AIM Development (USA), LLC, Appellant, vs. City of Sartell, Respondent.
A18-0443
STATE OF MINNESOTA IN SUPREME COURT
July 15, 2020
McKeig, J. Concurring in part, dissenting in part, Hudson, Chutich, JJ.
Court of Appeals
John M. Baker, Aaron P. Knoll, Greene Espel PLLP, Minneapolis, Minnesota, for respondent.
Susan L. Naughton, Saint Paul, Minnesota, for amicus curiae League of Minnesota Cities.
S Y L L A B U S
- The scope of a property owner’s nonconforming-use rights is defined by the uses lawfully existing at the time of the adverse zoning change.
- The owner of a facility for nonhazardous, non-toxic industrial waste that accepted waste from a single source may accept waste from additional sources without expanding its nonconforming-use rights.
Reversed and remanded.
MCKEIG, Justice.
In 2013, appellant AIM Development (USA), LLC, purchased property in respondent City of Sartell containing a facility for nonhazardous, non-toxic industrial waste, which had operated as a nonconforming use since 1989. This case concerns the scope of AIM Development’s nonconforming-use rights and, specifically, whether the waste facility may accept waste from more than one source. The court of appeals defined AIM Development’s nonconforming-use rights based on the terms of a state рermit in effect at the time that it purchased the property. Based on the terms of that permit, the court of appeals determined that the facility was limited to accepting waste from a nearby paper mill, which was recently demolished. We conclude that the scope of a property owner’s nonconforming-use rights is defined by the uses lawfully existing at the time of adverse zoning change. We further conclude that accepting waste from more than one source does not, standing alone, constitute an impermissible expansion of AIM Development’s nonconforming-use rights. Therefore, we reverse the decision of the court of appeals and remand to that court for consideration of other issues not reached.
FACTS
For approximately 100 years, a paper mill operated in respondent City of Sartell along the shore of the Mississippi River. In 1984, the owner of the paper mill sought permission to open and operate a landfill nearby.
The property owner applied to the Minnesota Pollution Control Agency (“MPCA”) for permission to construct and operate a 70-аcre storage and disposal facility for
In December 1984, the City passed a resolution that rezoned the site of the proposed landfill from a residential district to a light-industrial district. The City then approved an ordinance that allowed as a permitted use in a light-industrial district an “industrial storage and disposal facility,” defined as “[a] facility permitted by the Minnesota Pollution Control Agency or its regulatory successor for the disposal of non-hazardous and non-toxic industrial solid waste.” Significant to this appeal, the ordinance defined “industrial solid waste” as “[n]on-hazardous, non-toxic waste material resulting from an industrial operation. It shall not include garbage, refuse and other discarded materials, animal waste, fertilizer, or solid or dissolved material from domestic sewage.”
The landfill became operational a few years later. The landfill began accеpting wood yard debris, boiler ash, scrubber cake, and other approved waste from the paper mill in September 1987. In 1989, the City amended its zoning ordinance to remove the operation of industrial storage and disposal facilities from the permitted uses of land in light-industrial districts. The operation of the landfill continued as a nonconforming use. As the district court observed, there is no indication that the landfill was ever used “for any purpose other than a captive landfill” for the paper mill.
In January 2014, AIM Development applied to renew the amended 2009 MPCA permit, which was valid through March 2014. AIM Development’s permit renewal application requested authorization to accept a wider variety of non-hazardous industrial waste from new sources and to construct additional fill area to increase the area of land used for disposal. The City opposed the application, arguing that the nonconforming use had been discontinued.4 In the alternative, the City argued that the proposal is an impermissible expansion of AIM Development’s nonconforming-use rights.
