Non-conforming use lawful only so long as it complies with original permit conditions

by Kaitlin Heinen

Lorraine M. White Trust, et al. v. City of Elk River
(Minnesota Court of Appeals, October 28, 2012)

The Lorraine M. White Trust owns the Wapiti Park Campgrounds, which is operated on 52 acres in the City of Elk River. In 1973 when the park opened, no zoning ordinance governed the use of the land. In 1983, the City made campgrounds a conditionally permitted use in the zoning district where Wapiti Park was located. In 1984, the City granted Wapiti Park a conditional use permit with 9 conditions. The City removed campgrounds as a conditionally permitted use in Wapiti Park’s zoning district in 1988, so Wapiti Park became a legal, nonconforming use instead. The one building on Wapiti Park property contained an office, laundry facilities, a restaurant, shower facilities, and served as a gathering place for campers. It was destroyed by a fire in 1999. Before attempting to rebuild it in 2000, the City required Wapiti Park to apply for an interim-use permit because the building was an accessory to the nonconforming campground, which did not change the terms of the primary conditional use permit. The City granted the interim-use permit, with the condition that it be valid for 10 years. When a building permit was granted afterwards, Wapiti Park rebuilt the building.

The interim-use permit expired in 2010, so Wapiti Park applied for a new one to continue using the building. The City inspected the campground and found that some people use the campground as permanent housing, even during the winter. In fact, some of the campsites included insulation, sheds, and porches. Several vehicles also had alterations such as piping connecting the vehicle to the sanitation system. The City concluded that this permanent use of the campground violated the conditions of the 1984 conditional use permit. The City gave Wapiti Park several months to comply with the 1984 conditions, but it failed to do so. As a result, the City proposed to deny the interim-use permit renewal and to revoke the 1984 conditional use permit. After three hearings, the City passed a resolution that revoked the permit in July of 2011 unless conditions were satisfied. After failing to meet this resolution’s conditions, the revocation of the 1984 conditional use permit became effective in December of 2011. Then Wapiti Park sued the City. The district court found the campground was a legal, nonconforming use, and that the city could not revoke the 1984 conditional permit to eliminate this use, and Wapiti Park was entitled to rebuild the 2000 building without a permit from the City.  The City then appealed to the Minnesota Court of Appeals.

Minn. Stat. Section 462.537 governs nonconforming uses of property and states in part: “Except as otherwise provided by law, any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion . . . ” The City alleged that because Wapiti Park was no longer in compliance with the 1984 conditional use permit in 2010, the use was no longer “lawful” under Section 462.537, The Minnesota Court of Appeals agreed. The Court interpreted this statute to protect a nonconforming use if it was lawful at the time it became nonconforming. At the time of the 1988 amendment to the zoning ordinance, the use of the property as a campground was only lawful because of the 1984 conditional use permit. Thus Wapiti Park is only entitled to Section 462.537’s protections if it remained in compliance with the permit that made it lawful. The Minnesota Court of Appeals concluded that Wapiti Park’s conditional use permit was still in effect because a conditional use permit does not cease to exist when the use becomes nonconforming. Instead the nonconforming use is defined by the conditions in the conditional use permit, and any use outside of these permit parameters may be considered an unlawful expansion of the nonconforming use. Conditional-use permits are perpetual, and “shall remain in effect as long as the conditions agreed upon are observed.”

The Minnesota Court of Appeals concluded that the 1984 conditional-use permit was still in effect even after the campground became nonconforming, and the City properly revoked the permit when it determined that the campground was no longer in compliance with the permit conditions. The 1984 conditional-use permit did not expire when Wapiti Park became a nonconforming use in 1988. Rather, the permit remained in effect, and the campground’s nonconforming use of the property was only lawful so long as it complied with the permit conditions. And the City was entitled to revoke the 1984 conditional-use permit when Wapiti Park continued to violate the conditions of the 1984 conditional-use permit. Thus the district court ruling was reversed.

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