Agenda - Planning Commission - 11/01/2007

Home

Zoning Bulletin in the zone to be used as a commercial garage or car repair shop. None- theless, Overweg continued to' moonlight doing repairs from his garage. In 2001, Overweg quit his employment at the dealership and began operating a full-time business from his garage. When confronted about the business by the ciry, Overweg acknowledged that the business violat- ed the zoning ordinance but claimed that it should be grandfatheredun- der the nonconforming use provisions. The city disagreed, 3.?d it sought a court-ordered injunction to stop Ovetweg from operating the business from his garage. Ultimately, the court decided that Overweg's use of the property as an automotive repair business could not be grandfathered because the use from 2001 on was a different and a significant expansion-as opposed to a permissible "intensmcation"-of the prior use. The court found that the use was in violation of the ordinance and, therefore, illegal. Overweg appealed. DECISION: Affirmed. On appeal, the issues before the court were: 1) whether Overweg's use of the property prior to the enactment of the zoning ordinance was sufficient to establish it as a noncoriiorming use; 2) whether Overweg's use of the property after the city enacted its zoning ordinance constitut- ed either a different, enlarged, and/or expanded use of the property; and 3) whether Overweg's continued use of the property was in violation of the city's zoning ordinance. With regard to the first issue, the appeals court found that the trial court was not clearly erroneous when it had concluded thatOverweg's use of the metal garage for a repair business was "minimal and sporad- ic" at the time that the zoning ordinance was enacted. When Overweg first started using the metal garage to conduct his repair business, he was sti1l employed full time for the dealership. The family moved to the new home near the metal garage in January 1999. During the first six months of 1999, Overweg had $114 in income from the repairs; during the sec- ond six months of 1999 that amount increased, but only to $163.85. In late 2000 or early 2001 Overweg quit "moonlighting" in vehicle repair at the request of his employer for at least two months, and it was not until May 2001, well after the enactment date of the ordinance, that Overweg quit his job and began operating his business full time. The burden to "clearly establish the prior use to avail himself of the 'grand- father' rights" was not met by Overweg, because the use of the metal garage was minimal at best before the ordinance was enacted and a full- time business when the city sought injunction. Because Overweg could not show that the existing use as a full-time business was in effect when the ordinance was enacted, the appeals 8 82 .-~ I ); ;i 'I !! \1 I' 11 :1 Ii II II ii Ii II ;1 I. Ii iI Ii !I Ii II Ii 11 II 11 II II !! 'I II II' I. il II !i j: Ii :i i\ II ;1 11 :1 it i! :i iI !)