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M r: .s n r H i. H :.t" <br />Thomas J. Barrsr.•. <br />May 21, 1991 <br />Page Two_ _ _ _ _ _ _ <br />Aa you raquaec<ac1, I will conur.ant on the April 17, 1991 <br />case of State of Minne60<-a by Mxnnoapoiio Park Park Lovers, ot al <br />V. City of Minneapolis and Lake Calhoon Associates, Minn. Ct. App. <br />C9-Vu-2055, that Mr. Nettles referred toT Tlie CoTTney of Isanti v. <br />Mary Ann Peterson case, which was a case decided after the case <br />jlr. Nettles referred to the City Council, also supports our posi­ <br />tion. That case was filed on Hay 7, 1991, court file C0-90-25QQ. <br />First of all, in regard to the Lake Calhoun Associates case, <br />the City of Minneapolis orJi fiance is different front Ocono's. It <br />provides for a termination of a conditional use permit on a lapse <br />of use "for any reason", as Mr. Nettles points out. Addi L ion.nl ly, <br />the reason the property was not used was because the property <br />Owner did not have legal eight to use the property without first <br />obtaining the easements from other third parties. The easement <br />issue was litigated for over two years, and the property was not <br />put to any use because the property owner did not have a legal <br />right to us«> the property. In cofftrast to that case, Smith's Bay <br />did have Uh* legal right to use the property and did not need any <br />other third party's permission. <br />More Importantly, Mr. Nettles misstates the record concerning <br />my client's use of his property. My client did use tlie property <br />for some purposes in conformity with, his conditional use. He <br />obtained a building permit from Orono, remodeled and improved the <br />property (investing $00,000), and had some commercial use also. <br />However, because of the depressed state of the marina-related <br />business on Lake Minnetonka, he could not put his property to full <br />utilization. When I appeared in front of the council, I mentioned <br />that to Mr. Nettles and )ie was of tlie opinion that a minor use was <br />not sufficient. I think he is wrong on that point too. <br />Tlie leant 1 County case is more directly In point and supports <br />the theory ot involuntary disconLinuance that we relayed to the <br />City Council. In that case, there was a finding by the trial <br />court of discontinued use covering an 11-year span. The court did <br />uphold the finding of termination by reason of discontinuance <br />under those facts. In so holding, the court stated as follows: <br />"Where a nonconforming use has bean dormant for <br />longer than one year, a presumption of Intent <br />to abandon is proper. It ameliorates the muni­ <br />cipality's severe burden of having to prove