the authority to terminate the nonconforming use by revoking the CUP, even if the basis of the revocation was the permittee's violation of the conditions. There are only four ways to terminate under Minnesota law: (1) taking the property by eminent domain; (2) discontinuation for more than a year; (3) damage greater than 50%; or (4) a judicial determination of nuisance. Or the owner and the city can agree to terminate. None of those applied, and because the state enabling statutes do not allow termination by revocation of a CUP, the court concluded the city had no power to do so:
Had the Legislature intended the revocation of a conditional-use permit to be a permissible method by which a municipality could terminate a nonconforming use, it easily could have said so. Recognizing this newly proposed mode of terminating a nonconforming use under the guise of statutory construction would impermissibly add language to the governing statute that does not exist.
Id. at 15-16. Cities can temporarily enjoin nonconforming uses if they violate regulations designed to protect health, welfare, or safety, but that power does not extend to the permanent shut-down.
Overall, a good decision for property rights.
White v. City of Elk River, No. A12-0681 (Minn. Dec. 4, 2013)
