Agenda - Planning Commission - 01/09/2014

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December 10, 2013 I Volume 7 I Issue 23 Zoning Bulletin The City had maintained that TKO never established a lawful nonconform- ing use because it failed to seek a certificate of nonconformance from the City zoning officer or register in accordance with a City ordinance. The City argued that TKO had the burden of proving that since 1993 (the date of the present ordinance), the property had been used as a three -unit dwelling. Although TKO presented tax assessment information showing a "multi -dwelling" on the property, and a 1960 tax assessment card showing the property as a "three- family" dwelling, the City argued that TKO failed to present testimony from any neighbors or tenants that the property had been used as a three -unit dwell- ing since 1993. Moreover, the City argued that TKO and its predecessors did not register the units under the City's Rental Registration Ordinance and did not seek a written statement of nonconformity from the zoning officer, as required by the ordinance. The court, however, disagreed with the City. Instead, it found that TKO had proven that since at least 1960, the property has been used as a legal three -unit dwelling and that the use became nonconforming as of 1965. Since use of the property as a three -unit dwelling predated the enactment of the prohibitory zoning restrictions, the court concluded it was a lawful nonconforming use. Moreover, although TKO did not seek a certificate of nonconformance from the zoning officer, the court said that "[t]he mere absence of a certificate does not deprive the landowner of his right to continue a lawful nonconform- ing use." Similarly, said the court, the failure to register in accordance with the Registration Rental Ordinance, a nonzoning ordinance, could not deprive a property owner of the right to continue the use. The court also agreed with TKO that the nonconforming use was not abandoned. The court explained that continuation of a legal nonconforming use "runs with the land, so long as the use is not abandoned." To show abandonment of the use, the court said that the City had to prove both that the landowner intended to abandon the use and that the use was actually abandoned. The City had argued that a zoning ordinance may establish a presumption of intent to abandon by incorporating a discontinuation provision. A discon- tinuation provision provides that the lapse of a designated period of time is sufficient to establish the intent to abandon a nonconforming use. Here, a City zoning ordinance did provide a discontinuation provision, providing that the lapse of six months established intent to abandon a nonconforming use. The court acknowledged that the use of TKO's property had been vacant and condemned for more than six months. Still, although the City showed intent to abandon, the court found that there no actual abandonment occurred. The prior owner of the Property involuntarily vacated the structure due to foreclosure, and the City thereafter condemned it. The court said that where discontinuance of a use occurs because of events beyond the owner's control, such as financial inability, there is no actual abandonment. Moreover, the court said that failure to register a nonconforming use does not constitute an abandonment of that use. Accordingly, because TKO had established a legal three -unit nonconform- ing use and there was no actual abandonment of that use, the court reversed the trial court's order affirming the ZHB's decision to deny TKO's requested building permit. 6 2013 Thomson Reuters