Agenda - Council - 03/22/2011 - Laserfiche WebLink

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CASE # REQUEST TO CONSIDER EVIDENCE OF INTENT TO CONTINUE USE OF MOTOR VEHICLE SALES RELATED TO LEGAL, NON -CONFORMING USE CLAIM AT 8110 HIGHWAY 10 NW; CASE OF CHAD LUNDQUIST AND ERIC LUNDQUIST By: Tim Gladhill, Associate Planner Background: The City has received an a request from Chad Lundquist and Eric Lundquist to classify motor vehicle sales as a legal, non -conforming use at 8110 Highway 10 NW. Per City Ordinance #09-13, Motor Vehicle Sales and Repair became a conditional use in the B-2 Highway Business District, effective October 19, 2009. Any parcel actively using their parcel as motor vehicle sales or repair became at the time the ordinance became effective was classified as a legal, non -conforming use. The Subject Property was not used as motor vehicle sales when the ordinance became effective, but the Property Owners claim a lease existed on the Subject Property for motor vehicle sales through March 2, 2009. The Subject Property is currently being used for motor vehicle repair, but not sales. Notification: No notification is required. Observations: On October 23, 2009, the Property Owners contacted the City Clerk to obtain a City Motor Vehicle License to operate a motor vehicle sales use. The City's Planning Division requested evidence of the last date the Subject Property was used as Motor Vehicle Sales to establish legal, non -conforming use, if warranted. Minnesota Statute § 462.357 governs non -conforming uses (the "Statute"). In addition, City Code §9.03.14 deals with non -conforming structures and uses. It is important to note that local ordinance cannot supersede State Statute for non -conforming uses. The Statute states that legal, non -conforming use can be lost when the use is discontinued for more than a year. Under case law, according to the League of Minnesota Cities Insurance Trust (LMC-IT), a one-year period of discontinuance creates a presumption of abandonment. A property owner can then rebut the presumption by presenting evidence of intent to continue the use, or that the discontinuance was beyond his or her control. The Property Owner submitted a copy of a lease by and between the Property Owners and Amazon Auto that expired on March 2, 2009 (the "Lease"). City Staff verified with the owner of Amazon Auto that the lease was valid. In the Applicants' request, it is stated that the Subject Property has been used for motor vehicle/recreational vehicle sales for forty plus years. Regardless of the number of years in the past a parcel has been used for a non -conforming use, State Statute is clear in stating that a non -conforming use is terminated if discontinued for more than a year. City Staff is aware that it appears that the tenant, Amazon Auto, vacated the premises prior to the expiration of the lease. Nonetheless, it appears that the Property Owners' intended to continue the use as motor vehicle sales, as shown in the Lease. This assumption is predicated on City Council accepting the lease as credible evidence of legal, non -conforming use. If the City Council finds that the lease submitted is not credible evidence of intent to continue use, it would then appear that, based on evidence provided to the City by the Applicant, that there is not a claim of legal, non -conforming use.