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Katie Larsen March 12, 2021 Page 3 Removal of a Legal Nonconforming Use is Prohibited Under Law The Minnesota Supreme Court has stated a municipality has limited lawful options to terminate a legal nonconforming use of land. Those options are as follows: The first circumstance is by exercise of eminent domain. Minn. Stat. § 465.01 (2012). Two other circumstances are by operation of law when the use has been “discontinued for a period of more than one year,” Minn. Stat. § 462.357, subd. 1e(a)(1), or when the use has been “destroyed by fire or other peril to the extent of greater than 50 percent of its estimated market value,” id., subd. 1e(a)(2). A fourth circumstance for terminating a nonconforming use is by judicial determination that the use is a nuisance. Id., subd. 1d. Additionally, a municipality and a property owner may terminate a nonconforming use by written agreement. White v. City of Elk River, 840 N.W.2d 43, 52 (Minn. 2013). In White, the City required an existing legal nonconforming use to obtain a CUP. After approving the CUP, the City subsequently sought to eliminate the applicant’s nonconforming rights by revoking the CUP. The Minnesota Supreme Court held that the City’s action was an unlawful termination of legal nonconforming rights, which did not meet any of the lawful methods for termination described above. The same legal analysis as used in White is applicable to the City’s actions here regarding Mr. Stowe’s operation of the Arena. The City’s actions are particularly suspect here—it was not until after the City passed the Stable Ordinance and compelled Mr. Stowe to apply for the 2020 CUP that the City asserted the original SUP had been abandoned. In 2018, the City expressly acknowledged that the Arena had been used as horse training and selling facility for the past 20 years. At that time, the City did not make any claims or assertions that the SUP had expired. To the contrary, the City adopted an ordinance that would have been unnecessary if Mr. Stowe truly had no rights in the SUP. The City’s subsequent attempt to coerce Mr. Stowe to forfeit his rights under the SUP by claiming he needed an unnecessary CUP and have him acquiesce to the inapplicable requirements of the Stable Ordinance, is not appropriate under Minnesota law. The Required Forfeiture of the SUP is a Statutory Taking The City’s demand that Mr. Stowe forfeits the SUP and other use rights as a condition of approval is a statutory taking under Minnesota Law: COMPENSATION FOR REMOVAL OF LEGAL NONCONFORMING USE. (a) Notwithstanding any law to the contrary, an ordinance or regulation of a political subdivision of the state or local zoning authority that requires the removal of a legal nonconforming use as a condition or prerequisite for the issuance of a permit, license, or other approval for any use, structure, development, or activity constitutes a taking and is prohibited without the payment of just compensation. This section does not apply if the permit, license, or other approval is requested for the construction of a building or structure that cannot be built without physically moving the nonconforming use.