Agenda - Planning Commission - 02/02/2017

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In extreme cases, outdoor storage in residential areas may violate both zoning and property maintenance ordinances. took place in the basement treatment room, to demonstrate that the defendant was in violation of a court order. When the matter was heard in court a couple of days later, the inspector appeared in court to show the judge she had received the spa service. The defen- dant was held in contempt of court for violat- ing the court order. ISSUES OF CONCERN There are a number of situations that require specific approaches. These include problems with violations of conditional or special use permits, certificates of zoning, illegal conver- sions, and legal nonconforming uses. Special Use Permits When there is a violation of a special use permit, there are two potential courses of con- duct, and one or both of them can be pursued. The first involves filing a complaint in court for the specific violation of the ordinance establishing the special use if compliance is not forthcoming. The second action is to sus- pend or revoke the special use permit if the defendant is recalcitrant. The fear of losing the special use permit will usually convince the defendant to come into compliance and cease the illegal activity. However, because this may be viewed as an aggressive posture, the philosophy of the local government usually determines which course of action to take. Failure to Obtain a Certificate of Zoning Most of the violations that end up in court deal with the failure to obtain a certificate of zoning before occupying a structure. These are easy cases to prove once the inspector gath- ers evidence showing that the defendant is engaged in a business for which no certificate of zoning exists. In some of these cases no compliance is possible because the local government cannot issue a certificate of zoning. For example, the use must cease because it is not permitted in the zoning district in which it is operating. Or expensive fire code upgrades are required for the use, but the defendant doesn't have the financial resources to pay for them. In these types of situations, swift action is critical so the defendant is not allowed to establish the illegal activity for a lengthy period of time. Judges are reluctant to order the cessation of a use the longer it is allowed to continue. There are times when seeking imposition of a daily fine is justified. When a defendant refuses to cease engaging in the illegal activity after repeated attempts to gain compliance, it may be necessary to make it too expensive to stay in business at that location by seeking a fine for every day the violation occurs. When people purchase property intending to engage in a particular business, they do not always hire attorneys who are familiar with land -use issues. Most real estate lawyers want to make sure that title passes to their clients at the closing. That is their most important goal. Unless the client tells the attorney about the plans for the business and the attorney knows that the zoning ordinances are important, no one does the research as to whether the use is permitted. Owners who buy a property before per- forming due diligence to check for all of the possible regulations involved may end up with property they can't use as they intended. For example, I had to prosecute an individual for illegally crushing stone on a vacant lot. The zoning district regulations required that there be a physical building on the lot before that type of business was allowed. Because he had no building or resources to build one, he ended up with a piece of property that was of no use to him. Ifa business has a certificate of zoning but then begins to engage in an activity not permitted by that certificate, suspending or revoking the certificate of zoning is a proper procedure to use if the business refuses to comply after receiving notice of the violation. An example would be a business that begins selling vehicles when it is only allowed to repair them. However, no certificate of zoning should be suspended or revoked without giving the defendant the right to challenge the action. The defendant has the right to confront the witnesses and to present evidence before be- ing deprived of a vested right. There should be a means to appeal the decision of the zoning administrator. In tough economic times, a company may expand or even change its business to remain viable. This is an example of how businesses get into trouble if they don't pay attention to the zoning ordinances. Problems happen when a business expands into an ac- tivity not allowed in the zoning district where it is located. The city has a dilemma in that it doesn't want to put the owner out of business but also wants to maintain the integrity of its zoning code. In this type of situation, the community development office may be able to come up with an alternative plan for the owner if there is a location elsewhere in the city with the proper zoning classification for the use. This type of solution is better than litigation if it is feasible. Illegal Conversions Illegal conversions of buildings are common in residential areas —for example, a single- ZONINGPRACTICE 1.17 AMERICAN PLANNING ASSOCIATION I page 5