The district court ruled that the use of the landfill is “limited to waste generated by the paper mill operation” and that “the disposal of . . . wastes from other generators is an unpermitted expansion of the use.” The court of appeals affirmed. AIM Dev. (USA), LLC v. City of Sartell, 925 N.W.2d 255 (Minn. App. 2019). The court of appeals determined that AIM Development’s use of the landfill was “limited to the activities approved by the [2009 MPCA] permit that was transferred to AIM [Development]” in 2013 and concluded that AIM Development did not establish that its predecessors in title used the landfill “as a
AIM Development requested further review. We granted review of the two issues that AIM Development raised in its petition: (1) whether the terms of the MPCA permit in effect at the time of the property transfer defined the scope of AIM Development’s nonconforming-use rights; and (2) whether AIM Develоpment’s proposal to accept waste from sources other than the demolished paper mill is an impermissible expansion of AIM Development’s nonconforming-use rights.
ANALYSIS
This case comes to us on appeal from summary judgment, and our review is de novo. See Visser v. State Farm Mut. Auto. Ins. Co., 938 N.W.2d 830, 832 (Minn. 2020). On appeal from summary judgment, we determine whether genuine issues of material fact exist and whether the district court correctly applied the law. White v. City of Elk River, 840 N.W.2d 43, 48 (Minn. 2013). This dispute concerns whether the lower courts misapplied a provision of state law,
We begin with a brief discussion of zoning law and nonconforming-use rights. A municipality’s authority to regulate the use of privately owned land derives from state zoning enabling law. See
The issues presented concern the scope of AIM Development’s nonconforming-use rights. “A nonconforming use is a use of land that is prohibited under a current zoning ordinance but nonetheless is permitted to continue because the use lawfully existed before the ordinance took effect.” White, 840 N.W.2d at 49. Although a zoning ordinance may constitutionally prohibit the creation of nonconforming uses, existing uses must be allowed to remain or be eliminated through eminent domain. Krummenacher v. City of Minnetonka, 783 N.W.2d 721, 726 (Minn. 2010).
With this context in mind, we turn to the issues presented in this appeal.
I.
The court of appeals defined the scope of AIM Development’s nonconforming-use rights by the terms of the MPCA permit in effect at the time that AIM Development purchased the property (the 2009 MPCA permit). AIM Dev. (USA), LLC, 925 N.W.2d at 261–62. AIM Development argues that the court of appeals erred by focusing on this
With exceptions not relevant here, Minnesota law provides that “the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement.”
Our case law is clear on how to determine the time the use became nonconforming. “It is a fundamental principle of the law of real property that uses lawfully existing at the time of an adverse zoning change may continue to exist until they are removed or otherwise discontinued.” Hooper v. City of Saint Paul, 353 N.W.2d 138, 140 (Minn. 1984) (emphasis added). “[W]e have repeatedly acknowledged that although a ‘zoning ordinance may constitutionally prohibit the creation of uses which are nonconforming,’ existing nonсonforming uses must be permitted to remain.” White, 840 N.W.2d at 49–50 (quoting Krummenacher, 783 N.W.2d at 726). Moreover, we have long recognized that a subsequent property owner “stands in the place of [its] predecessors” for purposes of defining the scope of nonconforming-use rights. See Hawkins v. Talbot, 80 N.W.2d 863, 867 (Minn. 1957).
II.
We next consider AIM Development’s proposal to accept waste from a source other than the defunct paper mill.7 For AIM Development’s proposed nonconforming use to be protected by
A.
We start with whether accepting waste from a new source is a continuation of the original nonconforming use. AIM Development argues that the source of the landfill’s waste “is immaterial for purposes of dеtermining whether [its] proposal is an impermissible expansion of [its] nonconforming use.” The City disagrees, arguing that, because the landfill operated for the sole purpose of disposing waste that was generated by a nearby paper mill under common ownership, AIM Development’s nonconforming-use rights are limited to the continued operation of a captive waste facility. The application of statutes and local ordinances to undisputed facts is a legal conclusion that we review de novo.8 Jennissen, 938 N.W.2d at 813.
In determining a statute’s plain meaning, “words and phrases are construed according to rules of grammar and according to their common and approved usage.”
