6.3. SR 03-21-2011 - Laserfiche WebLink

Home Browse Search

Annotated Notes on January 18t1i P><•esentation to Elk River City Council Honorable Mayor and Councilors, my name is James Robin of Wayzata Law Group. Wayzata Law Group represents Lorraine White and Wapiti Park Campgrounds, loc. For purposes of adding to the formal record I would like to clarify the positions of my clients with respect to the proposed findings o1' fact assembled by city staff: My clients generally agree with proposed tindiugs numbered 1 through 4, but want to point out that when the campground became a legal, nonconforming use as a result of flue rezoning referred to in Finding 4, my clients' use rights were exactly what they were before the adoption of the zoning code in 1980 and before the CUI' Was issued in 1984. My clients were entitled to continue to operate the campground, subject to State licensure requirements, but free of the conditions attaclued to the previous CUl'. o White and Wapiti Nark lose their status as a legal, nonconforming use only through abandonment. o Abandonment occurs only when there is intent to abandon and there is sung overt act ur litilure to act indicating the owner no hmger claims a right to the nonconforming use. 0 Bee County of ]sand v. Peterson, 4(i9 N. W.2d 4G7, 470 (Minn.App.1991) and see also Peacock'fp. V. Panetta, 81 Mich. App. 733, 2G5 N. W.2d 8 [ 0 (I 978). o The city has acknowledged Wapiti's status as a legal, nonconforming use, unencumbered by conditions. (Sec: Director of Planning, Michele Met'herson's Memorandum to Mayor and City Council (April 12, 2000)}. o Counsel Ior the city is also on record acknowledging status as a legal, nonconforming use. o The city has never mught to enforce the conditions associated with the 1984 CUP, nor has it reviewed the slants every two years as provided in the purpot•ted conditions. o Any attempt to argue that the 1984 antcfilions continue to apply is disingenuous and barred by principles of estoppel With respect to proposed finding number S, we do not agree that Elk River ordinances "did not allow the reconstruction." It is our position that the value of the destroyed building, which served as an accessory use, Was far less than 50°/p of flue total integrated value of the fifty-one acre campground. We believe Elk ]fiver had no authority to prevent reconstructionu and acted improperly and without authority in requiring an application for a CUP and again acted improperly and without authority in unilaterally treat'uuug the CUP application as an application for an IUP. o See Wertog v. Milwaukee Mul. fns. Co., 4l5 N.W,2d 370, 373-374 (Mitts. App. 1987); o See E3ttss v. Johnson, fi24 N.W.2d 781 (Minn. App. 2001) {interpreting a statute similar to IIk Kiver's Ordinance Q 900.34, Subd. 9 and concluding that the value of the destroyed building must be compared to tJte value of an entire integrated nonconforming use „hen determining the percentage o1'destruction of a nonconforming building). o Sec also fetter v, Holheins, 190 Misc. 99, 70 N.Y.S.2d 808 (Sup 1947); Application ol'Richards, 41 Misc. 2d 850, 24G N.Y.S.2d 746 (Sup 1962); and Patricia E. Salkin, American Law ol'loning § 12.G2 (5i0 ed. 2010). We agree with proposed finding number 6, except for the portion that describes why the city unilaterally treated the CUP applicationu as an IUP application and the portion indicating the likely sate or development within IO years. o The property owner, Loraine White, never made any such representation. o Ii was irresponsible of the city to suggest that a cilixen build a building designed to lass for fifty or sixty years with a limitation often years on the cifizen's right to use the building.