The Minnesota Court of Appeals recently clarified the restrictions applicable to certain legal nonconforming uses. When a zoning regulation is changed, making a use illegal, the State of Minnesota requires that the use be grandfathered in so that the “lawful use or occupation of land or premises existing at the time of the [amendment] may be continued . . . .” Minn. Stat. § 462.357, subd. 1e(a). White v. City of Elk River demonstrates that even where an owner has used her property as a nonconforming use for decades, she must continue to comply with any conditions originally attached to the use of her property. 822 N.W.2d 320 (Minn. Ct. App. 2012).
Regulatory Background of White
White concerned Wapiti Park Campgrounds (“Wapiti Park”), which first opened in 1973, before any zoning ordinances had been enacted in the area. Id. at 321. In 1983, the City of Elk River (the “City”) enacted zoning regulations making operation of a campground a conditional use. Id. The following year, the City granted Wapiti Park a conditional use permit (“CUP”), subject to nine conditions, one of which was that no permanent residents be allowed to reside on the campground. Id. Shortly thereafter, in 1988, the City again amended its zoning ordinance, this time making campgrounds a prohibited use. Id. At this time, Wapiti Park became a legal nonconforming use. Id.
In 1999, a fire destroyed Wapiti Park’s only building and the City required it to obtain an interim use permit before rebuilding the structure. Id. at 322. The interim use permit, issued in 2000, was valid for ten years and did not alter the terms of the underlying CUP. Id. In 2010, the interim use permit expired and Wapiti Park applied for a new permit. Id. The City decided that in determining whether to grant the permit, it would review the campground “‘[b]ecause the structure is accessory to (subordinate and serving) the principle [sic] use’ of the campground.” Id. This inspection revealed “a number of people us[ing] the campsites as permanent housing,” and such permanent improvements as exterior insulation and steps, sheds and porches, and “rigid piping connecting the vehicle to the sanitary system.” Id. Testimony at a public hearing further reinforced the City’s conclusion that several people were making Wapiti Park their permanent homes. Id.
After Wapiti Park failed to remedy its violation of the 1984 CUP conditions, the interim use permit was denied and the CUP was conditionally revoked. Id. When Wapiti Park again failed to comply with the original provisions of the CUP, the CUP was fully revoked.
White v. City of Elk River
Wapiti Park sued the City for a declaratory judgment that the campground was a legal nonconforming use, as well as for tort damages it allegedly suffered when several “longer term campers” did not renew their “rental contracts.” Id. The district court ruled in favor of Wapiti Park, holding that the City had erroneously revoked the conditional use permit and that Wapiti Park had been entitled to rebuild the destroyed building in 2000 without a permit. Id. at 322–23.
The Court of Appeals reversed this determination, focusing on the statutory language governing nonconforming uses: “[A]ny nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control . . . may be continued . . . .” Minn. Stat. § 462.357, subd. 1e(a) (emphasis added). The court interpreted this section to mean that a nonconforming use must remain “lawful” in order to maintain its status. Id. at 324. In the context of CUPs subject to specified conditions, the user must continue to comply with these conditions to maintain the site’s “lawful” status. Id. Because Wapiti Park failed to comply with the permanent resident prohibition attached to Wapiti Park’s CUP, the City was entitled to revoke the CUP.
The Legal Landscape of Legal Nonconforming Uses Post-White
This conclusion, paired with the 2006 decision in Lam v. City of St. Paul, clarifies the parameters within which a nonconforming use continues to be valid. 714 N.W.2d 740 (Minn. Ct. App. 2006). In Lam, the Court of Appeals held that a CUP continues to be a legal nonconforming use until the underlying CUP has actually been revoked. Id. at 744. Thus, where a city documented numerous violations of a CUP that had become a nonconforming use, but failed to take any enforcement action, the city could not deny a license on the basis that the CUP was no longer valid. Id. at 744–45. Under the framework established by Lam and White, a landowner must continue to comply with the terms of her CUP, but a municipality must also satisfy any procedural requirements necessary for revocation of the CUP.
Following the White decision, landowners with legal nonconforming use rights should be cognizant of any conditions that are attached to use of their property. White and Lam show that even if a landowner with an underlying CUP has been violating a particular condition, so long as the municipality has not taken steps to revoke the underlying CUP, the use remains valid. This provides landowners with a valuable window of opportunity to remedy violations of CUP conditions. If such violations can be remedied before the municipality has taken the necessary steps to revoke the CUP, the use will remain a legal nonconforming use and the municipality will be unable to either revoke the underlying CUP or deny associated permits and licenses.