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City can’t revoke CUP to close campground

Barbara L. Jones//December 5, 2013//

City can’t revoke CUP to close campground

Barbara L. Jones//December 5, 2013//

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The Supreme Court threw a log across the road the city of Elk River was using in its attempts to shut down Wapiti Park Campgrounds when the court said that the city could not terminate the campgrounds’ nonconforming use by revoking a conditional use permit.

In a case of first impression, it said that a city may terminate a nonconforming use only under Minn. Stat. sec. 462.357, subds. 1d-1e or Minn. Stat. sec. 465.01. It may not require the property owner to obtain a conditional-use permit and then revoke the permit to eliminate the nonconforming use, the court said.

“[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,” wrote Justice Wilhelmina Wright.

The unanimous opinion reverses the Court of Appeals and remands the matter back to the District Court, which earlier ruled that a nonconforming use could not be terminated by revocation of a CUP. Justice Wilhelmina Wright wrote the opinion.

The court did rule in favor of the city’s ability to require an interim use permit before approving replacement and use of a building on the land.

Campground preceded zoning

The campground was opened in 1973, when there was no zoning ordinance that regulated use of the land. Later it operated as a legal nonconforming use. The park was granted a conditional-use permit in 1984. The CUP prohibited permanent units in the park.

After a fire destroyed the only building on the campground, the city required the park to apply for an interim-use permit good for 10 years. In 2010, the city renewed the interim-use permit subject to condition, including those governing the CUP. The city then inspected the park and determined that many individuals considered it their permanent home. It determined that the permanent occupancy violated the CUP. It adopted resolutions denying renewal of the interim-use permit and revoking the CUP.

The park sued the city and the city counterclaimed, seeking an injunction against the operation of campground. The parties brought cross-motions for summary judgment, and the District Court ruled in favor of the park. The Court of Appeals reversed, saying the city could revoke the permit because it was violated.

The Supreme Court first examined the effect of the CUP on the campground’s status as a nonconforming use. The court framed the issue as “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.” It said that the law recognizes limits on the authority of a municipality to terminate nonconforming uses, which are protected by Minn. Stat. Sec. 462.357. In fact, a property interest in a nonconforming use is subject to constitutional protection, the court said.

It held the landowner did not surrender the right to continue a nonconforming use by obtaining a CUP unless the landowner validly waives that right.

The park did not waive any rights, the court said. “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,” Wright observed.

Therefore, “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,” said Wright.

The court then considered whether the city can terminate the nonconforming use by revoking the CUP, and ruled it cannot. Minnesota Statute sec. 465.01 sets out four grounds for terminating a nonconforming use: eminent domain, by operation of law when the use has been discontinued, by operation of law because the property is destroyed, or by judicial determination that the use was a nuisance.

“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,” the court said.

The opinion does not interfere with the municipalities’ rights to use regulations to protect the public against harmful nonconforming uses, Wright pointed out.

Interim-use permit

The court said that statutes governing interim-use permits were not in effect at the time of the 1999 fire or the 2000 interim-use permit, and therefore do not govern replacement of the burned building.

Instead, an Elk River ordinance governed restoration of a property damaged more than 50 percent of the assessed market value and thus covered the campground building, which was destroyed. The campground was not required to destroy the building but was prevented from using it until it complied with the permit.

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