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Thread: Expansion of legal, non-conforming uses

  1. #1
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Expansion of legal, non-conforming uses

    For some unexplained reason, our land development regulations allow, as a matter of right, the expansion of a legal, non-conforming use up to 5,000 square feet or 20 percent of the size of the existing use, with a couple of minor stipulations.

    I attended mediation today in conjunction with a nightclub owner who expanded his legal, non-conforming use by approximately 100 percent without benefit of permits. My position, which our land use attorney does not agree with, is the property owner has extinguished his legal, non-conforming status, even if he obtains a demolition permit and returns the use to its previous dimensions.

    What does the Throbbing Brian say?

  2. #2
    Cyburbian boiker's avatar
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    Technically, if he can get a SUP/CUP for the 100% expansion, he could go that route?

    Technically, I think I side with the attorney. Only the addition is the current issue. If that is removed, then the remainder of the site/building retains it's original legal non-conforming status. This is also my local politically palatable solution. If he demo's down to 20% / 5,000sqft, then he needs to get a permit to allow the expansion.
    Dude, I'm cheesing so hard right now.

  3. #3
    Cyburbian Cardinal's avatar
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    I'm with Boiker on this. Demolition of the illegally-constructed addition would not impact the use within the existing portion of the building. Some codes have a provision which would require the use to be brought into conformity if a percentage of the building is removed, but I do not htink anything like that would apply here.

    It is possible that if he is forced to tear down the addition he may incur enough costs to force him to close. You might expect a long legal battle, though you would all but certainly prevail.
    Anyone want to adopt a dog?

  4. #4
    Cyburbian Plus
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    Glad I am not in your shoes on this.

    Given your situation, I am glad my fair city's code states:

    It is the intent of this ordinance to permit these nonconforming uses to continue until they are removed, but not to encourage their survival.
    It is further the intent of this ordinance that nonconforming uses shall not be enlarged upon, expanded, or extended, nor be used as grounds for adding other uses or structures which are prohibited elsewhere in the same zoning district.
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  5. #5
    Super Moderator luckless pedestrian's avatar
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    do you have such a penalty in your ordinance that says if you screw up all bets are off?

    I would love that in mine;otherwise, yeah, the lawyer is right -

  6. #6
    Cyburbian donk's avatar
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    In the legislative frameworks I am familiar with there are provisons for the expansion of legal non-conforming uses upon application to a committee of adjustment or council.

    No matter what expanding a use without a permit is a not permitted no matter if the use is legal or not. I would use the bad faith action of the owner to exemplify the rationale for full prosecution (building contrary to code) and make him tear it down and then apply for a permit. I won a case like this at the appeal board and in court, but the building still stands today.
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

  7. #7
    Cyburbian Plus Whose Yur Planner's avatar
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    I'm going to take the contrary position. They would need to rezoning the property to a district that would permit the use. They blew it when they expanded the business to the extent that they did. More than likely the didn't obtain building permits and/or inspections so there is no proof that the improvements meet code. The whole do first and ask permission later is junk.
    Last edited by Whose Yur Planner; 17 Jul 2006 at 9:06 AM.
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  8. #8
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Quote Originally posted by boiker
    Technically, if he can get a SUP/CUP for the 100% expansion, he could go that route?
    This remedy is not available under our code. Nightclubs are listed as allowed uses in only two zone districts in my county--this property is not in one of those zones.
    Quote Originally posted by Cardinal
    You might expect a long legal battle, though you would all but certainly prevail.
    The attorneys are estimating that a jury trial could happen in about one year. Yes, we'd win.
    Quote Originally posted by Whose yur planner
    They would need to rezoning the property to a district that would permit the use.
    That won't work either. Nightclubs are not permitted with 1000 feet of residentially designated property. The use is approximately 250 feet from residential.

  9. #9
    Cyburbian donk's avatar
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    Quote Originally posted by RichmondJake
    This remedy is not available under our code. Nightclubs are listed as allowed uses in only two zone districts in my county--this property is not in one of those zones.

    That won't work either. Nightclubs are not permitted with 1000 feet of residentially designated property. The use is approximately 250 feet from residential.
    Is an amendment to the Offical Plan and option? Not that based on the info provided would I be willing to support it, but the city could get the $$ and put the guy through the wringer.
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

  10. #10
    Cyburbian The One's avatar
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    Quote Originally posted by RichmondJake
    For some unexplained reason, our land development regulations allow, as a matter of right, the expansion of a legal, non-conforming use up to 5,000 square feet or 20 percent of the size of the existing use, with a couple of minor stipulations.

    I attended mediation today in conjunction with a nightclub owner who expanded his legal, non-conforming use by approximately 100 percent without benefit of permits. My position, which our land use attorney does not agree with, is the property owner has extinguished his legal, non-conforming status, even if he obtains a demolition permit and returns the use to its previous dimensions.

    What does the Throbbing Brian say?
    Strange.....if your code allows for any expansion of a "legal" non-conforming use....why wouldn't that then become "conforming".....most non-conforming regulations seek to phase out said non-conformities...not expand them. I get the legal issue....how can you call any of it a legal non-conformity after allowing an expansion....???

    No worries though, I got an equally strange code here (in captain Jack Sparrow's voice) :
    We allow junk storage and public nuisances (yes, this is the language in the code) depending on the size of the lot:
    1% of parcel size over 1 acre
    1,000sf at 3-5 acres.....800sf at 2-3 acres.....300sf at 1/2- 2 acres.....150sf bellow 1/2 acre......
    Skilled Adoxographer

  11. #11
    Cyburbian donk's avatar
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    Quote Originally posted by The One
    Strange.....if your code allows for any expansion of a "legal" non-conforming use....why wouldn't that then become "conforming".....most non-conforming regulations seek to phase out said non-conformities...not expand them. I get the legal issue....how can you call any of it a legal non-conformity after allowing an expansion....???
    Here is another one that I havce com eacross. The use within teh building was non conforming, but the building conformed. The owner came in got a building permit, which was permitted. Built the strucuture legally, then occupied it with the legal non-conforming use. (Not a legal use for the addition)
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

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