With this framework in mind, we turn to the meaning of the word “continued.” State zoning law provides, in pertinent part:
For the purpose of promoting the public health, safety, morals, and general welfare, a municipality may by ordinance regulate . . . uses of land . . . .
. . . .
Except as otherwise providеd by law, any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion . . . .
It is an undisputed fact that the only source of waste was the paper mill, which has been destroyed and will not be rebuilt. Accordingly, AIM Development wishes to replace the paper mill waste with other sources of waste. AIM Development’s proposal limits the new sources of waste to generators of nonhazardous, non-toxic industrial waste—the same category of waste stream as its prior source, and precisely the category of waste allowed by the ordinance of December 1984. Because the plain language of the statute allows a landowner to continue a nonconforming use through replacement, we conclude that AIM Development’s proposed substitution of its sources of waste satisfies the continuation requirement of the two-part test of
B.
We next consider whether the replacement of a source of waste would constitute an expansion. The nonconforming use of land as a landfill presents a unique problem: “by its continued use, [it] grows in size as well.” Bauer v. Waste Mgmt. of Conn., Inc., 662 A.2d 1179, 1192 (Conn. 1995). Compared to the typical limits on nonconformities, the continued use of a landfill creates a natural tension with “the well-established rule” that municipalities are not required to let nonconformities expand, and may restrict any existing nonconforming uses “in a way which will be conducive to their ultimately being phased out.” See Hawkinson v. Cty. of Itasca, 231 N.W.2d 279, 282 (Minn. 1975). The unique problem presented in this case requires us to reconsider the standards for determining
Hawkins v. Talbot is instructive because it deals with a business exercising a similar nonconforming right to excavate the earth. 80 N.W.2d at 864. The Talbots began operating a gravel pit on their property in 1940, excavating the earth by power shovel and, on one occasion, using a rock screen. Id. at 864–65. In 1953, the city of Coon Rapids passed a zoning ordinance that reclassified the Talbots’ land for residential use. Id. at 864. The ordinance permitted nonconforming uses of land to continue as long as the nonconforming use was not “enlarged or increased” and did not “extend[] to occupy a greater area of land” than the area occupied at the time of adverse zoning. Id. The Talbots continued removing sand and gravel from their land. Id. at 865. In 1955, the Talbots began using a rock crusher, which screened and crushed rock and sand as a part of their removal operation. Id. As the Talbots continued to excavate their property, the gravel pit grew in size. Id.
We determined that the landowner could upgrade his equipment so long as the new equipment was “merely an improvement over the previous method and did not constitute a change in the nature and purpose of the original use.” Id. at 866–67. Our holding recognized that landowners are not confined to exercising their nonconforming use rights with outdated or inefficient equipment if it is possible to make improvements that are consistent with the original use of their land.
We also considered whether increasing the size of the gravel pit violated the city’s ordinance. We acknowledged that “[i]f the [property owner] [were] to be limited to the
Other jurisdictions share similar concerns regarding the nonconforming rights of certain special use properties (such as quarries, gravel pits, and landfills), and have adopted a more flexible approach that takes the nature of nonconforming operations into account. See Bauer, 662 A.2d at 1192; Eddins v. City of Lewiston, 244 P.3d 174, 178 (Idaho 2010) (using a “flexible approach that focuses on the character of the alleged enlargement or expansion on a case-by-case basis”); Jones v. Town of Carroll, 931 N.E.2d 535, 537–38 (N.Y. 2010) (noting that “the use of property as a landfill, like a mine, is unique because it necessarily envisions that the land itself is a resource that will be consumed over time”); Chartiers Twp. v. William H. Martin, Inc., 542 A.2d 985, 989 (Pa. 1988) (upholding the right of the owner of a nonconforming landfill to increase the daily intake of solid waste); see also Point San Pedro Rd. Coal. v. Cty. of Marin, 245 Cal. Rptr. 3d 580, 584 (Cal. Ct. App. 2019); but see Twp. of Fairfield v. Likanchuk’s, Inc., 644 A.2d 120, 124 (N.J. Super. Ct. App. Div. 1994) (explaining that “simply because the nature of the use involves a diminishing asset does not necessarily justify its expansion”); Huckleberry Assocs., Inc. v. S. Whitehall Twp. Zoning Hearing Bd., 120 A.3d 1110, 1115 (Pa. Commw. Ct. 2015) (limiting the scope of a landowner’s nonconforming usе right to operate a surface mine and quarry to the “natural expansion” of that use).
