06-23-1980 Planning Packet - Laserfiche WebLink

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aunty tjttdice. 'wn his •city in County, uid hit Jy used d repair Kl. the e which at In upersed- ■fee bom red to be linances , repair, lent was defend* With two mtaininf 4 of the table for brother is alto a property. t began storage aipaat, be open, cial in* tion was tg ordi* snt peti* of Com* ig Advi- ; of bit -1, light Mvitory )f reaon* county pted the petition. owledge itruction naterialt buildiog FlITT or FREEBOBN ?. 0LAU88EK CMettmK.waan Minn. 325 (1] 1. The county argues that defend ant should have taken a direct appeal to the district court from the action of the county board denying hit petition to rexone and that, in the absence of such appeal, he is precluded from raising the defense that the county toning ordinance, as applied to him, is unconstitutional. We disagree with this contention and adopt the reasoning of County of Lake v. MacNeal, 24 III.2d 253, 181 K.E.2d 85 (1962). That case involved somewhat similar facts, and the same con tention was made that the defendant should have pursued his claim of nnconsti- tutionality through an appeal from the leg islative determination rather than as a de fense in a separate action commenced by the county. The Illinois court suted (24 lll2d 260, 181 N.E2d 90): M •^ So loni: as dOcal authoriiies institute an action, a defendant should be entitled to defend on the p’ound of the invalidity of the ordinance and to have the issue determined If it arere to be otherwise, the result could be that judi cial machinery would be used to enforce an ordinance that is unconstitutional'* We do net condone the action of defendant in continuing the construction of the build ing after the denial of his rexomrsg peti tion, but we conclude that he should not be dep.*ived of the right to raise constitutional issues in defending this action. 2. An important question, and one of first impression in Minnesota, it whether the construction of the building was an ex pansion or extension of the nonconforming use. The Freeborn County Zoning Ordinance, I 423, provides: *The nonconforming use of land wher^ a structure thereon is not so em ployed, existing at the time Jiat this Or dinance becomes effective, may be con tinued provided: 1. The nonconforming use of land shall not ta any way be ex panded or extended either on the same or adjoining property. 2. That if the nonconforming use of land, existing at the time this Ordinance became effec tive, is thereafter discontinued or changed, then the future use of such land shall be in conformity with the pro visions of this Ordinance.” (Italics sup plied.) [2] A residential toning ordinance may constitutionally prohibit the creation of uses which are nonconforming, but exist ing nonconforming uses must either be permitted to remain or be eliminated by use of eminent domain. Hawkins v. Tal bot, 248 Minn. 549, 80 N.W2d 863 (1957). It is not reouired. however, that preexist? ing nonconforming uses be allowed to ex pand or enlarge. '1 ne public policy behind that clocthne is to increase ^e 3Ianu3^se^wniinnme be eliminated ^uMoobsoiScSicerTxhaustion or oestruc- tion. This in turn will lead tO-a^nni(gng^ use of the land consistent with the overall ^^omprehra We have found no Minnesou cases di rectly in point, but there are cases from other jurisdictions that are helpful In Shannahan v. Ringgold, 212 Md. 481, 129 A2d 797 (1957), the landowners had erect ed a large warehouse, proposing to use the ground floor for storage of equipment, ve hicles, and mschinery —the .-ame uses to which the open land had been put prior to the erection of the building. The business was in a residentially toned area but was a valid nonconforming use. The toning or dinance was no more restrictive than the one involved here. The Maryland Court of Appeals stated that they could find nothing in the ordinance that would permit the use of the new building merely because a similar use had been esUblished on open land and held that the construction of a new building was an unlawful extension of a nonconforming use. Weber v. Pieretti, 72 N.J.Super. 184, 178 A2d 92 (1962), involved an addition to an existing building. The contention was that the addition was designed to park trucks and to carry on the same activities which d W if t J