Agenda - Planning Commission - 07/01/1997

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-f i Page 2 - June. 10, 1997 Z.B. 9fo Nonconforming Use - Can city bury cemetery's attempt to build new mausoleum? City of Chesapeake v. Gardner Enterprises Inc., 482 S.E.2d 812 (Virginia) 1997 Since 1953, Gardner Enterprises Inc. owned 47 acres of land in Chesapeake, Va., that it used as a cemetery. After the city passed a 1969 ordinance designating cemeteries as conditional uses, the cemetery continued as a nonconforming use. On four separate occasions between 1969 and 1993, the cemetery received building permits to construct mausoleums without ever getting a conditional- use permit. The city's ordinance did not prohibit the construction of additional structures to support a nonconforming use. In 1993, the city adopted an amendment to the zoning ordinance, establishing the following restrictions: Buildings with nonconforming uses could not be enlarged or altered, except to change to permitted uses or uses supported by conditional use permits; and no additional buildings or structures could be built to support nonconforming uses on the same sites. The zoning code, on the other hand, stated buildings or structures could exist as nonconforming uses - but any alterations to them had to conform to existing regulations. Two years later, the cemetery requested a permit to build another mausoleum. Pointing to the amendment, the zoning administrator denied the application and said the cemetery had to get a conditional-use permit before receiving any additional building permits. The cemetery appealed, but the board of zoning appeals affirmed the administrator's decision. The cemetery sued the city, arguing the amendment provision conflicted with one of the zoning code's provisions, which authorized limitations only on the nonconforming uses of buildings or structures. The court agreed, and declared the amendment provision invalid, saying it prohibited additional structures on nonconforming uses of land, while the code limited only nonconforming uses of buildings or structures. The city appealed. It argued the court misinterpreted the code's meaning by distinguishing between the uses of land and the uses of buildings. In addition, the city claimed the code allowed it to prohibit the construction of nonconforming land uses. The cemetery argued the code prohibited construction only on nonconforming buildings, or structures housing nonconforming uses. According to the cemetery, the city could not restrict the construction of additional buildings to support a nonconforming use as long as the character of the land use did not change. DECISION: Reversed. While the code addressed the restrictions on altering nonconforming structures and buildings, it remained vague on the issue of additional structures on land supporting a nonconforming use.