Our holding today is consistent with the reasoning in Hawkinson and Claussen. In Hawkinson, a multi-lot resort owner wished to expand his unzoned lakeshore property for recreational-commercial purposes when the area was zoned for residential use. 231 N.W.2d at 280. We assessed the landowner’s actual use of property, lot by lot, without regard for his comprehensive, but unrealized, design. Id. at 282. Ultimately, we upheld the application of zoning restrictions. Id. We noted, “[w]hile it is true that [the landowner’s] long-range plans have been frustrated, he is not prevented from carrying on at the same level [that was] obtained before the zoning ordinance was adopted.” Id. When the same reasoning is applied here, it is clear that precluding AIM Development from replacing its waste stream would do more than “frustrate” its long-term plans. Without new sources of waste, the landowner would be prevented from carrying on altogether.9
In Claussen, the landowner wished to enclose his nonconforming, open-air business. 203 N.W.2d at 324. The landowner asserted that the shelter would likely make the
Similarly, we have long recognized that the reasonable substitution of equipment used in the operation of a nonconforming business is not an expansion as long as the nature and purpose of the original use remains unchanged. See Hawkins, 80 N.W.2d at 866–67. We choose to treat the reasonable substitution of materials the same. See Eddins, 244 P.3d at 179 (allowing the reasonable substitution of materials and equipment).
The dissent argues that the change in the business structure of the landfill changes the nature and purpose of this nonconformity. We disagree. The City raises concerns about traffic patterns that are entirely speculative and unpersuasive. There is no indication in the record that converting the business structure of the landfill into an income-producing property will have any effect on the nature of the land use.
The dissent would extinguish the vested interests of a property owner because of a hardship that occurred on an entirely separate property, miles away, due to common
It is undisputed that the prior source of waste no longer exists, and that securing a new source of waste is necessary for continued operations. AIM Development’s proposal limits the new sources of waste to generators of nonhazardous, non-toxic industrial waste—the same category of waste stream as its prior source, and precisely the category of waste allowed by the ordinance of December 1984. Without addressing the other aspects of AIM Development’s proposal, we conclude that AIM Development’s proposed substitution of its sources of waste is reasonable and necessary, constituting a non-expansionary continuation of its nonconforming use.
Our holding today is confined to the issues presented. We therefore remand to the court of appeals for consideration and decision of the remaining issues.
For the foregoing reasons, we reverse the decision of the court of appeals and remand to the court of appeals for consideration and decision of the remaining issues.
Reversed and remanded.
AIM Development (USA), LLC, Appellant, vs. City of Sartell, Respondent.
A18-0443
STATE OF MINNESOTA IN SUPREME COURT
July 15, 2020
C O N C U R R E N C E & D I S S E N T
HUDSON, Justice (concurring in part and dissenting in part).
I agree with the court that the scope of a property owner’s nonconforming land use rights are determined by the uses lawfully existing at the time of an adverse zoning change, not by the terms of a state permit. But the court’s conclusion that
This case turns on the proper application of
The plain language of
I.
I begin with the plain language of the statute. The relevant portion of the statute reads as follows: “the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion.”
A.
The court’s strained interpretation cherry picks one word of the statute, “replacement,” and then finds a definition to go with it. It is a basic principle of statutory interpretation that the court should not read words in a statute in isolation. See Christensen v. State, 175 N.W.2d 433, 437 (Minn. 1970). The court must read each word in the context of the surrounding terms, taking care not to render any word meaningless. See Owens v. Federated Mut. Implement & Hardware Ins. Co., 328 N.W.2d 162, 164 (Minn. 1983) (“A statute should ordinarily be construed as a whole to harmonize all its parts and, whenever possible, no word, phrase or sentence should be deemed superfluous, void or insignificant.”). The court’s interpretation fails in both respects.
