Agenda - Planning Commission - 04/07/2016

Home

March 25, 2016 I Volume 10 I Issue 6 Zoning Bulletin of the Sign as of November 2012[,]" (2) "Discontinuance of the use [of] the. Sign for more than one year is presumed to be abandonment of the use of the Sign[,]" (3) "Abandonment of the sign occurred in November 2013 [,]" and (4) "The Owner failed to rebut the presump- tion that the use was abandoned." Meleyco again appealed. The City Council upheld the committee of adjustments' decision. Meleyco once again appealed. Finding there were not material issues of fact in dispute, and decid- ing the matter on the law alone, the district court issued summary judgment in favor of the City. Meleyco appealed yet again. DECISION: Judgment of district court reversed. The Court of Appeals of Minnesota disagreed with the City Council's findings and reversed the decision. The court found that the sign use was not discontinued until Pawn America covered the sign in April 2013. In so holding, the court looked at the plain meaning of the words of the governing City Ordinance, particularly the word "use." The court found that the definition of "use" in the City Ordinance was "unclear, both in terms of what it means to discontinue the use of a sign and whose use matters (i.e., the tenant or the property owner)." The court therefore looked to the zoning ordinance as a whole, as well as dictionary definitions of "use.',' The court found that one of the plain, ordinary meanings of "use" is "[t]he act of using something; the application or employment of something for a purpose." With that definition, the court said that "common sense dictates that the active employment of the sign for the purpose of advertising a business controls." Construing the City Ordinance against the City and in favor of Meleyco (which is required by the policy of favoring property owners' rights and their interest in the continuation of nonconforming uses), the court concluded that: "under the discontinuation provision, a preexisting nonconforming use can only be lost where its nonuse is attributable, at least in part, to the property owner." Thus, the court concluded that tenant Pawn America's change in the way it occupied the property did not support the City's conclu- sion that the use of the pylon sign was discontinued for more than one year. Notably, the court had also found that an acceptable way of viewing use in addition to Pawn America's usage of the sign and property was that Meleyco always employed the building and sign for the purpose of generating revenue. Arguably, noted the court, 4 © 2016 Thomson Reuters