Agenda - Planning Commission - 01/31/2013 - Special

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December 10, 2012 I Volume 6 I Issue 23 Zoning Bulletin campground was a legal, nonconforming use and that the city erroneously revoked its permits. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court granted partial summary judgment for Wapiti Park. The court found that: the campground was a legal, noncon- forming use; and the City could not eliminate this use by revoking the 1984 conditional use permit. The City appealed. On appeal, the City contended that because, in 2010, Wapiti Park was no longer in compliance with the 1984 permit conditions (given the campground had year round, permanent residents), the use was no longer "lawful" under state statutory law governing nonconforming uses — Minn. Stat. § 462.357, subdivision le(a). As such, the City maintained that Wapiti Park was not allowed to continue the nonconforming use. DECISION: Reversed. The Court of Appeals of Minnesota agreed with the City. The Court held that the 1984 conditional use permit did not expire or terminate when Wapiti Park became a nonconforming use in 1988: Rather, the permit remained in effect, and the campground's nonconforming use of the property was only lawful so long as it complied with the permit conditions. The court further held that the City was entitled to revoke the 1984 conditional use permit, and thereby terminate use of the property as a campground, when Wapiti Park continued to violate the conditions of the 1984 conditional use permit. To address the issue presented, and in so holding, the court looked to the statutory law governing nonconforming uses —Minn. Stat. § 462.357, subdivi- sion le(a). Section 462.357, subdivision le(a) provides in relevant part: Except as otherwise provided by law, any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an ad- ditional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expan- sion . . . . The court concluded that § 462.357, subdivision le(a) provided that, to be a protected nonconforming use, the use must have been "lawful" at the time it became nonconforming. The court found that, at the time of the 1988 amend- ment to the zoning ordinance (which removed campgrounds as conditional uses and resulted in the campground being a nonconforming use), Wapiti Park's use of the property as a campground was only lawful because of the 1984 conditional use permit. Thus, under the plain language of § 462.357, subdivision le(a), the court determined that Wapiti Park was only entitled to the protections of § 462.357, subdivision le(a) if it remained in compliance with the permit that made it a lawful use in the first place. Moreover, the court found that Wapiti Park's conditional use permit was still in effect in 2010 because it had never been revoked or otherwise terminated. The court said: "A conditional -use permit does not cease to exist when the use becomes nonconforming. Rather, the nonconforming use is then defined by the conditions contained in the conditional -use peiiitit, and any use outside of the permit parameters may be an unlawful expansion of the 8 © 2012 Thomson Reuters