Agenda - Planning Commission - 07/11/2007

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Zoning Bulletin ril 1994, when its liquor license expired and was not renewed, alco- holic beverages were served at the restaurant. The cirf had passed an ordinance in the late 70s making the district in which the restaurant was located a residential zone. Under this rezoning, restaurants, cocktail lounges, and taverns were not permitted. O'Farrell Sisters was allowed to continue operating as a nonconforming use. A nonconforming use was a use that was lawful when a zoning restriction was enacted continued to exist legally under a "grandfather" clause. In 2004, Parks applied to the city for a liquor license. The city de- nied the application, finding that the request amounted to an expan- sion of a nonconforming use. Generally, nonconforming uses were regulated so that if the use was discontinued for more than a year, it would lose its legal status and would then have to conform to the ex- isting zoning regulations. Nonconforming uses also could not ordii'1ar- ily expand or intensify in nature. Parks appealed the city's decision to the state licensing board, and, in the meantime, the city sought an injunction from the court to pre- vent Parks from being able to serve alcohol at the restaurant. The trial court found in the city's favor, concluding that the sale of alcoholic beverages would constitute the addition of a separate nonconforming use under the city's zoning ordinance. Parks appealed. Decision: Reversed and returned to the lower court. Property could lose its nonconforming use status if the, use of the property were "enlarged or extended." However, "an intensification of a nonconforming use is permissible so long as the nature and character of the use is lli"'lch8.J."1ged and substantially the same facilities are used." The appeals court noted that the use made of the land at the time that the ordinance became effective was the standard used to deter- mine whether there was an unlawful enlargement of a nonconforming use. Here, the business had a liquor license when the property was rezoned and the restaurant became a nonconforming use. The appeals court found that reissuing a license would not substantially change the character of the restaurant; denial on the grounds that an 'expansion of use was created was not proper. The appeals court noted that other factors, including the small size of the bar and the owner's testimony that he had no intention of turn- ing the establishment into a "tavern," indicated that there would be no major change in use. The court noted that the restaurant "was a small family restaurant and even with the ability to sell alcoholic bev- erages will remain a restaurant." 8 104 ----.... \ j