This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Michael Faber,





City of Crystal,



Filed January 23, 2007


Shumaker, Judge


City of Crystal

Citation No. 3342



Allen D. Barnard, Edward P. Sheu, Best & Flanagan, LLP, 225 South Sixth Street, Suite 4000, Minneapolis, MN 55402 (for relator)


James J. Thomson, Mary D. Tietjen, Bryan D. Shirley, Kennedy & Graven, Chartered, 470 U.S. Bank Plaza, 200 South Sixth Street, Minneapolis, MN 55402 (for respondent)



            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges a hearing officer’s determination that outdoor storage on his property is unlawful because he failed to apply for a conditional use permit prior to the property’s rezoning to a residential classification in 2004.  Since the city failed to present any evidence that outdoor storage was improper prior to 1981 zoning changes requiring a permit for such use, and because relator presented uncontroverted evidence that outdoor storage has consistently existed on the property since the 1950s, we reverse. 


            This is an appeal from a municipal hearing officer’s determination that relator Michael Faber violated city ordinances by storing inoperable and unlicensed motor vehicles and other items outdoors on his commercial property.

            Respondent City of Crystal cited Faber in May 2005 for violating a city code provision that prohibits the storage on one’s property of abandoned, inoperable, unlicensed motor vehicles and other items of litter, and for violating a city zoning ordinance prohibiting the outdoor storage of those things within an R-1 zone, which is the zoning classification for Faber’s land.

            The evidence showed that Faber bought this property in 1993 to use as an accessory to his wife’s assembly and packaging business and for the storage of vintage motor vehicles which he collects, restores, and sells.  The previous owner used the property for his appliance business.

            At the time of Faber’s purchase, there were stored outside on the property vehicles, snow-removal equipment, campers, and refrigerators and related parts.  There had been outside storage of such items on the property since the 1950s.  At least since 1973, the property had been fenced and screened from public view.

            In 1981, the city zoning code was revised so as to classify the Faber property as a B-4 Community Commercial District.  That classification permitted the outdoor storage of items such as those in question but only as an accessory to the principal business use of the property and only if a conditional use permit had been granted.  Neither Faber nor any previous owner had ever obtained a conditional use permit for outdoor storage.

            The zoning code was again revised, and in 2004 Faber’s property fell within an R-1 classification, which does not permit outdoor storage as an accessory use or other conditional use.  But the code did contain a provision allowing exterior storage if the property was fully screened from view.

            As of the date of the hearing, Faber’s wife’s business had been discontinued; the property was screened from public view by a high fence; and Faber stored inoperable, unlicensed motor vehicles and other operable items outside on the land.

            Contending that his use of his property for outside storage is a nonconforming use that predates the code enactment and revisions making such use impermissible, Faber appealed. 


In upholding the city’s citations of Faber, the hearing officer concluded that “[w]hile it is true that Mr. Farber [sic] had a nonconforming use, under Minnesota law, the use of real property must be ‘lawfully existing’ at the time of the zoning change[]” and “Mr. Farber [sic] needed to request a conditional use permit for the nonconforming use.”

We give deference to the quasi-judicial decisions of administrative hearing officers and will uphold them unless they are unconstitutional, beyond the officers’ jurisdiction, procedurally defective, arbitrary and capricious, erroneous in law, or unsupported by substantial evidence.  Carter v. Olmsted County Hous. & Redev. Auth., 574 N.W.2d 725, 729 (Minn. App. 1998).

“A residential zoning ordinance may constitutionally prohibit the creation of uses which are nonconforming, but existing nonconforming uses must either be permitted to remain or be eliminated by use of eminent domain.”  County of Freeborn v. Claussen, 295 Minn. 96, 99, 203 N.W.2d 323, 325 (1972) (citing Hawkins v. Talbot, 248 Minn. 549, 80 N.W.2d 863 (1957)).  In a later case, the supreme court held 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 St. Paul, 353 N.W.2d 138, 140 (Minn. 1984).

Both state statutory law and the Crystal ordinance are in accord with Hooper by providing that a nonconforming use of property that lawfully preexisted a zoning or other code change may continue.  See Minn. Stat. § 462.357, subd. 1e (2004); City of Crystal, Minn., City Code § 515.01, subd. 8(b) (2004).

The city contends that Faber’s outdoor storage use of the property has never been lawful and thus Faber is not entitled to the benefit of the law permitting him to continue with his nonconforming use.  Faber argues that the 1981 version of the city’s code permitted outdoor storage of materials and equipment if the storage area was fully screened, and, in any event, the city failed to show that the use of the property that preexisted Faber’s purchase was unlawful.  Likewise, the city failed to show that Faber’s use that preexisted the 1993 and 2004 zoning and code changes was unlawful.

The city’s evidence was provided by James Zimmerman, the city’s Code Enforcement and Zoning Administrator.  He began his job on October 1, 2004, and became aware of issues with Faber’s land in May 2005.  He testified that he was not familiar with city code and zoning provisions prior to beginning his job and was not aware of the condition of the Faber property before that time.  Nearly all of his testimony related to the condition of the Faber property on and after May 11, 2005.

By contrast, Faber’s evidence, coming through his own testimony and that of his wife, showed that the property was used for outside storage as early as the 1950s, well before 1981, and that use continued through and beyond Faber’s 1993 purchase.

Thus, the record before us shows that the property was used for outside storage between the 1950s and 1981, but does not indicate whether that use was lawful or unlawful.  The record shows that in 1981 a code enactment made the use nonconforming and unlawful without a conditional use permit, which could be granted only if the storage was an accessory to a principal business use.  In 1993, there was another code revision, but the evidence through Zimmerman revealed that exterior storage was permissible with full screening.  Finally, the 2004 code revision appeared simply to prohibit the property to be used as Faber was using it.

The hearing officer correctly concluded that, in order for a nonconforming use of land to be permissible, the use must have been lawful at the time the law that rendered it nonconforming came into existence.  But the hearing officer’s implicit conclusion that Faber’s nonconforming use was unlawful “at the time of the zoning change” is unsupported by any evidence, let alone substantial evidence.  We cannot presume that a use that existed from the 1950s until 1981 was unlawful.  The more reasonable assumption is that such use was lawful, and the hearing officer’s conclusion is without evidentiary support.  The evidence presented at the hearing supports the conclusion that Faber’s use of his property for outdoor storage existed continuously from the 1950s through the hearing date, and there was no showing that this use became unlawful until after it had existed for many years.

Our decision should not be taken as a comprehensive limitation on municipal police power and the propriety of municipal regulation of land use.  Rather, our decision is confined to the review of this record, and we find the record to be deficient to support the hearing officer’s dispositive conclusion.