05-28-1991 Council Packet - Laserfiche WebLink

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~ • “ • • ” • * C* • ““ • • “ “ • ~ • Mr. Mark Bernariion May 9, 1991 Page Two "Whenever a lawful nonconforming use of a structure or land is discontinued and remains discontinued for a period of twelve (12) months, any future use of said structure or land shall be In conformity with the provisions of the Zoning Chapter," While the Orono Municipal Code does not say "for any reason" as did the Minneapolis code in the recent decision the Orono code is mandatory in its language that, "any future use of said structure or land shall be in conformity wTth the pro<Msions of the Zoning Chapter." The applicant in this case has admitted that there has been no business established within the meaning of the conditional use, but, rather, argued that because the lake was low, there was sufficient business impediment to cause a hardship and to produce an "involuntary" discontinuance. Applicant further cited law from other states. The City Attorney's memo indicated that no such case existed in Minnesota and that the law of other states might therefore be successfully i:sed by the applicant. In my opinion, this case changes that aspect of the deliberations made by the City Council in that a case has now been decided in Minnesota whicn, if anything, presents a much stror:gi;- argument for involuntary discontinuance than that which can made by the applicant in applicant for 1960 Shoreline, The reason is that, unlike the involuntary discontinuance argued by applicant, the applicant in the City of Minneapolis case was"prohibited from proceeding by a Court ordered injurction. it is clear that if a Court ordered injunction does not constitute an involuntary discontinuance or a hardship, the argument that the water level of Lake Minnetonka could do so is much weaksr. Nevertheless, the City’s resolution cites the watur level as a rationale of justification. The oounterpoint of the City's current position is to recorsider the granting of the conditional use perniit for 1960 Shoreline Drive and to deny s.<me on the basis of this recent decision and the plain meaning interpretation of City Ordinance 10.3, Suhd. Se. As a former City official and an attorney, it Is my opinion that the City would be on far mor^ defensible ground were it to deny the conditional use permi; light of this case and in light of its ordinance than it v d be to adopt an interpretation that has so recently been consi^’ered and declt"’‘ed erroneous by the Court of Appeals, in terms of expenditure of legal fees, this could make a significant legal difference to the City, The scope, of appeal on a denial of this • ^ition^-i use permit at 1960 ‘>horel,ne Drive would place the ".v in the position of only having to defend whether its . "arbitrary and capricious" rather than whether of the ordinance was in error. i W 4. lo" was in i'erpretat ion . OT*. 2