Agenda - Planning Commission - 09/01/1998

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Page 2 -- August 25, 1998 Z.B. Nonconforming Use-- Owner challenges ordinance that prohibits changing between nonconforming uses Citation: City of Sugar Creek v. Reese, Court of Appeals of Missouri, Western Dist., No. WD 54938 (1998) Reese owned property in Sugar Creek, Mo., that was zoned to allow all businesses. Able Manufacturing began operating a d. ie-casting business on Reese's property in 1960. Six years later, the city rezoned the property to a more restrictive business class that didn't allow industrial uses like die-casting. It also created an industrial district, but Able Manufacturing continued to operate on Reese's property as a legal nonconforming use. The city amended its zoning ordinance again in 1983 to allow residential and less-intense commercial uses such as assembly halls, dance hails, and gas stations in the district. Under the new ordinance, nonconforming uses could be continued indefinitely but couldn't be changed to different nonconforming uses. Also, a nonconforming use would lose its status if it was discontinued for 180 days. Able Manufacturing shut down in 1992. Reese improved the building and sent a letter to the city planning commission, asking it to rezone the property to light industrial so he could run an auto repair shop. The city never rezoned the property, but Reese began operating an auto shop anyway. Two years later, the city building official cited Reese for violating the zoning ordinance by maintaining a prohibited auto repair business in a business district. The city gave Reese 10 days to remove inoperable cars from the property. The city later issued Reese a summons for violating city ordinances. The complaint charged Reese with violating the zoning ordinance by operating an auto shop in a business district by having more than two unreg- istered vehicles on the property. The city court found against Reese on both charges. Reese appealed to the court. He claimed he wasn't bound by the 1983 zoning ordinance that prOhibited changing one nonconforming use to another because that ordinance wasn't retroactive. He also claimed the prohibition against changing between nonconforming uses amounted to an "amortization" that violated the Takings Clause. An "amortization" occurred when an ordinance set a schedule for terminating existing property rights. The city argued Reese's right to use the property as a legal nonconforming use expired 180 days after Able Manufacturing shut down. It argued that even if his nonconforming use hadn't lapsed, Reese was bound by the 1983 zoning ordinance that prohibited changing one nonconforming use for another. The court affirmed the city court's decision, and Reese appealed again. DECISION: Affirmed. Reese violated the zoning ordinance and the building code by operating an auto shop in a business district and by keeping unregistered cars on the 55'