Agenda - Planning Commission - 08/01/1995

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Z.B. July 1995 -- Page 3 The board's decisions assumed the usual land use planning process applied unless it would prevent the project's implementation. However, the statute regarding the project clearly stated that the usual land use planning process was to be superseded. Therefore, the board had to follow the simplified review provisions When it reconsidered its decisions. This meant it had to decide whether the city's conditions were reasonable and necessary, as well as whether they would prevent the project's implementation. Sero v. Tri-County Metropolitan Transportation District, 814 P. 2d 1060 (1991). 1000 Friends of Oregon v. LCDC, 731 P. 2d 457 (1987). Nonconforming Use -- Did Property Lose Nonconforming Status After Government Seizure? Sapakoff v. Town of Hague Zoning Board of Appeals, 621 N.Y.S.2d 215 (New York) 1995 Hansen'owned the Open Hearth 'Restaurant in the town of Hague, N.Y. In 1977, the town adopted its first zoning ordinance, which put the Open Hearth in a residential zone. While bars and restaurants were not permitted there, the Open Hearth could continue to operate as a prior nonconforming use. The ordi- nance stated that if a nonconforming use were discontinued for two years, the property had to comply with zoning. In November 1989, Hansen was indicted for conspiracy to distribute cocaine. Five months later, the U.S. government seized his restaurant under federal for- feiture laws. In June 1990, Hansen pleaded guilty to the crime and agreed to forfeit the property to the government. In 1991, the government advertised the property for sale as residentially zoned, saying the building was formerly used as a restaurant. After buying the property in July 1992, the new owner applied to the town development administrator for a permit and certificate of occupancy to lease the property as a bar and restaurant. The administrator approved the applica- tion, finding the property remained a nonconforming use because the forfeiture prevented continued restaurant operations. Sapakoff owned residential property across from the restaurant. She asked the town's Zoning Board of Appeals to review the administrator's findings. After the board affirmed, she sued. Sapakoffclaimed the property was no longer a legal nonconforming use because it had not been used as a restaurant for more than two years. The court dismissed the case, and Sapakoff appealed. DECISION: Reversed, in favor of Sapakoff. The lower court's dismissal was reversed, and Sapakoff's petition was granted. The property was no longer a nonconforming use. While the government owned it, the property was not used as a restaurant. It did not matter if Hansen or the government intended to discontinue using the property as a restaurant, and no law stopped the two-year discontinuation period from running. There- fore, the property lost its nonconforming use status.