Agenda - Planning Commission - 12/05/1995

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Page 4 -- November 1995 Z.B. Nonconforming Use-- Is Expansion of Nonconforming Use Abandonment? t~oulathas v. Atlantic City Zoning Board of Adjustment, 660 A. 2d 7 (New Jersey) J 995 . Poulathas owned a building that had three apartments and two stores in Atlantic City, N.J. From ].929 to 1979, the property was in a business district where that use was allowed. From 1979 to 1993, the property was in a zone that did not allow the use. The city's property records showed the property had two stores and three apartments at least as early as 1961, and as late as 1981. In a t991 code enforcement proceeding, a court found Poulathas guilty of illegally adding two more apartments to the building. Poulathas agreed to change the building back to its original condition, which he did. Poulathas applied to the city's Zoning Board of Adjustment for a certifi- cate of nonconformance under state law. The board held a hearing on the request in 1993, after which it denied the application. The board found that before 1991, Poulathas had a protected nonconforming use. However, his illegal expan- sion of the use was an abandonment of it. The board reasoned that an illegal expansion caused a property to lose its "legal character," including any legal nonconforming use. Poulathas appealed to court. The court ordered the board to issue Poulathas a certificate of nonconformance. The board appealed. DECISION: Affirmed, in favor of Poulathas. The lower court properly ordered the board to grant Poulathas the certifi- cate of nonconformance. There was no evidence Poulathas intended to aban- don his protected nonconforming use. He did not change the use, he only expanded it -- the three apartments and two stores were still there the entire time. Refusing to treat the illegal expansion as an abandonment balanced two interests: discouraging expansion of nonconforming uses and guaranteeing against forced termination of them. Township of Fairfield v. Likanchuk's Inc., 644 A.2d 120 (1994). Weber v. :Pieretti, 178 A.2d 92 (1962). Editor's Note: As a'dded authority for its holding that illegal expansions of nonconforming uses. are not abandonment, the court cited a case we summar- ized on page 4 of our February 15, 1995 issue, Township of Fairfield v. Likanchuk's Inc., 644 A.2d 120 (1994). Appeal -- Board Fails to Vot~ on Storage Building Variance State ex rel. Dussault v. Board of Adjustment, 901 S. W.2d 318 (MissourO 1995 Without a building permit, Dussault constructed a storage building on a designated flood plain in the city of Maryland Heights, Mo. After the building was complete, Dussault applied to the city's Board of Adjustment for a vari- ance. The board denied the variance. Dussault asked the city's building commissioner how to bring the building into compliance with the city's zoning ordinance. The commissioner told Dussault he should either flood proof the building or raise the building to one foot above the base flood elevation. I I I I I ! I' I I I I I I I