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When can government change land use?

Through zoning, local governments in Minnesota can restrict or regulate the use of property. However, this issue becomes complicated when a property owner engages in permitted activities if a local government later issues a zoning ordinance restricting these activities.

Minnesota grants its municipalities the police power to regulate land use through its state's zoning enabling act. However, local governments are limited in their authority to terminate a nonconforming use. A nonconforming use is activity that is prohibited under a current zoning ordinance but is still allowed to continue to because the use was legal before the new ordinance took effect. This protects the landowner's interest and investment in the existing lawful use.

A nonconforming use may continue if there is repair, replacement, restoration, improvement or maintenance. However, expansion of that use is not allowed and a municipality may restrict that use to prevent and abate nuisances or for public health and safety. Nonconforming use is anticipated to end through obsolescence, exhaustion or destruction.

A landowner, however, does not waive or surrender the right to continue a nonconforming use by obtaining a conditional use permit for any activities on that land. This right may be terminated through the government's exercise of its eminent domain or by a written agreement with the property owner.

In addition to exercising its eminent domain power, a government may terminate nonconforming uses if that use was discontinued for more than one year, when the use or structure was destroyed by fire or other peril for more than 50 percent of its estimated market value or where a court determines that the use was a nuisance. Where a building was damaged in excess of 50 percent of its market value, a government may require the issuance of an interim-use permit to replace the damaged structure.

Zoning laws are only one factor governing the purchase, use and expansion of commercial real estate. Prompt legal assistance can help lead to successful commercial real estate transactions.

Source: State of Minnesota, "White v. City of Elk River, 840 N.W.2d 43 (Minn. 2013)," Accessed June 1, 2015

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