Agenda - Planning Commission - 10/07/1997

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-- I Z.B. September 10, 1997 - Page 5 The city appealed, and the appeals court affirmed. It held the owner's intent to abandon the use was needed, and the discontinuance of the use for more than a year only created a rebuttable presumption of intent to abandon. This meant the owner could rebut it by proving no intent to abandon, which in this case he did. The city appealed to the Supreme Court of Arizona. DECISION: Reversed and returned for a trial. A trial was needed to determine whether the owner engaged in wrongdoing that led to the closure of his club. The owner didn't have to intend to abandon the use for it to lose its legal nonconforming status, but the period of nonuse had to be attributable at least in part to the owner. The city could pass an ordinance dispensing with the intent-to-abandon requirement, but it couldn't terminate a use just because one year passed- some conduct attributable to the property owner had to justify the termination. A nonconforming use could be lost through.negligence or if a person engaged in misconduct he or she should have known could have lead to involuntary closure. There was no question the owner was properly restrained from operating his club for more than a year..Had the court's findings in support of granting the temporary closure been made final, the owner would have been barred from relitigating those facts. However, because the county agreed to dismiss the nuisance action against the owner before the court issued a final judgment, the city could not rely on those findings. Both parties deserved a trial. If the city proved the owner engaged in wrong- doing that led to the closure of the club, then the city was entitled to a judgment declaring the nonconforming use status lost. see also: Smith v. Board of Adjustment of Cedar Rapids, Iowa, 460 N. T-f.'2d 854 (1990). see also: Ernst v. Johnson County, 522 N. T-f.'2d 599 (1994). :::.' qD Eminent Domain - City seeks to condemn property for recreation trail Town of Parker v. Norton, 939 P.2d 535 (Colorado) 1997 Norton owned property just outside the town of Parker, Colo. The town wanted to condemn a strip of Norton's land to be used as part of a recreation trail extending into a nearby wilderness area. The town sued Norton, seeking to condemn the strip of land. It claimed it had the authority to condemn Norton's property under its home rule powers. Norton claimed the state Recreation Trails System Act of 1971, which governed the development and maintenance of a statewide trail system, prohibited the town from condemning his property. The Trails Act stated, "Nothing in this article shall permit the acquisition of recreational trails by pro- ceedings in eminent domain by any state agency or any unit of local government." According to Norton, this limited the town's general eminent domain powers. Norton asked the court to dismiss the town's condemnation action. The court agreed, finding the Trails Act prohibited the town from condemning Norton's land for a recreational trail.