Agenda - Planning Commission - 02/05/2015

Home

December 25, 2014 l Volume 8 l Issue 24 Zoning Bulletin The Club appealed. DECISION: Judgment of superior court affirmed in part, reversed in part, vacated in part, and remanded. The Court of Appeals, Division 2, held that the Club's increased hours of operation at the shooting range represented a permitted intensification of the legally nonconforming use. However, the court held that the commercial and military use of the shooting range, and the dramatically increased noise levels constituted an impermissible expansion of the Club's nonconforming use. In so holding, the court explained that a legal nonconforming use is a use that "lawfully existed" before a change in regulation and is allowed to continue although it does not comply with the current regulations. Nonconforming uses, said the court, "are allowed to continue because it would be unfair, and perhaps a violation of due process, to require an immediate cessation of such a use." The court said that the law recognizes that nonconforming uses may grow in volume or intensity over time. Under the common law (i.e., court dictated, not statutory), an "intensification" of a nonconforming use generally is permis- sible, while the "expansion" of nonconforming use is prohibited. The court stated the standard for distinguishing between intensification and expansion: "When an increase in volume or intensity of use is of such magnitude as to effect a fundamental change in a nonconforming use, courts may find the change to be pro- scribed by the ordinance. Intensification is permissible, however, where the nature and character of the use is unchanged and substantially the same facilities are used. The test is whether the intensified use is different in kind from the nonconforming use in existence when the zoning ordinance was adopted." The court further recognized that the County Code adopted those common law standards. Applying the standard here, the court held that the increased hours of shoot- ing range activities here did not affect a "fundamental change" in the use and did not involve a use "different in kind" than the nonconforming use. Rather, the court found that the nature and character of the use remained unchanged despite the expanded hours. The court found that, by definition, represented an intensification of use rather than an expansion. Accordingly, the court concluded that the increased hours of shooting did not constitute an impermis- sible expansion of the Club's nonconforming use. The court also held that the Club's use of the property to operate a com- mercial business primarily serving military personnel represented "a fundamen- tal change in use" and was "completely different in kind than using the prop- erty as a shooting range for Club members and the general public." Accordingly, the court held that the Club's commercial and military use of the shooting range constituted an impermissible expansion of the Club's noncon- forming use. Further, although it found the types of weapons and shooting patterns used currently did not necessarily involve a different character of use than in 1993, when similar weapons and shooting patterns were used infrequently, the court did hold that "the frequent and drastically increased noise levels found to exist at the Club constituted a fundamental change in the use of the property" and that change represented a use different in kind.than the Club's 1993 property use. Accordingly, the court concluded that the dramatically increased noise levels constituted impermissible expansions of the Club's nonconforming use. 10 © 2014 Thomson Reuters