Increasing enforcement of existing law doesn’t not ‘expand’ its ‘scope’

We determined that the landowner could upgrade his equipment so long as the new equipment was "merely an improvement over the previous method and did not constitute a change in the nature and purpose of the original use." Id. at 866-67. Our holding recognized that landowners are not confined to exercising their nonconforming use rights with outdated or inefficient equipment if it is possible to make improvements that are consistent with the original use [**15] of their land.

We also considered whether increasing the size of the gravel pit violated the city's ordinance. We acknowledged that "[i]f the [property owner] [were] to be limited to the area of land actually excavated at the time of the adoption of the ordinance, the restriction, in effect, [would] prohibit[] any further use of the land as a gravel pit." Id. at 865. Accordingly, we concluded [*339] that "by the very nature of that business [the landowner] had to expand the area of its operation or be deprived of all value." Hawkinson, 231 N.W.2d at 282 (discussing Hawkins).

Other jurisdictions share similar concerns regarding the nonconforming rights of certain special use properties (such as quarries, gravel pits, and landfills), and have adopted a more flexible approach that takes the nature of nonconforming operations into account. See Bauer, 662 A.2d at 1192; Eddins v. City of Lewiston, 150 Idaho 30, 244 P.3d 174, 178 (Idaho 2010) (using a "flexible approach that focuses on the character of the alleged enlargement or expansion on a case-by-case basis"); Jones v. Town of Carroll, 15 N.Y.3d 139, 931 N.E.2d 535, 537-38, 905 N.Y.S.2d 551 (N.Y. 2010) (noting that "the use of property as a landfill, like a mine, is unique because it necessarily envisions that the land itself is a resource that will be consumed over time"); Chartiers Twp. v. William H. Martin, Inc., 518 Pa. 181, 542 A.2d 985, 989 (Pa. 1988) (upholding the right of the owner of a nonconforming landfill to increase the daily intake [**16] of solid waste); see also Point San Pedro Rd. Coal. v. Cty. of Marin, 33 Cal. App. 5th 1074, 245 Cal. Rptr. 3d 580, 584 (Cal. Ct. App. 2019); but see Twp. of Fairfield v. Likanchuk's, Inc., 274 N.J. Super. 320, 644 A.2d 120, 124 (N.J. Super. Ct. App. Div. 1994) (explaining that "simply because the nature of the use involves a diminishing asset does not necessarily justify its expansion"); Huckleberry Assocs., Inc. v. S. Whitehall Twp. Zoning Hearing Bd., 120 A.3d 1110, 1115 (Pa. Commw. Ct. 2015) (limiting the scope of a landowner's nonconforming use right to operate a surface mine and quarry to the "natural expansion" of that use).

Here, nonindustrial, non-toxic waste is required for the existing operation of a nonconforming waste facility. AIM Development's proposal, with respect to the source of waste, seeks to replace a depleted source with viable waste streams. In this instance, denying AIM Development's request to replace the sources of waste would truncate the landowner's vested right to continue to operate an industrial waste facility.

Our holding today is consistent with the reasoning in Hawkinson and Claussen. In Hawkinson, a multi-lot resort owner wished to expand his unzoned lakeshore property for recreational-commercial purposes when the area was zoned for residential use. 231 N.W.2d at 280. We assessed the landowner's actual use of property, lot by lot, without regard for his comprehensive, but unrealized, design. Id. at 282. Ultimately, we upheld the application of zoning restrictions. Id. We noted, "[w]hile it is true that [**17] [the landowner's] long-range plans have been frustrated, he is not prevented from carrying on at the same level [that was] obtained before the zoning ordinance was adopted." Id. When the same reasoning is applied here, it is clear that precluding AIM Development from replacing its waste stream would do more than "frustrate" its long-term plans. Without new sources of waste, the landowner would be prevented from carrying on altogether.

In Claussen, the landowner wished to enclose his nonconforming, open-air business. 203 N.W.2d at 324. The landowner asserted that the shelter would likely make the nonconformity less disruptive to [*340] the surrounding area. See id. While that might have been true, we noted that the sheltered workspace would also have unreasonably prolonged the lifespan of the nonconformity and made it more difficult to convert the land to a different use when the nonconformity was eliminated. Id. In addition, a sheltered workspace would change the nature of the operations by allowing the landowner to conduct business during the harsh winter months that could not be completed outside. See id. We held that "construction of a building where none existed before constitutes an expansion of a nonconforming [**18] use in the same manner as an addition to an existing building." Id. Ultimately, because a sheltered workspace was not required for the landowner to continue his nonconforming business, his proposal was denied. See id. at 327.

HN13 Similarly, we have long recognized that the reasonable substitution of equipment used in the operation of a nonconforming business is not an expansion as long as the nature and purpose of the original use remains unchanged. See Hawkins, 80 N.W.2d at 866-67. We choose to treat the reasonable substitution of materials the same. See Eddins, 244 P.3d at 179 (allowing the reasonable substitution of materials and equipment).