This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
City of Minneapolis,
Filed September 13, 2005
File No. AP 04-5044
Randall D.B. Tigue, Randall Tigue Law Offices, P.A., 3960
Minnehaha Avenue South, Suite 100, Minneapolis, MN 55406 (for appellant)
Jay M. Heffern, Minneapolis City Attorney, Joel M. Fussy,
Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN
55402-2453 (for respondent)
and decided by Kalitowski, Presiding Judge; Worke, Judge; and Parker, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s affirmance of the
City of Minneapolis’ denial of appellant’s request for a nonconforming-use
certificate, appellant Azzam Sabri argues (1) the record does not show that he
abandoned or discontinued the legal but nonconforming use of his property; and
(2) the city is estopped from enforcing its ordinance prohibiting multiple principal
residential structures on a single residential lot. We affirm.
D E C I S I O N
is the owner of a single lot in the City of Minneapolis
that contains two residential structures:
1309 Franklin Avenue West
(1309 Franklin) and 2000 Fremont Avenue South (2000 Fremont). The house at 1309 Franklin
was moved onto the lot in 1908, and the house at 2000 Fremont was built on the lot in 1911. Appellant purchased the lot in 2001.
Minneapolis adopted its first zoning code in
1924. Under the applicable provisions of
that code, two residential structures were allowed on a single lot. In 1963, Minneapolis amended its zoning code to
prohibit more than one principal residential structure per lot. This prohibition continues in the current
version of the Minneapolis Code of Ordinances, which was enacted in 1999. See Minneapolis, Minn., Code of Ordinances § 535.190 (1999)
(limiting number of principal residential structures to one per lot). Because the presence of two principal
residential structures on a single lot was lawful when both homes were built on
the lot, the use of the lot was at one time, classified as legal but nonconforming
under the Minneapolis Code of Ordinances.
See Minneapolis, Minn., Code
of Ordinances § 531.20 (1999) (stating that “[l]egal nonconforming uses and
structures shall be allowed to continue so long as they remain otherwise
lawful, subject to the provisions of this chapter”). But
the Minneapolis Zoning Office determined the house at 1309 Franklin was abandoned for at least one year
between 1995 and 1998, and its use as a principal residence was
discontinued. As a result, the use of
the lot lost its legal but nonconforming status under the code, and appellant
was forced to apply for a nonconforming-use certificate from the Minneapolis
Board of Adjustment (BOA) in order to use both homes as principal
residences. The BOA denied appellant’s
application, and appellant appealed to the Minneapolis City Council. On September 25, 2003, the city
council issued a written decision denying appellant’s application.
Appellant challenges the city council’s
finding that the use of the lot lost its legal but nonconforming status during
the previous owner’s tenure. Appellant
argues that the nonconformity here “consists of the presence of more than one
principal residential structure on a single lot” and that “the only way this
non-conformity could be discontinued or abandoned would be for the property
owner to tear one of the structures down, or physically remove it from the
property.” Therefore, appellant argues,
the legal but nonconforming status was not discontinued or abandoned even if no
one lived in 1309 Franklin
from 1995 through 1998. We
This court is required to review a
governmental entity’s decision on zoning matters independent of the findings
and conclusions of the district court. Town
of Grant v. Washington County, 319 N.W.2d 713, 717 (Minn.
1982) (citing Nw. Coll. v. City of Arden Hills, 281 N.W.2d 865, 868 (Minn. 1979)). And this court must afford great deference to
a governmental entity’s factual findings.
See VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503,
509 (Minn. 1983) (courts reviewing decisions
of this nature are not to substitute their judgment for that of the
decision-making body); Frank’s Nursery Sales, Inc. v. City of Roseville,
295 N.W.2d 604, 608 (Minn.
1980) (determination of facts is for the governmental entity). In cases where the interpretation of an
ordinance is at issue, this court looks to the ordinance itself to determine
whether a governmental entity’s decision was unreasonable or arbitrary and
capricious. White Bear Docking &
Storage, Inc. v. City of White Bear Lake,
324 N.W.2d 174, 176 (Minn.
issue here is whether the previous owner’s failure to occupy 1309 Franklin for a period of
more than one year constitutes an abandonment under the Minneapolis Code of
Ordinances. See Frank’s Nursery, 295 N.W.2d at 608 (determination of
facts—e.g., whether 1309 Franklin
was occupied—is for the governmental entity).
Section 531.40 of the Minneapolis Code of Ordinances, entitled “[l]oss
of nonconforming rights,” states that
[i]f a nonconforming use or structure is
discontinued for a continuous period of more than one (1) year, it shall be
deemed to be abandoned and may not thereafter be reestablished or resumed. Any
subsequent use of the land or structure shall conform to the requirements of
the district in which it is located.
Minneapolis, Minn., Code of Ordinances § 531.40(a)(1)
(1999). Notwithstanding the statement
that if a nonconforming use is discontinued for more than one year, “it shall
be deemed to be abandoned” and lose its legal status, appellant argues that the
failure to occupy 1309 Franklin
for more than one year cannot constitute an abandonment because both 1309
Franklin and 2000 Fremont remained on the lot at all times during this
period. The presence of both houses,
appellant argues, is the nonconformity at issue. Based on the plain language of the
Minneapolis Code of Ordinances, we disagree.
First, it is undisputed that the
City of Minneapolis
has not ordered appellant to tear down either of the homes. Rather, the city has refused to issue
appellant a nonconforming-use certificate that would allow him to have both
homes occupied as principal residential structures. Thus, the issue, as presented by appellant, is clearly one of use of the structures on the lot.
