Azzam Sabri, Appellant, vs. City of Minneapolis, Respondent.

Azzam Sabri, Appellant, vs. City of Minneapolis, Respondent. A05-96, Court of Appeals Unpublished, September 13, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-96

 

Azzam Sabri,

Appellant,

 

vs.

 

City of Minneapolis,

Respondent.

 

Filed September 13, 2005

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. AP 04-5044

 

Randall D.B. Tigue, Randall Tigue Law Offices, P.A., 3960 Minnehaha Avenue South, Suite 100, Minneapolis, MN 55406 (for appellant)

 

Jay M. Heffern, Minneapolis City Attorney, Joel M. Fussy, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402-2453 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            On appeal from the district court's affirmance of the City of Minneapolis' denial of appellant's request for a nonconforming-use certificate, appellant Azzam Sabri argues (1) the record does not show that he abandoned or discontinued the legal but nonconforming use of his property; and (2) the city is estopped from enforcing its ordinance prohibiting multiple principal residential structures on a single residential lot.  We affirm.  

D E C I S I O N

            Appellant is the owner of a single lot in the City of Minneapolis that contains two residential structures:  1309 Franklin Avenue West (1309 Franklin) and 2000 Fremont Avenue South (2000 Fremont).  The house at 1309 Franklin was moved onto the lot in 1908, and the house at 2000 Fremont was built on the lot in 1911.  Appellant purchased the lot in 2001. 

Minneapolis adopted its first zoning code in 1924.  Under the applicable provisions of that code, two residential structures were allowed on a single lot.  In 1963, Minneapolis amended its zoning code to prohibit more than one principal residential structure per lot.  This prohibition continues in the current version of the Minneapolis Code of Ordinances, which was enacted in 1999.  See Minneapolis, Minn., Code of Ordinances § 535.190 (1999) (limiting number of principal residential structures to one per lot).  Because the presence of two principal residential structures on a single lot was lawful when both homes were built on the lot, the use of the lot was at one time, classified as legal but nonconforming under the Minneapolis Code of Ordinances.  See Minneapolis, Minn., Code of Ordinances § 531.20 (1999) (stating that "[l]egal nonconforming uses and structures shall be allowed to continue so long as they remain otherwise lawful, subject to the provisions of this chapter").  But the Minneapolis Zoning Office determined the house at 1309 Franklin was abandoned for at least one year between 1995 and 1998, and its use as a principal residence was discontinued.  As a result, the use of the lot lost its legal but nonconforming status under the code, and appellant was forced to apply for a nonconforming-use certificate from the Minneapolis Board of Adjustment (BOA) in order to use both homes as principal residences.  The BOA denied appellant's application, and appellant appealed to the Minneapolis City Council.  On September 25, 2003, the city council issued a written decision denying appellant's application. 

I.

Appellant challenges the city council's finding that the use of the lot lost its legal but nonconforming status during the previous owner's tenure.  Appellant argues that the nonconformity here "consists of the presence of more than one principal residential structure on a single lot" and that "the only way this non-conformity could be discontinued or abandoned would be for the property owner to tear one of the structures down, or physically remove it from the property."  Therefore, appellant argues, the legal but nonconforming status was not discontinued or abandoned even if no one lived in 1309 Franklin from 1995 through 1998.  We disagree.    

This court is required to review a governmental entity's decision on zoning matters independent of the findings and conclusions of the district court.  Town of Grant v. Washington County, 319 N.W.2d 713, 717 (Minn. 1982) (citing Nw. Coll. v. City of Arden Hills, 281 N.W.2d 865, 868 (Minn. 1979)).  And this court must afford great deference to a governmental entity's factual findings.  See VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 509 (Minn. 1983) (courts reviewing decisions of this nature are not to substitute their judgment for that of the decision-making body); Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980) (determination of facts is for the governmental entity).  In cases where the interpretation of an ordinance is at issue, this court looks to the ordinance itself to determine whether a governmental entity's decision was unreasonable or arbitrary and capricious.  White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn. 1982).

            The issue here is whether the previous owner's failure to occupy 1309 Franklin for a period of more than one year constitutes an abandonment under the Minneapolis Code of Ordinances.  See Frank's Nursery, 295 N.W.2d at 608 (determination of factse.g., whether 1309 Franklin was occupiedis for the governmental entity).  Section 531.40 of the Minneapolis Code of Ordinances, entitled "[l]oss of nonconforming rights," states that

[i]f a nonconforming use or structure is discontinued for a continuous period of more than one (1) year, it shall be deemed to be abandoned and may not thereafter be reestablished or resumed. Any subsequent use of the land or structure shall conform to the requirements of the district in which it is located.

 

Minneapolis, Minn., Code of Ordinances § 531.40(a)(1) (1999).  Notwithstanding the statement that if a nonconforming use is discontinued for more than one year, "it shall be deemed to be abandoned" and lose its legal status, appellant argues that the failure to occupy 1309 Franklin for more than one year cannot constitute an abandonment because both 1309 Franklin and 2000 Fremont remained on the lot at all times during this period.  The presence of both houses, appellant argues, is the nonconformity at issue.  Based on the plain language of the Minneapolis Code of Ordinances, we disagree.

