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2 <br />You indicated that the City requires an automobile sales license as well as a State license. <br />While Cities can require licensing to promote land use issues, the City cannot regulate the sale of <br />motor vehicles through licensing, as that is strictly the domain of State government. I do not <br />know when the City began requiring licensing of motor vehicle dealers, but it was certainly not <br />before Mr. Niles began his operation. While Mr. Niles may have obtained a City dealer's license <br />in years before 2006, that would have been a voluntary act of civic generosity on his part, as he <br />could not be made to acquire a license under an ordinance enacted after his usage was <br />established. Even if he could be made to acquire a license, the failure to do so could not be used <br />to deprive him of his grandfather rights, as they are governed by intent to abandon, not by <br />failure to pay a fee. The City could pursue other remedies to collect its license fee. <br />The law is well settled in Minnesota that the termination of grandfather rights is governed by <br />intent to abandon, as opposed to mere discontinuance of use. In this case, we have neither an <br />abandonment nor a discontinuance ~f use, merely the failure to have obtained a license. Mr. <br />Niles has continued to sell and service a vaziety of vehicles and boats from this location since <br />2006, just has he had in the previous 35+ years. <br />The two leading cases are County oflsanti vs. Peterson, 469 NW 2"d 467 (Mn. App., 1991) and <br />Haefele vs. City of Eden Prairie, 2000 WL 1869574 (Mn. App., 2000). <br />Isanti County was a successful action by the County to enforce its zoning code over a claim of <br />grandfather rights, in a case in which a property owner claimed apre-ordinance right to store <br />moved houses. The trial court found in that case that the evidence showed that the property in <br />question had not been used for such storage for some 11 yeazs, and that this discontinuance of <br />use was clear evidence of "abandonment": However, in explaining the concept of <br />"abandonment", the court stated as follows, quoting from 8A McQuillin, S. 25.192: <br />"Abandonment ordinarily entails two factors: (1) intent to abandon, and (2) an overt act or <br />failure to act indicating the owner no longer claims a right to the nonconforming use. " <br />The court went on to make the following comment: <br />"The requirement of intent to abandon is the most imposing obstruction to municipal attempts to <br />terminate nonconforming uses which have been dormant for a period of time ". <br />Mr. Niles has made no "overt act or failure" to indicate that he intended to abandon the usage. <br />This fact is confirmed by your own letter, clearly describing activities that were ongoing during <br />your inspection. His usage of the land for sales and service has not been dormant, it has been <br />actively pursued, and the situation does not remotely comply with the test for abandonment as <br />laid out in Isanti County. <br />Haefele presents an unsuccessful attempt by the City of Eden Prairie to discontinue the operation <br />of a group home. In that case, the property owner rented his duplex to a tenant that operated a <br />group home. At the time that the occupancy commenced, it was appazently allowed. However, <br />the usage was discontinued when the tenant vacated the premises. During the ensuing several <br />years, the owner attempted to find a new group-home tenant, but was unsuccessful. The owner <br />