Agenda - Planning Commission - 12/03/2009

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(j (n () Zoning Bulletin September 10, 20091 Volume 31 No. 17 more than 30 boats ...."The CUP did not limit the types of boats that could be moored in the Club's marina. In 2005, the city began receiving complaints from residents near the marina that the Club was renting boat slips to power boats. In 2007, thirty years after the CUP issued, the city amended the CUP by adding the term "sail" to the word "boats." The Club filed a complaint in district court. It asked the court to pro- hibit the city from enforcing the amended CUP, arguing it was invalid and unenforceable. ' The city noted that the Club originally applied for the CUP as a sail- boat facility and that it had "continually postured itself as such." The city maintained that the CUP amendment merely clarified the CUP to re- flect the Club's stated intent to operate a sailboat facility. Finding there were no material issues of fact in dispute and deciding the matter on the law alone, the district court issued summary judgment in favor of the Club. The court held that the city could not unilaterally add a'condition to the CUP. The city appealed. DECISION: Affirmed. The Court of Appeals of Minnesota agreed that the city did not have authority to unilaterally amend the CUP. The court explained that a CUP is "not a personal license, but a protected property right." It is "perpet- ual in nature and runs with the land." Thus it "continues to encumber the property even after it is conveyed to subsequent owners." Because of this, "a CUP cannot be unilaterally amended without either a violation of the CUP's express conditions or the consent of both parties." Because the Club neither violated the express terms of the CUP nor consented to its amendment, the city could not unilaterally amend the Club's CUP. See also: Northpointe Plaza v. City of Rochester, 465 N. W.2d 686 (Minn. 1991). Case Note: The court distinguished a municipality's'lack of author- ity to unilaterally amend a CUP with its authority to reconsider the issuance of a CUP. The city could have reconsidered the issuance of the CUP to the Club but only "within the limited time before the appeal period" ran on its decision. Case Note: In its decision, the court responded to the city's argu- ment that the CUP amendment merely reflected the Club's use rep- resentations. The court noted that unless the Club's representations regarding intended use were actually recorded in the CUP, the rep- resentations were irrelevant. This was because interested parties or @ 2009 Thomson Reuters 3 61