In Minnesota, a Legal Non-Conforming Use is Not Terminated by Issuing or Revoking a Conditional Use Permit
A permitted use is a use for a property that is intended and allowed as long as the landowner meets all of the other requirements of the particular zoning category. A conditional use is a use for a property that is conditioned upon certain requirements. In the latter, the landowner applies for a conditional use permit (“CUP”). If the CUP is approved, it is granted subject to conditions, and those conditions become part of the CUP. If those conditions are violated, a process exists to revoke it.
Once a property is being used as is permitted under a zoning designation, a landowner’s right in that designation vests, and the landowner has a legal right to continue that use. If the zoning designation then changes, the landowner may continue the use despite the fact that the use is no longer allowed under the current zoning designation (known as legal nonconforming uses). If he is not allowed to do so, a taking may occur. However, there may be no taking if a landowner is not allowed to use his property due to the revocation of a CUP, as the landowner does not have a vested right in the CUP.
In White v. City of Elk River, No. A12-068 (12/4/13), the Minnesota Supreme Court decided the effect of the revocation of a CUP on a legal nonconforming use. In 1973 Wapiti Park Campgrounds, Inc. (“Wapiti”) began operating a campground before zoning was enacted for the parcel. Zoning was subsequently enacted in 1980, making campgrounds a non-permitted use. Wapiti then operated the campground as a legal nonconforming use.
In 1983 the zoning ordinance was amended, making campgrounds a conditional use subject to a CUP. For several reasons Wapiti applied for and was granted a CUP in 1984. Then, in 1988 the zoning ordinance was once again amended, making campgrounds neither a permitted nor a conditional use.
In approximately 2010 Wapiti violated the terms of its CUP, prompting Elk River to revoke it and take the position that Wapiti was not allowed to operate the campground as a nonconforming use. Wapiti sued Elk River, arguing, among other things, that the campground was a legal nonconforming use that could not be revoked through the issuance and termination of a CUP.
Wapiti maintained that its legal nonconforming status started in 1980 when the zoning ordinance was enacted and that its voluntary application for a CUP in 1984 did not cancel its legal nonconforming use status. Elk River countered that once Wapiti was granted the CUP in 1984 that its legal nonconforming use status terminated. Then, when the zoning ordinance was amended in 1988 to make campgrounds neither permitted uses nor conditional uses, Wapiti’s use of the property was a legal nonconforming use as a conditional use subject to a CUP. Thus, when Wapiti violated the terms of the CUP and it was revoked, it had no right to use the property as a campground.
The Court concluded that the campground was a nonconforming use that could not be terminated by the revocation of the CUP. In doing so, the Court concluded that a landowner does not give up its right to continue a legal nonconforming use by obtaining a CUP unless the landowner “validly” (intentionally and knowingly) waives that right. Furthermore, the Court held that, because the revocation of a CUP is not one of the methods that are available to a municipality to terminate a legal nonconforming use, the nonconforming use did not end with the revocation of the CUP.
This situation is a lesson to both landowners and municipalities alike. They both need to be aware of their rights at a given time and have a clear understanding of how their subsequent actions affect those rights. Otherwise, a landowner could wind up waiving its rights, or a municipality could unconstitutionally take a landowner’s rights.