All of these terms refer to actions that address the condition of an object by either returning the object to its original status (repair, restoration, maintenance) or making it better (improve). But in each instance, the object remains-it “continue[s].” The first definition of “replace” in the court‘s preferred dictionary is consistent with this pattern: “[t]o put back into a former position or place.” Id. at 1489. And this pattern makes sense when considered in context of the statute as a whole. The statute allows property owners to continue the nonconforming land use that existed at the time of an adverse zoning change, including through repairs, replacements, maintenance, and improvements.
By failing to read the word “replacement” in context of the statute as a whole, the court‘s interpretation renders the word “continued” in subdivision 1(e) of the statute meaningless. If the court reads “replacement” to mean that a landowner can substitute the
Under the plain language of the statute, AIM Development may proceed with its proposed land use plans only if it seeks to continue the nonconforming use of the land that existed in 1989. AIM Development may undertake repairs, replacements, maintenance, or other improvements of that existing use. Here, the existing nonconforming use of the property at the time of the zoning change was a paper mill and a captive landfill. AIM Development is free to continue that use and make any necessary alterations to the paper mill and captive landfill consistent with the actions allowed by statute. AIM Development may not, however, substitute a commercial landfill for the paper mill and captive landfill because that action would not continue the nonconforming use that existed at the time of the adverse zoning change in 1989.
B.
In addition to abiding by the plain language of the statute, the court must also consider authority on nonconforming-land-use rights under Minnesota law. The court completely ignores the compelling argument made by the City of Sartell based on the decisions by the federal district court in Minnesota and the Eighth Circuit Court of Appeals in Northgate Homes, Inc. v. City of Dayton, which applied Minnesota law on nonconforming land use. See Northgate Homes, Inc. v. City of Dayton (Northgate Homes I), No. 3-94-178 (D. Minn. filed Mar. 7, 1996), aff‘d, Northgate Homes Inc. v. City of Dayton (Northgate Homes II), 126 F.3d 1095 (8th Cir. 1997).
The Eighth Circuit‘s decision is also consistent with persuasive authority on nonconforming land use rights. A court in Ohio determined that a property owner did not
AIM Development argues that a change in the business model of the landfill is not a substantial change in the use of the property because the landfill will continue to house nonhazardous industrial waste just as it did before the zoning change in 1989. The district court in Northgate Homes I considered a similar argument and properly rejected it: “Simply because sales of manufactured homes occurred somewhere within the borders of Dayton Park since the 1960s does not mean that Northgate‘s business activities on the current sales lot are also lawful.” Northgate Homes I, No. 3-94-178, Order at 12. In other words, a property owner cannot meet its burden to prove a “continued” nonconforming use by showing that the present or proposed nonconforming use is in the same general category as the use that existed at the time of the adverse zoning change. See id. (“To define the relevant property so broadly would contradict the purpose of the nonconforming use doctrine.“). But without citing or even acknowledging Northgate Homes I and II, the court holds that AIM Development is continuing an existing nonconforming use because the company will accept “the same category of waste stream” as the waste deposited in the paper mill‘s captive landfill.
II.
