Agenda - Planning Commission - 02/02/1999

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Z.B. January 10, 1999... Page 5 Contrary to the commission's argument, the zoning code didn't give it the authority to deny a permitted use because it was incompatible with the area. The code gave SecureCare and Amoco the right to use the property as they saw fit as long as it was consistent with the code. By allowing a use by right, the city limited its decision in denying that use. Once a zoning body found a particular use was compatible with the surrounding land uses and .designated the use as "permitted," the zoning body implicitly stated the use was.harmoni- ous with the surrounding neighborhoods. see also: Cherry Hills Resort Development Co. v. City'of Cherry Hills Village, 790 P. 2d 827 (1990).. Nonconforming Usb City cites company for illegally expanding nonconforming use Citation: Squire"v... Co~,way, Su]o.reme Court of New .York, Appellate Div., 3rd Dept., No. 8235? (1998) . In 1965, Airpage moved its telecom business into the basement and subbasement of a building in Albany, N.Y. At the time, the property was zoned business. In 1968;the city rezoned the property as multifamily residential. The company's basement' operations qualified as a legal nonconforming use. In 1996, the city inspected the building and found Airpage was also .using the first floor for business purposes. It cited'the company for expanding a non- conforming use-.wi~hcmt the necessary permits and apprr)v.als. .. The company appealed to the zoning appeals board. Airpage claimed.it hadn't illegally expanded a nonconforming ti. se because it had used the first floor for business purposes since before 1968. The board agreed, but 3ue to some "confusion," it held another vote and decided Airpage didn't prove it used the first floor for business purposes before 1968. The board reversed its earlier decision and denied Airpage's request to qualify the first floor as a legal nonconforming use. Airpage appealed to court. The court vacated the board's decision because the board didn't properly notify Airpage about the second vote.-The court ordered the board to hold another hearing. At the hearing, )kirpage's owner testified that he rented the property in 1965 and moved electronic equ'ipment into the basements. The owner said he moved the equipment up to the first floor within a year because there were water and dampness problems in the basements. Caldwell,., who initially installed the eqmpment ~n the basements, sa~d he moved the eq,mpment to the first floor in 1966. The city presented letters from previous tenants stating the first floor was used exclusively for residential purposes. One tenant said she occupied the entire first floor from 1974 to 1976; another said he lived in the entire first floor from 1976 to 1981. The board determined Airpage illegally expanded its nonconforming use.