Agenda - Planning Commission - 12/05/1995

Home

Page 8 -- November 15, 1995 home. The board said its denial was supported by the building's original use as a single-family home, the City Council's denial of another bed and break- fast request across the street, and the City Council's failure to approve a bed and breakfast amendment to the zoning ordinance. Kopietz appealed to court. The court affirmed the denial, but returned the case to the board with orders that it give specific reasons why' the bed and breakfast would not be more appropriate. The board said the city's ordinance and state public policy allowed non- conforming uses to continue, but did not encourage their survival. The board gave several specific reasons for denying the petition, which included: the city wanted to return Kopietz's property to a conforming residential use; a bed and breakfast would be contrary to the historical and residential character of the area; and since the city did not force Kopietz to stop using the funeral home, it could ask that the next use be consistent with zoning. The board did not explain why the bed and breakfast would not be more appropriate than the funeral home. After the board issued its reasons, Kopietz appealed. He claimed the city zoning ordinance was unconstitutional because it did not set precise stan- dards for the board to determine whether one nonconforming use was more appropriate than another. Kopietz also claimed the board abused its discre- tion when it denied his petition, and the lower court incorrectly interpreted the zoning ordinance's provisions about the board's discretion when it affirmed the board's decision. In response, the board again cited the public policy statements in the zon- ing ordinance, which discouraged the continuance of nonconforming uses. DECISION: Reversed and returned to the board. -Although the ordinance was not unconstitutional, .the board abused its discretion when it denied Kopietz's petition. The case had to be returned to the board for review. In determining which of two nonconforming uses was more appropriate, the board would compare the distinct characteristics of each use. The ordi- nance was not unconstitutional just because it did not state which character- istics the board should compare. However, the board could not simply ignore the section 'of the ordinance that required it to determine which nonconforming use was more appropriate. · The'board could not deny Kopietz's petition without giving specific reasons why the funeral home was a more appropriate nonconforming use than the bed and breakfast. The factors it did consider were irrelevant. The lower court incorrectly interpreted the ordinance. It read the phrase, "any nonconforming use ... may be changed to another nonconforming use" to mean the board could deny a petition even if met all the ordinance's require- ments (including diminished nonconformity). In fact, the word "may" let the owner -- not the board -- choose whether to change the nonconforming use in such situations. If the proposed use met all ordinance requirements and also diminished nonconformity, the board had to grant the petition. I I I I I' I I