Agenda - Planning Commission - 02/02/2017

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family home that is converted into a three -unit apartment building. Multifamily buildings are generally not permitted in a single-family residential area unless there is a legal non- conforming use. The first step is to determine if the use was ever legal. Older buildings con- verted before the zoning ordinance took effect may be legal and grandfathered in under the zoning code. If the building has been illegally convert- ed to a use that is not permitted, a complaint can be filed, not just for the zoning violation, but also for any building code violations. Typi- cally, when a building is converted improperly, the owner does not obtain building permits for the construction and often violates the building code by doing improper electrical or plumbing work. These types of buildings may also violate the fire code when people are liv- ing illegally in the attic and the basement. An emergency condemnation under the property maintenance code may be necessary if the occupancy constitutes an immediate hazard to the residents. Once there is compliance, how does the local government assure there is no reconver- sion? One possibility is to record the notice of violation with the recorder of deeds so that a Establishing Clear Discontinuance Provisions This example from Woodridge, Illinois, shows how a zoning ordinance can clarify when a nonconforming use is con- 0 sidered to be discontinued: A nonconforming building, structure or portion thereof, all or substantially all of which is designed or intended for a use which is not permitted in the dis- trict in which it is located, and in which the use has ceased by dis- continuance or abandonment on the effective date hereof or there- after is abandoned and remains unoccupied, or is not used for a continuous period of one year, shall not thereafter be occupied or used, except by a use which conforms to the use regulations of the district in which it is located 09-9-z-5)- future purchaser knows that the building is a single-family residence. Once the defendant complies, a notice of compliance should be recorded. Anyone who buys the property after that cannot claim that they did not know the property was a single-family residence be- cause it will appear on a title search at the real estate closing. Legal Nonconforming Uses In a city or county that contains older build- ings, both commercial and residential, defendants will try to argue that their use is "grandfathered in." While the burden of proof in most jurisdictions is on the defendant to show that the use was legal when it began, it is important to have systems in place that can retrieve documents regarding the property decades later. Many of these cases go back decades, after three or more major revisions of the zoning code. If the zoning administra- tor cannot access the necessary information to show that the use was never legal or that the use was illegally expanded or intensified, it will hamper negotiations to resolve the is- sue. At times, the language used in the older zoning code is vague, which leads to disagree- ments over interpretation. Rather than rushing into litigation, the zoning administrator, with the proper legal advice, needs to honestly review whether the ambiguity in the old ordi- nance will make it unlikely that a court action will succeed. A rule of legal construction re- quires that any ambiguity in an ordinance be resolved against the party that wrote it (i.e., the local government). Most zoning ordinances have a provision whereby a legal nonconforming use is aban- doned if the structure is empty for a set period of time. The owner will usually counter with an argument that he or she always had an intent to resume the use and did not truly abandon the property. This becomes an issue of fact that the city or county needs to rebut. This is why casual conversations with owners can become critical evidence. These encounters, need to be documented so that the inspector can refresh his or her recollection months or even years later. CHOOSING THE PROPER COURT VENUE Whenever an enforcement action is brought against a defendant, there needs to be a deci- sion as to whether the case should be brought as a simple complaint versus an action in the chancery division of the circuit court. Most Many zoning codes prohibit parking vehicles within front- or side -yard setbacks. ZONINGPRACTICE 1.1.7 AMERICAN PLANNING ASSOCIATION I page 6