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Thread: Help with interpretation of expansion of non-conforming use

  1. #1
    Cyburbian dandy_warhol's avatar
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    Help with interpretation of expansion of non-conforming use

    I need help understanding what our legal counsel is thinking.


    According to code, multi-unit dwellings with 5+ units are allowed in the C-4 (Neighborhood Commercial District) with a SUP/Site Plan Review by the Planning Commission.


    A pre-existing non-conforming multi-unit dwelling with 5+ units exists in the C-4. They never received a SUP/Site Plan Review, they are grandfathered.

    The owner now wants to convert another building on-site to single-unit apartment.

    We had an internal discussion over what approvals would be required and have not come to a consensus.

    The Zoning Administrator and I believe that the applicant only needs to go before the PC to obtain a SUP/Site Plan Review for the entire lot. Once they obtain the SUP/Site Plan Review then they will no longer be non-conforming.

    Legal Counsel believes that they need to go before the PC for the SUP/Site Plan Reivew & the ZBA for an expansion of a non-conforming use.

    What say you?
    In the end, we will remember not the words of our enemies, but the silence of our friends. -Martin Luther King Jr.

  2. #2
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Here's the answer to the question.
    Quote Originally posted by dandy_warhol View post
    Once they obtain the SUP/Site Plan Review then they will no longer be non-conforming.
    No need to go before the ZBA once it becomes conforming.

  3. #3
    Cyburbian dandy_warhol's avatar
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    Quote Originally posted by RichmondJake View post
    Here's the answer to the question.


    No need to go before the ZBA once it becomes conforming.
    Thank you. Now how do I convince Legal Counsel of this?
    In the end, we will remember not the words of our enemies, but the silence of our friends. -Martin Luther King Jr.

  4. #4
    Cyburbian Tide's avatar
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    What is the reason they are grandfathered? I would agree with you that the additional unit would be the only one that would need PC approval. As far as building code I again would say that it is only the new unit if it is detached from the main structure.

  5. #5
    Unfrozen Caveman Planner mendelman's avatar
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    I agree with RJ. Just take it through PC and make the property compliant (provided there aren't any bulk variations that would be required).

    What does your immediate boss think? Maybe he needs to tell Legal that your's is the interpretation and they need to not dictate, but assist.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  6. #6
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Quote Originally posted by dandy_warhol View post
    Thank you. Now how do I convince Legal Counsel of this?
    Send a link to my post to your counsel?

    That will be $250.

  7. #7
    Cyburbian btrage's avatar
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    Or code specifically states that if a nonconforming use wishes to expand, but is also now eligible for SUP/Site Plan Review, than it must be handled by the Planning Commision through Site Plan Review and no Zoning Board of Appeals.

    We added this language 2 years ago to handle the scenario you're describing.

    Perhaps legal counsel would be comfortable with your interpretation if staff agreed to present language like I describe at a later date so there will no longer be any confusion or vagueness.

  8. #8
    Cyburbian Joe Iliff's avatar
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    Quote Originally posted by dandy_warhol View post
    Thank you. Now how do I convince Legal Counsel of this?
    Describe it as the applicant having two options, become conforming with an SUP, or stay non-conforming and expand with ZBA approval. If you get one, you don't have to do the other. Legal Counsel should be able to understand that ZBA is quasi-judicial, while PC is legislative. Either make your case to court or congress, but not both. Does anything ever go to BOTH ZBA and PC? Ever?
    JOE ILIFF
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  9. #9
    Unfrozen Caveman Planner mendelman's avatar
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    Off-topic:
    Quote Originally posted by Joe Iliff View post
    Does anything ever go to BOTH ZBA and PC? Ever?
    It happens in many munis in Chicagoland. Go to PC for site plan approval - go to ZBA for bulk regulation variances. It's stupid and duplicitous, though.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  10. #10
    Cyburbian Joe Iliff's avatar
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    Quote Originally posted by mendelman View post
    Off-topic:

    It happens in many munis in Chicagoland. Go to PC for site plan approval - go to ZBA for bulk regulation variances. It's stupid and duplicitous, though.
    Sounds like those are two separate things. The variance wouldn't require the approval of both bodies would it? Just ZBA, right? PC couldn't grant a variance if ZBA denied it, nor deny it if ZBA granted it, yes?

    If PC and City Council want to rezone something or grant an SUP, how would ZBA stop them?
    JOE ILIFF
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    Martin Luther King, Jr.

  11. #11
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by Joe Iliff View post
    Sounds like those are two separate things. The variance wouldn't require the approval of both bodies would it? Just ZBA, right? PC couldn't grant a variance if ZBA denied it, nor deny it if ZBA granted it, yes?

    If PC and City Council want to rezone something or grant an SUP, how would ZBA stop them?
    In most of the situations, both PC and ZBA are recommending bodies to the elected officials. So - no real problem.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  12. #12
    Cyburbian Tide's avatar
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    ^^^^ The ZBA or BZA should never be a recommending body. They are quasi-judicial and all decisions are final. To appeal a zoning board decision someone must go to circuit court.

  13. #13
    Cyburbian TexanOkie's avatar
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    This might seem blasphemous to some, but have you asked the applicant which option he would prefer? I'm not sure what regulations you have that might keep the applicant wanting of a non-conforming use, as in Texas any additions (even in a non-conforming use) for anything non-structural related would have to conform with existing codes to deal with it anyway. If it's the same where you're at, the applicant may enjoy only having to go to one board and not having to wait the extra time and pay the extra $$$ to go before ZBA.

    Just my two cents.

  14. #14
    Cyburbian Joe Iliff's avatar
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    Quote Originally posted by Tide View post
    ^^^^ The ZBA or BZA should never be a recommending body. They are quasi-judicial and all decisions are final. To appeal a zoning board decision someone must go to circuit court.
    That's my experience as well, but there may be other situations out there with which I am unfamiliar.
    JOE ILIFF
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    Dave Ramsey

    "Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think."
    Martin Luther King, Jr.

  15. #15
    Unfrozen Caveman Planner mendelman's avatar
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    Quote Originally posted by Tide View post
    ^^^^ The ZBA or BZA should never be a recommending body. They are quasi-judicial and all decisions are final. To appeal a zoning board decision someone must go to circuit court.
    Maybe in some states, but here is Illinois it's allowed.
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

    Six seasons and a movie!

  16. #16
    Cyburbian dandy_warhol's avatar
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    Quote Originally posted by mendelman View post
    any bulk variations that would be required).

    What does your immediate boss think? Maybe he needs to tell Legal that your's is the interpretation and they need to not dictate, but assist.
    ha ha ha. Oh, that's rich. My immediate boss knows nothing about zoning or site plan review.

    Btrage, I like your idea. Our code is very vague and ambiguous in many areas. Now if I could only find the time to draft some language to help clarify these situations. Maybe once our new Pres. Planner comes aboard, and is trained.
    In the end, we will remember not the words of our enemies, but the silence of our friends. -Martin Luther King Jr.

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