Agenda - Planning Commission - 04/01/1997

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be grandfathered from the operation of new zoning restrictions if it: · fails to reflect the nature and purpose of the preexisting nonconforming use · is different in quality or character as well as in degree · is different in kind in its effect on the neighborhood where it is located. [See, for example, Keith v. Saco River Corridor Commission, 464 A.2d 150 (Me. 1983).] To qualify as a continuation of an existing nonconforming use, a proposed use must be similar to the original use. (See, for example, Boivin v. Town of Sanford.) However, it need not be identical. [See, for example, Pappas v. Zoning Board of Adjustment of the Oty of Philadelphia, 589 A.2d 675 (Pa. 1991) (pizza restaurant with seating for 40 customers was similar to preexisting nonconforming use as sandwich shop that had very limited customer seating and sold primarily take-out food).] In determining whether a new use bears adequate similarity to an existing nonconforming use, courts evaluate various factors, including: · the extent to which the current use reflects the nature and purpose of the original use; [] whether the use is different in character, nature, and kind; · whether the current use has a substantially different effect on the neighborhood. [See Zachs v. Zoning Board of Appealg, Knowlton v. Browning- ?erris In&~stries, 260 S.E.2d 232 (Va. 1979); Town of Bridgewater v. Chuckran, 217 N.E.2d 726 (Mass. 1966).] Determining whether a questioned use meets this test necessarily involves consideration of the specific facts of each case. [See, for example, Mason v. Crooker-Mulligan, 570 A.2d 1217 (Me. 1990).] For instance, in Ka-HurEnterprises, Inc. v. Zo,ing Board of Appeals of Provincetown, 661 N.E.2d 120 (Mass. App. 1996), the court evaluated whether a nonconforming use as a fuel oil storage and distribution depot was terminated by a change in use. The property at issue was used as a fuel oil storage and distribution facility before the city enacted a 1951 zoning ordinance that zoned it for residential use. This use continued until 1979, when the Nauset Trawling Company acquired the property and operated a fishing business and truck repair shop on the premises that lasted until August 1987. The evidence showed that Nauset used the property primarily to operate its fishing business and to garage and repair trucks used for hauling fish. While there was evidence that Nauset continued to store fuel in the two tanks on the premises and to make deliveries ro irs fishing vessels, out-of-town fishing boats, and a few homes of its employees, neighboring property owners testified that they never saw any fuel oil truc 'ks enter or leave the premises. The town's building inspector also testified that, on his numerous visits to the property from 1985 to 1987, he never saw any evidence that the property was being used as a fuel storage and distribution facility. The court was unpersuaded by the fact that the property c6ntinued to be used for incidental storage of fuel oil. It concluded that a substantial change in use had occurred during Nauset's ownership, and the property lost its nonconforming use status. ~rark Dennison is an attorney a,d author who practices en viron- mental, land-use, and zoning law in Westwood, New Jersey. On the other hand, some courts have held that incidental storage activities that were part of the preexisting nonconforming use may be continued despite a change or discontinuance of the property's primary nonconforming business use. [See, for example, Toys R Us v. Silva, 639 N.Y.S.2d 88t (Sup. Ct. 1996); Hendgen v. Clackamas County, 849 P.2d 1135 (Ore. App. 1993).] Some zoning ordinances allow a change in use provided that the new use would have been permitted in the most restrictively zoned district in which the original use was allowed. [See, for example, Prudence v. Town of Ithaca Zoning Board of Appeals, 599 N.Y.S.2d 749 (App. Div. 1993).] Others allow changes to a less intensive nonconforming use or one that would be less detrimental to the neighborhood's character than the existing nonconforming use. [See, for example, McLaughlin v. O~y of Brockton, 587 N.E.2d 251 (Mass. App. 1992).] These ordinances are designed to achieve eventual eradication of nonconforming uses through gradual change to uses that are "more appropriate" to the district. [See, for example, Kopietz v. Zoning Board of Appeals for the Cig of the Village of Clarkston, 535 N.W. 2d 910 (Mich. App. 1995).] Zoning ordinances seldom contain an absolute prohibition against ali expansions of nonconforming uses, and some courts, most notably in Pennsylvania, have ruled that local ordinances cannot impose such an absolute prohibition. Limitations on Expansion The rationale for prohibiting a change from one nonconforming use to another applies also to expansions of preexisting noncon- forming uses. The only nonconforming use entitled to protec- tion is the one that existed when passage of the zoning ordinance made it nonconforming. Allowing the nonconform- ing use of land and buildings to be expanded or enlarged would further exacerbate the offense to the general community and undermine the public policy that nonconforming uses should eventually be eliminated and made to conform to the zoning laws. [See, for example, SLS Partnership v. City of Apple Valley.] Zoning ordinances seldom contain an absolute prohibition against all expansions of nonconforming uses, and some courts, most notably in Pennsylvania, have ruled that local ordinances cannot impose such an absolute prohibition. [See, for example, Gatti v. Zoning Hearing Board of Salisbmy Township, 543 A.2d 622 (Pa. Commw. 1988).] Most zoning ordinances permit some expansion. Permissible expansions typically include an increase in business volume that does not include an enlargement of the size of a nonconforming building or an extension of the nonconform- ing use within the confines of the same nonconforming lot or building. Impermissible expansions commonly include structural alterations that increase the size of a nonconforming building or its expansion onto additional land that was not formerly used for that purpose. The applicable zoning ordinance determines which expansions are deemed either lawful or illegal.