            First, it is undisputed that the City of Minneapolis has not ordered appellant to tear down either of the homes.  Rather, the city has refused to issue appellant a nonconforming-use certificate that would allow him to have both homes occupied as principal residential structures.  Thus, the issue, as presented by appellant, is clearly one of use of the structures on the lot.  Accordingly, it follows that the previous owner's failure to use the property in the same manneri.e., his failure to have both of the homes occupied as principal residential structures for more than one yearwould result in the loss of any legal but nonconforming-use status for the lot.

            This conclusion is supported by the plain language of the Minneapolis Code of Ordinances.  The code provides separate definitions for nonconforming uses and nonconforming structures.  Nonconforming use is defined as follows:

Nonconforming use, legal. A use of land or structures, lawfully existing on the effective date of this ordinance or amendment thereto that currently is not allowed, or that does not comply with one (1) or more of the regulations applicable in the zoning district in which it is located.  

 

Minneapolis, Minn., Code of Ordinances § 520.160 (1999) (definitions).  We note that the definition of nonconforming use is broad and applies to uses of land or structures that do not comply with the applicable zoning regulations.  This language supports our conclusion that the failure to use both homes as principal residential structures for a period of more than one year should result in loss of legal but nonconforming status under the code because appellant is asking for use of both structures as principal residences. 

            Appellant's argument is also contradicted by the code's definition of "nonconforming structure."  Nonconforming structure is defined as follows:

Nonconforming structure, legal. A structure or portion thereof, lawfully existing on the effective date of this ordinance or amendment thereto that does not comply with one (1) or more of the bulk regulations applicable in the zoning district in which it is located.

 

Minneapolis, Minn., Code of Ordinances § 520.160 (definitions).  Thus, the term "nonconforming structure" applies only to structures that do not comply with one or more of the "bulk regulations" in Minneapolis.  The phrase "bulk regulations" is defined in the code as follows:

Bulk regulations. Standards and controls that establish the maximum size of structures and the buildable area within which structures may be located, including height, floor area ratio, gross floor area, lot coverage and yard requirements, but excluding residential density regulations.

 

Minneapolis, Minn., Code of Ordinances § 520.160 (definitions).  From this definition it is clear that "bulk regulations" apply only to the size and buildable area within which structures may be located.  And the definition of bulk regulations also expressly excludes "residential density regulations."  The issue herethe city council's refusal to grant a nonconforming-use certificate to allow appellant to have two homes occupied on one lotis one of residential density.  Therefore, a "bulk regulation," and hence a "nonconforming structure," determination are not at issue. 

            We conclude that the issue here involves a nonconforming use of two structures and not the existence of two nonconforming structures on the lot.  Thus, the city council's determination that the lot owned by appellant lost its nonconforming-use status by virtue of the abandonment of 1309 Franklin for more than one year was not arbitrary or unreasonable.                              

II.

            Appellant also argues, in the alternative, that the city should be estopped from enforcing its own ordinance.  When justice demands, estoppel may be applied against a local government exercising its zoning powers.  Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 292 (Minn. 1980); Mesaba Aviation Div. v. County of Itasca, 258 N.W.2d 877, 880 (Minn. 1977).  "[E]stoppel is available as a defense against the government if the government's wrongful conduct threatens to work a serious injustice and if the public's interest would not be unduly damaged by the imposition of estoppel."  Ridgewood, 294 N.W.2d at 293 (quoting United States v. Lazy FC Ranch, 481 F.2d 985, 989 (9th Cir. 1973).  And if there is no wrongful conduct by the government, this court's inquiry should stop.  Id.

            This court has "recognized the heavy burden of proof placed on a party bringing an estoppel claim against a governmental entity."  Rose Cliff Landscape Nursery, Inc. v. City of Rosemount, 467 N.W.2d 641, 644 (Minn. App. 1991).  We have also held that "[a] property owner is charged with knowledge of whether a local zoning ordinance permits construction undertaken on the property."  Stotts v. Wright County, 478 N.W.2d 802, 805 (Minn. App. 1991), review denied (Minn. Feb. 11, 1992). 

            Here, appellant purchased a single lot with two residential homes on it.  One of the homes, 1309 Franklin, was unoccupied for at least one year between 1995 through 1998.  See Frank's Nursery, 295 N.W.2d at 608 (determination of facts is for the governmental entity).  The record indicates that, on October 19, 2001, the Minneapolis Zoning Office sent appellant a letter informing him that "the property located at 1309 W. Franklin Ave. has previously been identified as being vacant for more than one (1) year" and that he would therefore be required to obtain "a Non-Conforming Use Certificate before any building permits could be issued."  The zoning office also forwarded two letters, dated November 4, 1998, and February 23, 1999, which were sent to a previous contract-for-deed purchaser of the lot, informing him that a nonconforming-use certificate would be required before the city would issue a rental license for 2000 Fremont. 

            The record further indicates that, despite the zoning office's statements in its October 19, 2001 letter to appellant, appellant subsequently applied for and was granted a number of building permits to make improvements to both houses.  But it was not until June 2003 that appellant applied for a nonconforming use certificate that would have allowed him to have both homes occupied as principal residences.  And nothing in the record indicates that the city was aware, when it granted appellant the permits to improve the homes, that appellant intended to have both homes occupied as principal residences.  While the city's granting of building permits without appellant having obtained a nonconforming-use certificate may indicate carelessness on the part of those who issued the permits, such conduct is not the basis for estoppel when appellant had previously been informed of his need to apply for a nonconforming-use certificate.  We thus conclude that this is not an appropriate situation for this court to exercise its equitable powers. 

            Affirmed.  

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.