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Running One?s Mouth is One Thing; Running with the Land Another

By E.L. Lipman

In an interesting unpublished opinion handed down on Tuesday, a panel of the Minnesota Court of Appeals held that request for approval of an amendment to an existing Conditional Use Permit did not provide the occasion for local zoning authorities to revisit and narrow the approved uses under the original permit.

In 1997, Minnewawa Sportsman Club applied for a Conditional Use Permit to operate a firearms range on a 20-acre parcel in Aitkin County. While Club officials suggested during a hearing on their request that the range would ordinarily operate on one weekday and on Saturdays each week, this restriction was not included in the later approved permit. When in 2006, the Club sought to expand its operations onto an adjacent nine-acre parcel, County zoning officials imposed 17 conditions on the amended Conditional Use Permit ? some of which touched upon the earlier-approved uses. Among the new limitations was a codification of the Club officials? 1997 suggestion that the pistol range would operate on only one weekday and Saturdays each week.

Holding that this narrowing of the uses that were authorized in 1997, was improper, the panel wrote:

[U]nless the landowner?s purportedly binding representations are themselves recorded with the CUP, interested parties or future purchasers may have no notice of use restrictions on the property. There is no indication in the record that Ward?s statements during the 1997 hearing were recorded as part of the [Conditional Use Permit]. This is critical since a CUP runs with the land and continues to encumber the property even after it is conveyed to subsequent owners. Second, this case also presents a practical problem concerning the allegedly binding representation?imprecision. The minutes of the 1997 process indicate that Minnewawa?s representative Ward stated only that ?the majority [o]f the shooting? would occur during expressly stated times and days. Third, the chairperson specifically said that he ?did not see a need for any conditions? on the CUP. Consistent with that discussion, the county?s chairman signed the CUP indicating the imposition of no conditions.

The panel?s complete analysis is accessible here.

Full post as published by Within the Scope on February 09, 2008 (boomark / email).