The second question posed by
In Hawkins v. Talbot, we considered an action to enjoin the operation of a gravel pit in Coon Rapids. 80 N.W.2d 863 (Minn. 1957). The question was whether “the enlargement of the gravel pit and the use of [a] rock crusher constituted an extension of a ‘nonconforming use.‘” Id. at 865. We held that the property owners “did not violate the
Hawkins involved a continuation of the exaсt same use of the land as at the time of the adverse zoning change-a gravel pit-and the only question before us was whether the municipality could limit the physical size of the gravel pit and the use of certain equipment. Id. at 865-66. If AIM Development sought to operate a paper mill with a captive landfill, and only increase the volume of paper mill waste deposited in the landfill2 or substitute new equipment for old,3 that use of the property would be analogous to the facts of Hawkins. But that is not the case here. AIM Development seeks not only to significantly increase the amount of waste deposited in the landfill on an annual basis, the company also seeks to operate a fundamentally different type of business on the property. Our decisions in County of Freeborn v. Claussen, 203 N.W.2d 323 (Minn. 1972), and Hawkinson v. County of Itasca, 231 N.W.2d 279 (Minn. 1975), demonstrate that such a change in the nature of the land use is a critical factor in determining whether a change constitutes an “expansion.”
Claussen involved an action by a municipality to enjoin a property owner from constructing a building on his land. 203 N.W.2d at 324. The issue before the court was
We also focused on how physical changes to the property would have expanded a property owner‘s business in Hawkinson. We explained that the property owner could “carry on the precise business in which he was engaged” at the time of the zoning ordinance change, which was a “small recreational-commercial business on his lakeshore lots.” Hawkinson, 231 N.W. 2d at 280, 282. He could not, however, expand that business into a much larger resort. Id. at 282. Our decision emphasized that “[t]o permit such an expansion would do violence to the well-established rule that nonconforming uses are to be restricted in a way which will be conducive to their ultimаtely being phased out.” Id.
Thus, one of the key takeaways from our prior decisions is that we should consider more than a change in the physical size of a nonconforming use when analyzing the question of “expansion” under
Applying this rule, it is clear AIM Development‘s proposal would expand the existing nonconforming use of the property. The court‘s statement that there “is no indication in the record that converting the business structure of the landfill into an income-producing property will have any effect on the nature of the land use” is simply wrong. The City of Sartell has presented a wealth of evidence that AIM Development‘s proposal will have a significant effect on the use of the land. Specifically, the proposal will allow AIM Development to expand the nonconforming use of the land through the creation of a commercial landfill where any individual or business can pay to depоsit nonhazardous waste, and the facility will accept many more types of nonhazardous waste than what the paper mill deposited in its captive landfill.5 This is a fundamental change in the nature of the existing nonconforming land use.
Instead of following our precedent, the court cobbles together a series of unrelated points to justify the overall conclusion that AIM Development‘s plans are not an
The court first discusses Hawkins, Claussen, and Hawkinson. In each instance, the court takes substantial liberties with the case to support its holding that a property owner can expand an existing nonconforming use-an action prohibited by statute-as long as that expansion is somehow necessary to continue the use.
The court begins with Hawkins, quoting the following language in the decision: “If the defendant is to be limited to the area of land actually excavated at the time of the adoption of the ordinance, the restriction, in effect, prohibits any further use of the land as a gravel pit.” 80 N.W.2d at 865. The court implies that this was the basis for our decision to allow the property owner to continue to excavate the gravel pit. It was not. Our decision rested on the language of the zoning ordinance:
We are of the opinion that the phrase “occupy a greater area of land than that occupied by such use at the time of the adoption of this ordinance” should be interpreted, in the case of a diminishing asset, to mean all of that part of the owner‘s land which contains the particular asset, and not merely that area in which operations were actually being conducted at the time of the adoption of the ordinance. In other words, since the gravel here “occupied” a larger area than the part actually being mined at the time of the adoption of the ordinance, the entire area of the gravel bed could be used without constituting an unlawful extension of a nonconforming use.
Id. at 866. Contrary to the court‘s assertion, our decision in Hawkins does not stand for the proposition that expansion is allowed by way of a “flexible approach” to “special use”
The court then turns to our decision in Hawkinson. We ruled against the property owner in that case and explained that he could not expand the size of his resort operation,
Next is Claussen. The court claims that we denied the landowner‘s request to construct an enclosure for a nonconforming open-air business in Claussen because “a sheltered workspace was not required for the landowner to continue his nonconforming business.” We made no such holding in Claussen. We never stated that the owner would be entitled to enclose his open-air business if it was necessary to continue the existing nonconforming use of the land-and the court provides no citation оr quotation of Claussen to this effect.
