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' OV 04 '93 16:17 HOLMES & GRAVEN P.7 7, 1 140 Minn. 353 NORTH WESTERN REPORTER, 2d SERIES f house—are situated. I;n 1918 Edward ing use status and reversed the administra- Brewer, plaintiff David Brewer's father tor's ruling. The board's determination 1 I and a well-known local artist, moved the was affirmed by the St. Paul City Council former darnkeeper's house from the bank and ultimately by the district court. of the Mississippi River to the property and (1,21 It is a fundamental principle of placed it on a foundation he had construct- the law of real property that uses lawfully ed. Brewer then had a carriage house existing at the time of an adverse zoning built Although Brewer had secured a per change may continue to exist until they are mit for the construction of the foundation removed or otherwise discontinued. &A E. of the main house, it appears that he built McQtullia,Municipal Corporations, § 26.- the carriage house without a building per- 180(3d ed. 1976). As we held in County of mit. A 1922 assessor's card is, however, Freeborn v. Claussen, 295 Minn. 96, 99, attached to the foundation permit. The 208 N.W.2d 323,325(1972), la] residential assessor's card variously identifies the car zoning ordinance may constitutionally pro- . riage house as a single dwelling/studio hibit the creation of uses which are noncon- with stone and s "studio-apt-&-gar." forming,but existin nonconforming-uses— , . ser, . Until Edward Brewer's death in 1971,the must either be permitted to remain or be carriage house had served primarily as the eliminated by use of eminent domain", cit. artist's studio. The apartment had been ing Hawkins v. Talbot, 248 Minn. 549, 80 used as living quarters only during a pen- N.W.2d 868 (1957). t od in the 1920's when workmen used it as (3] In keeping with this principle, the part time housing and,again, from 1989 to St. Paul Zoning Code includes this state- 1941 when David Brewer resided there ment in its general provisions: "It is the while attending college. intent of this code to permit legal noncom,. In 1969 a fire caused severe internal forming ' ' ' uses existing on the effec- damage to the carriage house, Restoration tive date of this code or amendment there- work, accomplished without a building per- to, to continue until they are removed but ' mit, was completed about the time of Ed- not to encourage their survival." St. Paul f Iward Brewer's death. David Brewer pur- Zoning Code§ 62.102,subd. 1 (1981). This chased the property in 1911. and from that section also creates a presumption that a time forward the carriage house has served use is a legally nonconforming use if it is as the residence of a succession of tenants. demonstrated by clear and convincing evi- The carriage house was further improved dente either that the use was established . 4} pursuant to a 1975 building permit author pursuant to building permits issued by the I.t fixing the alteration of "existing servant's city or that the use had been in existence '' .,, quarters.�� continuously for at least 20 years prior to On December 13, 1976, the zoning class'- the effective date of rezoning. fication of the property was changed from The district court construed this provi- duplex to R-3 single family residence. In sion to preclude the continuance of any 1981 Brewer applied for a certificate of nonconforming use except a use which ei- legal nonconforming use for the carriage titer had been established pursuant to a house. In the application he affirmed that building permit or had existed for 20 years. i i. : existence more than 20 years. The zoning casts grave doubt on the validity of the i administrator approved the application. zoning code because it fails to honor the One of Brewer's neighbors requested re- constitutional protection afforded existing view of the administrator's decision pursu- uses. County of Freeborn v Claussen, ant to St.Paul Zoning Code§ 64203(1981), supra. Moreover, reference to other sec- .[. and a public hearing was held. The board tions of the zoning code confirms that of zoning appeals concluded that the prop= § 62.102, subd. 1, simply creates a pre- "'` erty was not entitled to lawful nonconform- sumption that certain nonconforming uses I t 1