Posted by: Patricia Salkin | March 17, 2016

MN Appeals Court Finds Use Could Only Be Lost Where Nonuse was Attributable at Least in Part to Property Owner

Appellant Meleyco Partnership No. 2, owned real property located at 1399 Robert Street South in West St. Paul. In 1971, appellant had a pylon sign lawfully erected on the property. On October 22, 1997, appellant entered into a lease with Pawn America, which gave Pawn America the right to use the property and pylon sign through April 30, 2014. After that time, the city enacted an ordinance restricting the use of pylon signs. In April 2013, Pawn America covered the pylon sign, effectively making it blank. The city’s zoning administrator, Benjamin Boike, sent appellant a letter stating that “the sign is considered abandoned since the property has been vacant for more than 1 year” and directing appellant to remove the sign. The zoning administrator confirmed the decision that the sign was deemed abandoned and needed to be removed. Appellant appealed the zoning administrator’s decision to the city’s committee of adjustments. The committee of adjustments upheld the zoning administrator’s decision. The District Court, granted city’s motion for summary judgment, and Meleyco appealed.

The city argued that the sign’s use was discontinued when Pawn America ceased retail pawn operations in November 2012, and the sign therefore lost its nonconforming status in November 2013. The court found that common law property rights calls for courts to construe zoning ordinances strictly against a municipality and in favor of a property owner. As such, 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. Here, appellant’s use of the sign continued at least until appellant permitted Pawn America to cover the sign in April 2013. Arguably, appellant’s use of the sign, including its inclusion in materials marketing the property to prospective tenants, continued until the end of Pawn America’s lease in February 2014. Thus, even if the sign’s use was discontinued, the court concluded that it was discontinued, at most, for ten months. Accordingly, Appellant was entitled to continue the nonconforming use.

Meleyco Partnership No. 2, Appellant, v. City of West St. Paul, 2016 WL 281229 (MN App. 1/25/2016)

 


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