Accordingly, it follows that the previous owner’s failure to use the
property in the same manner—i.e., his failure to have both of the homes occupied
as principal residential structures for more than one year—would result in the
loss of any legal but nonconforming-use status for the lot.
conclusion is supported by the plain language of the Minneapolis Code of
Ordinances. The code provides
separate definitions for nonconforming uses and nonconforming structures. Nonconforming use is defined as follows:
Nonconforming use, legal. A use of land
or structures, lawfully existing on the effective date of this ordinance or
amendment thereto that currently is not allowed, or that does not comply with
one (1) or more of the regulations applicable in the zoning district in which
it is located.
Minneapolis, Minn., Code
of Ordinances § 520.160 (1999) (definitions).
We note that the definition of nonconforming use is broad and applies to
uses of land or structures that do
not comply with the applicable zoning regulations. This language supports our conclusion that
the failure to use both homes as principal residential structures for a period
of more than one year should result in loss of legal but nonconforming status
under the code because appellant is asking for use of both structures as
Appellant’s argument is also
contradicted by the code’s definition of “nonconforming structure.” Nonconforming structure is defined as
Nonconforming structure, legal. A
structure or portion thereof, lawfully existing on the effective date of this
ordinance or amendment thereto that does not comply with one (1) or more of the
bulk regulations applicable in the zoning district in which it is located.
Minneapolis, Minn., Code
of Ordinances § 520.160 (definitions). Thus,
the term “nonconforming structure” applies only to structures that do not
comply with one or more of the “bulk regulations” in Minneapolis.
The phrase “bulk regulations” is defined in the code as follows:
Bulk regulations. Standards and controls
that establish the maximum size of structures and the buildable area within
which structures may be located, including height, floor area ratio, gross
floor area, lot coverage and yard requirements, but excluding residential
Minneapolis, Minn., Code
of Ordinances § 520.160 (definitions).
From this definition it is clear that “bulk regulations” apply only to
the size and buildable area within which structures may be located. And the definition of bulk regulations also
expressly excludes “residential density regulations.” The issue here—the city council’s refusal to
grant a nonconforming-use certificate to allow appellant to have two homes
occupied on one lot—is one of residential density. Therefore, a “bulk regulation,” and hence a
“nonconforming structure,” determination are not at issue.
We conclude that the issue here involves
a nonconforming use of two structures and not the existence of two
nonconforming structures on the lot.
Thus, the city council’s determination that the lot owned by appellant
lost its nonconforming-use status by virtue of the abandonment of 1309 Franklin for more than
one year was not arbitrary or unreasonable.
also argues, in the alternative, that the city should be estopped from
enforcing its own ordinance. When
justice demands, estoppel may be applied against a local government exercising
its zoning powers. Ridgewood Dev. Co.
v. State, 294 N.W.2d 288, 292 (Minn.
1980); Mesaba Aviation Div. v. County
of Itasca, 258 N.W.2d 877, 880 (Minn. 1977). “[E]stoppel is available as a defense against
the government if the government’s wrongful conduct threatens to work a serious
injustice and if the public’s interest would not be unduly damaged by the
imposition of estoppel.” Ridgewood, 294 N.W.2d at 293 (quoting United
States v. Lazy FC Ranch, 481 F.2d 985, 989 (9th Cir. 1973). And if there is no wrongful conduct by the
government, this court’s inquiry should stop.
This court has “recognized the heavy
burden of proof placed on a party bringing an estoppel claim against a
governmental entity.” Rose Cliff
Landscape Nursery, Inc. v. City of Rosemount, 467 N.W.2d 641, 644 (Minn.
App. 1991). We have also held that “[a]
property owner is charged with knowledge of whether a local zoning ordinance
permits construction undertaken on the property.” Stotts v. Wright County, 478 N.W.2d
802, 805 (Minn. App. 1991), review denied (Minn. Feb. 11, 1992).
Here, appellant purchased a single
lot with two residential homes on it.
One of the homes, 1309 Franklin,
was unoccupied for at least one year between 1995 through 1998. See Frank’s Nursery, 295 N.W.2d at 608 (determination of facts
is for the governmental entity). The record indicates that, on October
19, 2001, the Minneapolis
Zoning Office sent appellant a letter informing him that “the property located
at 1309 W. Franklin Ave.
has previously been identified as being vacant for more than one (1) year” and
that he would therefore be required to obtain “a Non-Conforming Use Certificate
before any building permits could be issued.”
The zoning office also forwarded two letters, dated November 4, 1998,
and February 23, 1999, which were sent to a previous contract-for-deed
purchaser of the lot, informing him that a nonconforming-use certificate would
be required before the city would issue a rental license for 2000 Fremont.
The record further indicates that,
despite the zoning office’s statements in its October 19, 2001 letter to
appellant, appellant subsequently applied for and was granted a number of building
permits to make improvements to both houses.
But it was not until June 2003 that appellant applied for a
nonconforming use certificate that would have allowed him to have both homes
occupied as principal residences. And nothing
in the record indicates that the city was aware, when it granted appellant the
permits to improve the homes, that appellant intended to have both homes
occupied as principal residences. While
the city’s granting of building permits without appellant having obtained a
nonconforming-use certificate may indicate carelessness on the part of those
who issued the permits, such conduct is not the basis for estoppel when
appellant had previously been informed of his need to apply for a nonconforming-use
certificate. We thus conclude that this
is not an appropriate situation for this court to exercise its equitable