Agenda - Planning Commission - 04/01/1997

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Changing' Expanding Nonconform,ng Uses By 3/lark S. Dennison The ultimate purpose or'zoning ordinances is to confine certain classes of uses ~Ind structures to certain areas. The law generally frowns on nbnconforming uses because they undermine that goal. The[general rule is this: If prior to the adoption of an original zoning ordinance--or a subsequent amendment or revision--property was being used for a then- lawful purpose that the ordinance prohibits and renders nonconforming, the property owner acquires a vested right to continue the nonconforming use. Thus, the policy ofzo~ng ordinances is to secure the gradual or eventual elimination of.'~nonconforming uses. To further this goal, state zoning enablin§ actS confer powers on local zoning bodies to impose restrictions on the expansion or change of nonconform,ng uses. Th~s~rJssue of Zoning News evaluates the circumstances under which a change or expansion of a nonconforming use is considered illegal under most zoning ordinances. (Where case ckations are missing in the text, they appear in the accompanying sidebar.) Establishment of Nonconforming Use What is required to establish a nonconforming use as lawful? The land use must meet two basic requirements: · It must have existed befiare the prohibitory regulation was enacted. [See, for example, Heyman v. Zoning Hearing Board of Abington Township, 60I A,2d 414 (Pa. Commw. 1991).] · It must have been lawful when commenced. [See, for example, Oceanview Homeawners Association, Inc. v. Quadrant Construct;an &Engineering, 680 P.2d 793 (Alaska 1984); Hooper v. City of St. Paul 353 N.W. 2d 138 (Minn. 1984).] The burden of proving ~the extent or existence ora nonconforming use rests on the landowner, who must establish both of the above points. {See, for example, R.K. Kibblehouse Quarries v. Marlborough Township Zoning Hearing Board, 630 A.2d 937 (Pa. Commw. :19~93); City ofPeoria v. Dans 585 N.E.2d 1207 (I11. App. I992); Town oflthaca v. Hil~ 571 N.Y.S.2d 609 (App. Div. !.991).] A use that was begun in. violation of the ordinance in effect at the time cannot gain status as a preexisting and lawful nonconforming use. [See, for example, Lantos v. Zoning Hearing Board of Haverford Township, 621 A.2d 1208 (Pa. Commw. 1993).] The use in quest;off must have been in full conformance with all applicable and-use regulations in effect when the activity began. [See, for example; City ofDublin v. flnkes, 615 N.E.2d 690 (Ohio App. 1992),] In a few cases, the landowner's failure to obtain a certificate of occupancy when the use was established under a former iZoning ordinance has prevented the property from acquiring nonconforming use status under subsequent amei~dments to[the ordinance that prohibited the MARCH 1997 AMERICAN PLANNING ASSOCIATION use. [See, e.g, Bernstein v. District of Columbia Board of Zoning Adjustment, 376 A.2d 816 (D.C. App. 1977).] However, where the invalidity of a use lies in the fact that the landowner failed to obtain a business license or to comply with requirements imposed by an ordinance other than 'the one regulating land use, such invalidity generally will not preclude the property from acquiring nonconforming use status. [See, for example, Carrollv. Hurst, 431 N.E.2d 1344 (Ill. App. 1982) (failure to obtain license for operation of automobile junkyard as required by state motor vehicle code did not defeat nonconforming use status under zoning ordinance).] Limitations on Change A zoning ordinance can proscribe a new nonconforming use or one of a different character. The questioned use may not · :- Permissible Changes Types of changes that the courts have deemed permissible: DiBlasi v. Zoning Board of Appeals of the Town of Litchfield, 624 A.2d 372 (Conn. 1993) (change in use from a construction office to an adult probation office). Hall v. Brazzale, 624 A.2d 916 (Conn. App. 1993) (change f~'om a secondary storage site to the sole storage site for construction business). Limley v. Zoning Hearing Board of Port Vue Borough, 625 A.2d 54 (Pa. 1993) (change from private club to public restaurant and bar). Appeal of Schneider, 521 A.2d 528 (Pa. 1987) (change of use of property from storage and repair of general hauling trucks to storage and repair of empty trash trucks). Aboud v. Wallace, 463 N.Y.S.2d 572 (App. Div. 1983) (change from doctor's office to professional lobbying group's office). Kastendike v. Baltimore Association lo'Retarded Children, 297 A.2d 745 (Md. App. 1972) (change from nursing home for treatment of elderly and alcoholics to home for treatment of retarded children). · :- Impermissible Changes Types of changes that the courts have deemed impermissible: Gilmore v. County of DuPage, 597 N.E.2d 1111 (Iii. App. 1991) (change from chiropractor's office to dentist's office). Boivin v. Town of Sanfora~ 588 A.2d 1197 (Me. 1991) (change from auction barn to antique business). Tier Oil Corp. v. Egan, 472 N.Y.S.2d 505 (App. Div. 1984) (change from gasoline service station to combination gas station and convenience store). Stevens v. Town of Rye, 448 A.2d 426 (N.H. 1983) (change from automobile garage to bath shop and plumbing supplies showroom). Board of Zoning Appeals v. McCalley, 300 S.E.2d 790 (Va. 1983) (change from auto body shop to metal forge and machine shop). (continued on page 3) ql