Issuance of conditional use permit for nonconforming use does not usurp landowner’s nonconforming use rights

by Rachel Greifenkamp

Lorraine White, Trustee v. City of Elk River

(Minnesota Supreme Court, December 4, 2013)

Wapiti Park campground in the City of Elk River, Minnesota began operating in 1973, seven years prior to the City enacting a zoning ordinance that, at first, did not permit campgrounds in that location, then permitted them as conditional uses, then even later again removed campgrounds as either conditional or permitted uses. Wapiti Park applied for and was granted a conditional use permit in 1984 (during the period of time when they were allowed as conditional uses) even though it could have continued operating as a nonconforming use.  When Wapiti Park later violated the conditions of the conditional use permit the city revoked the permit and asserted that Wapiti Park was no longer authorized to operate the campground.  Wapiti Park sued the city.  The district court found in favor of Wapiti Park but the Court of Appeals reversed.  Wapiti Park appealed to the Minnesota Supreme Court.

One question addressed in this case is whether a landowner of a nonconforming use who voluntarily complies with a later-enacted zoning ordinance relinquishes the nonconforming-use status and the right to operate under that status in the future. This issue has been answered in opposite ways in other jurisdictions. The Minnesota Supreme Court concluded that a landowner does not surrender the right to continue a nonconforming use by obtaining a conditional use permit unless the landowner affirmatively waives the right to be treated as a nonconforming use.  Waiving a right in Minnesota requires knowledge of the right and an intent to waive the right. In this case, the City of Elk River had the burden of proving that Wapiti Park had both knowledge of their right to remain a nonconforming use and intended to waive the right when they applied for the conditional use permit.  Although Wapiti Park knew of its nonconforming use rights as a campground in 1984 when it applied for a conditional use permit, the city produced nothing for the record to indicate that Wapiti Park intended to waive or subordinate its rights to the city’s zoning regime.   The court concluded that the conditional use permit did not alter the Park’s status as a nonconforming use.

The second issue addressed was whether the city had authority to terminate the nonconforming use by revoking the conditional use permit. Minn. Stat. secs. 465.01 and 462.57 describe four circumstances under which a nonconforming use may be terminated.  They include eminent domain, discontinuance of the nonconforming use, destruction of the nonconforming use, and judicial determination that the use is a nuisance.  The Minnesota Supreme Court ruled that Wapiti Park may continue to operate the campground as a nonconforming use because these statutes do not include the revocation of a previously issued conditional use permit as a condition of termination, and none of the identified four circumstances applied to Wapiti Park.  Interestingly, the court identified a nonconforming use as “a constitutionally protected property right,” citing a Connecticut court case and not the Minnesota constitution in support of that proposition.

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