Hooper v. City of St. Paul, C8-83-987

• Citation: 353 N.W.2d 138
• Decision Date: 24 August 1984
• Docket Number: No. C8-83-987,C8-83-987
• Parties: Alan HOOPER, et al., Appellants, v. The CITY OF ST. PAUL and the City Council Thereof, Respondents.
• Court: Minnesota Supreme Court

Page 138

353 N.W.2d 138

Alan HOOPER, et al., Appellants, v. The CITY OF ST. PAUL and the City Council Thereof, Respondents.

No. C8-83-987.

Supreme Court of Minnesota.

Aug. 24, 1984.

Syllabus by the Court

1. Continuous use of property as dual family residence for approximately five years prior to change in zoning classification from duplex to single family residence entitled property owner to lawful conforming use status under provision of St. Paul Zoning Code.

2. In the context of land use planning, lawful use refers only to those uses which comply with the existing zoning status.

Kenneth E. Tilsen, St. Paul, for appellants.

Edward Starr, Jerome Segal, St. Paul, for respondents.

Heard, considered, and decided by the court en banc.

COYNE, Justice.

Plaintiffs David and Mary Brewer, as fee owners, and Alan Hooper, as contract vendee, instituted this action for a declaratory judgment that the use of each of two structures situated on property commonly known as 387 Pelham Boulevard in St. Paul as a single family dwelling constitutes a valid nonconforming use under the Saint Paul Zoning Code. They appeal from the judgment of the Ramsey County District Court declaring that use of the premises for any purpose other than occupancy by a single family is unlawful. We reverse.

The property in question is a large, irregularly shaped lot on which two separate structures--a main house and carriage house--are situated. In 1918 Edward Brewer, plaintiff David Brewer's father and a well-known local artist, moved the former damkeeper's house from the bank of the Mississippi River to the property and placed it on a foundation he had constructed. Brewer then had a carriage house built. Although Brewer had secured a permit for the construction of the foundation of the main house, it appears that he built the carriage house without a building permit. A 1922 assessor's card is, however, attached to the foundation permit. The assessor's card variously identifies the carriage house as a single dwelling/studio with a toilet and a "studio apt. & gar."

Until Edward Brewer's death in 1971, the carriage house had served primarily as the artist's studio. The apartment had been used as living quarters only during a period in the 1920's when workmen used it as part time housing and, again, from 1939 to 1941 when David Brewer resided there while attending college.

In 1969 a fire caused severe internal damage to the carriage house. Restoration work, accomplished without a building permit, was completed about the time of Edward Brewer's death. David Brewer purchased the property in 1971 and from that time forward the carriage house has served as the residence of a succession of tenants. The carriage house was further improved pursuant to a 1975 building permit authorizing the alteration of "existing servant's quarters."

On December 13, 1976, the zoning classification of the property was changed from duplex to R-3 single family residence. In 1981 Brewer applied for a certificate of legal nonconforming use for the carriage house. In the application he affirmed that the present use of the property had been in existence more than 20 years. The zoning administrator approved the application. One of Brewer's neighbors requested review of the administrator's decision pursuant to St. Paul Zoning Code Sec. 64.203 (1981), and a public hearing was held. The board of zoning appeals concluded that the property was not entitled to lawful nonconforming use status and reversed the administrator's ruling. The board's determination was affirmed by the St. Paul City Council and ultimately by the district court.

It is a fundamental principle of the law of real property that uses lawfully existing at the time of an adverse zoning change may continue to exist until they are removed or otherwise discontinued. 8A E. McQuillin, Municipal Corporations, Sec. 25.180 (3d ed. 1976). As we held in County of Freeborn v. Claussen, 295 Minn. 96, 99, 203 N.W.2d 323, 325 (1972), "[a] residential zoning ordinance may constitutionally prohibit the creation of uses which are nonconforming, but existing nonconforming uses must either be permitted to remain or be eliminated by use of eminent domain", citing Hawkins v. Talbot, 248 Minn. 549, 80 N.W.2d 863 (1957).

In keeping with this principle, the St. Paul Zoning Code includes this statement in its general provisions: "It is the intent of this code to permit legal nonconforming * * * uses existing on the effective date of this code or amendment thereto, to continue until they are removed but not to encourage their survival."...