Agenda - Planning Commission - 04/01/1997

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Adding new facilitiesior enlarging existing ones is a prohibited expansion of~ nonconforming use if it is incompatible with thep~rmitted use or if the nature of the use substantially changes. E~en where the ordinance in question does not state specificalD that a nonconforming use could not be expanded, courts hav~ held that a nonconforming use may not be expanded, as this Houid offend the regulation's purpose. [See, for example, Lowe~ Mount Bethel Township v. Stabler Dev. Co., 509 A.2d 1332 (Pa,!Commw. 1986); Norton Shores v. Carr, 265 N.W.2d 802 (Mich.' App.~ 1978).] In the absence of specific guidelines in the zoning Ordinance, a court seeking to determine how much a nonconforming use may be expanded must look to the facts existing when the nonconforming use was created. [See, for example, New ~ndon Land Use Associates v. New London ZoningBoara~ 543 A.2d 1385 (N.H. 1988).] For example, in Ray's ~tateline Market, Inc. v. Town of Pelham, the owner ora nonconforming convenience store applied for permits to mike alterations to the premises that involved replacing two sign facings on the exterior and relocating a coffee counter inside the store. On appeal of the town zoning board of apPeals' decision to deny the permits, the trial court concluded tha{ the proposed alterations did not constitute au impermissible expansion or change of a nonconforming use. Affirming the trial court, the New Hampshire Supreme Court applied provisions of the state zoning enabling act pertaining to alterations to nonconforming uses. The statute grantedlprotection to a nonconforming use unless the use was altere~"for a purpose or in a manner which is substantially different from the use to which it was put before alteration." [N.H. Rev. S~at. sec. 674:19.] The town zoning ordinance was consistent with this provision, which the cou~t construed as limiting any extension, expansion, or enlargemen~t of a nonconforming use and prohibiting its change to a "substantially different" nonconforming use. The Court therefore evaluated the facts to determine whether granting the permits would result in an impermissible change or e~ctension of the nonconforming use in light of "the extent to w~ich the challenged use reflects the nature and purpose of th~ prevailing nonconforming use, whether the challenged ui{: is merely a different manner of using the original nonconformi~g use or whether it constitutes a different use, and whether the challenged use will have a substantially different impact upon the neighborhood." Applying these factors, ~_the court found that the landowner s proposed alterations invoDed nothing more than the internal expansion of a business within a preexisting structure and that there was no substantial change-in its effect on the neighborhood. Granting the sign permit ~ouid not affect the dimensions of the existing signs and would rq. sult only in lettering changes. Granting the coffee counter permit would merely result in relocating a coffee counter'within the store. Th'e court concluded that these facts supported {he trial court's rulings that the requested permits would ngt result in a substantial change or an illegal expansion of the no.flconforming use. The general rule with regard to extending a nonconforming use to additional property is that a nonconforming use is restricted to the area that was nonconforming at the time the relevant ordi- nance was enacted. Furthermore, a nonconforming use cannot be expanded onto property tha~t was acquired after the use became nonconforming. [See, for e~ampie, Smith v. Zoning Hearing Board of the Borough of Bellevue, 6it9 A.2d 399 (Pa. Commw. 1992).] Where the use of property involves a physical extension of a nonconforming use to a plrt of the land not used for the (continuedJ~om jgont) Taylor v. Metropolitan Development Commission, 436 N.E.2d 1157 (Ind. App. 1982) (change from liquor store to tavern). Belleville v. Parillo's, Inc., 416 A.2d 388 (N.J. 1980) (change from restaurant to discotheque). Phillips v. Village of Oriskany, 394 N.Y.S.2d 941 (App. Div. 1977) (change from restaurant and soda fountain to restaurant and tavern). -.*- Lawful Expansion Types of expansions that the courts have deemed lawful: Ray's Stateline Market, Inc. v. Town of Pelham, 665 A.2d 1068 (N.H. 1995) (replacement of two sign facings on exterior and relocation ora coffee counter on the interior of a store). Zachs v. Zoning hoard of Appeals, 589 A.2d 351 (Conn. 1991) (increase in the use of a nonconforming radio tower through the addition of eight radio antennas). Planning &Zoning Commission v. Craft, 529 A.2d 1328 (Conn. App. 1987) (increase in use of vacation dwelling from weekends and holidays to year-round occupancy). Oceanview Homeowner 's Association v. Quadrant Construction &Engineering, 680 P.2d 793 (Alaska 1984) (increase in number of planes using an airstrip). Redfearn v. Creppe~ 455 So.2d 1356 (La. 1984) (expansion of restaurant in nonconforming hotel). Hunziker v. Grande, 456 N.E.2d 516 (Ohio App. 1982) (nursery's increase in retail business as opposed to wholesale business). o.** Unlawful Expansion Types of expansions that the courts have deemed unlawful: Smith v. Palone, 642 N.Y.S.2d 119 (App. Div. 1996) (expanded operation of a nonconforming speedway). SLS Partnership v. Ci{y of Apple Valley, 496 N.W.2d 429 (Minn. App. 1993) (increase in the size of a mobile home located on a preexisting pad in a mobile home park). Country Sam, ]nc. v. Bennett, 597 N.Y.S.2d 13 (App. Div. 1993) (construction of an awning in the rear yard ora nonconforming restaurant). Metropolitan Development Commission of Marion Coun{y v. Goodman, 588 N.E.2d 1281 (Ind. App. 1992) (expanded use of a carriage house for three rental units was an impermissible expansion of the legal nonconforming use of the structure for two rental units). Bailey v. Town of Kennebunk, 593 A.2d 1055 (Me. 1991) (construction of an exterior deck from the third floor of a nonconforming residential dwelling). City of Rochester Hills v. Southeastern Oakland County Resource Recoveu/Authori{y, 481 N.W.2d 753 (Mich. App. 1991) (expanded use of landfill to include composting activities). Blake v. Ci{y of Phoenix, 754 P.2d 1368 (Ariz. 1988) (plant nursery drastically expanded retail sales). Helicopter Associates, Inc. v. City of Stamfore( 519 A.2d 49 (Conn. 1986) (helicopter service's expanded use from five to unlimited number of commercial helicopter flights). Bastian v. Ci{y of Twin Falh, 658 P.2d 978 (Idaho App. 1983) (enlargement of supermarket). Cannon v. Zoning Board of Adjustment, 308 S.E.2d 735 (N.C. App. 1983) (construction of storage shed on adjacent property).