Simply put: neither our precedent nor the statute allows expansion as long as that expansion is necessary to continue a nonconforming use of land. But even assuming that this is a valid inference from our decisions in Hawkins, Claussen, and Hawkinson, it does not support a decision in AIM Development‘s favor because the company does not need to create a commercial landfill to continue the existing nonconforming use of the land.
Ignoring our decisions, the court suddenly announces that it intends to treat the “reasonable substitution of materials” in the same manner as the “reasonable substitution of equipment.” To start, the court offers no justification for treating these actions in a
The court concludes by claiming that I would “extinguish the vested interests of a property owner because of a hardship that occurred on an entirely separate property, miles away, due to common ownership.” There are two problems with this assertion.
First, AIM Development does not have a “vested interest” or “vested right” to proceed with its proposed land use plans because those plans do not fall within the scope of
Second, I do not seek to “extinguish” AIM Development‘s vested property right based on a “hardship,” as the court claims. The “hardship” provision cited by the court allows a landowner to rebuild a nonconforming use partially destroyed by “fire or other peril.”
But at the same time, the court accuses me of “overlooking” the law on hardship in Minnesota. If I overlook it, I do so because it is irrelevant to the question at hand. AIM Development does not seek to rebuild the nonconforming use-the paper mill and captive landfill-partially destroyed by a hardship. The “hardship” provision has no relevance in this instance.
It is instead the court that overlooks an important aspect of the law of nonconforming land use rights, which is that public policy favors the restriction of nonconforming land uses “to increase the likelihood that such uses will in time be eliminated due to obsolescence, exhaustion, or destruction.” Claussen, 203 N.W.2d at 325; see also White v. City of Elk River, 840 N.W.2d 43, 52 (Minn. 2013) (acknowledging the “policy informing the nonconformity doctrine” set forth in Claussen). Rather than increasing the likelihood that the nonconforming use of the property will end, the court‘s decision аllows AIM Development to operate a commercial landfill on the property that will dramatically expand and prolong a nonconforming use of the land.
In sum, the court‘s decision turns subdivision 1e of
CHUTICH, Justice (concurring in part and dissenting in part).
I join in the concurrence and dissent of Justice Hudson.
Notes
The decision by the Connecticut Supreme Court cited by the court concerned an increase in the height of a landfill over the 90 feet maximum allowed by the applicable zoning ordinance. See Bauer v. Waste Mgmt. of Conn., Inc., 662 A.2d 1179, 1189 (Conn. 1995). The decision makes no mention of a special rule that applies only to properties like “quarries, gravel pits, and landfills.” The facts and holding of the case also cut against the court‘s reasoning. The Bauer court ruled against the property owner because it could not prove that the landfill stoоd over 90 feet high at the time of the change in the zoning ordinance. Id. at 1189-90. Applying that logic here, AIM Development should lose because it cannot prove that its predecessor in interest used the property as a commercial landfill in 1989.
The Supreme Court of Pennsylvania does not apply a special rule for properties like landfills. See Twp. of Chartiers v. William H. Martin, Inc., 542 A.2d 985 (Pa. 1988). In Township of Chartiers, the court ruled in favor of the property owner because the owner did not seek to change “the intended use of the property.” Id. at 989. Again, under this rule AIM Development would lose, because the company is changing the intended use of the property from an industrial operation with a captive landfill to a commercial landfill.
Finally, the court cites a decision by one of the intermediate courts of appeal in California, Point Pedro Rd. Coal. v. County of Marin, 245 Cal. Rptr. 3d 580 (Cal. Ct. App. 2019). There is no evidence in the decision of a special rule for certain types of properties. More importantly, the court held that the property owner could not proceed with its development plans because the plans were not “within the scope of the existing nonconforming use” and would impermissibly expand the nonconforming use. Id. at 586. The same is true in this case.