11-26-1990 Council Packet - Laserfiche WebLink

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MESHBESH ER. SIXGER Sr SPENCE. LTD. Orono City Council November 19, 1990 Paae Two to exercise their rights under the conditional use permit. The renewal requirement was included solely as a monitoring mechanism for the City's zoning board. SBM did obtain a building permit within one year (September 1, 1987) andinide several improvements to the property at a substan tial cost. Having complied with this requirement, ^he conditional use permit cannot be said to have expired. Second, the allowed use was not abandoned. Involuntary dis continuance of a permitted use does not result in abandonment. Abandonment requires a clear intent and an overt act or omission that clearly mamifests the voluntary decision to abandon the use. See Norton Shores v. Carr, 265 N.W.2d 802, 805 (1978). SBM lacked the’ necessary intent; to the contrary, it performed substantial renovation and construction with the City's knowledge and consent. It also tried to lease the property out. Furthermore, the absence of an overt act which clearly manifests such intent does not exist. SBM did not abandon the commercial use allowed by the conditional use permit. The fact that interruption of use was involuntary is of mater ial significance in determining whether there was an intentional abandonment of the use. Temporary suspension of the use, for a reason beyond the owner's control, does not constitute abandonment. Precedential case law suggests that an involuntary cessation of the use, due to an unfavorable business climate, is an involuntary dis continuance and does not result in abandonment. SBM was involun tarily forced to discontinue the permitted use of the property due to the exigencies of the poor local business climate which resulted from the severely lowered Lake Minnetonka water levels. In the past, the City has considered economic hardships rela ted to this property, due to circumstances out of the owner's con trol. The City, at that time, "expanded" the property's allowed use from a gas station to a transmission shop. (See paragraph 30 of Proposed Resolution). Similarly, if there has been a gap in use now, it was due to the historically low Lake Minnetonka water levels, which virtually destroyed all boating related businesses. There being no intent to abandon the permitted commercial use of the property, no overt act demonstrating such intent, and no voluntary discontinuance of the use, a claim of abandonment does not lie. Therefore, if the current request for boat sales and