Help with interpretation of expansion of non-conforming use

[dandy_warhol]

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?

[Richmond Jake]

Here's the answer to the question.

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.

[dandy_warhol]

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?

[Tide]

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.

[mendelman]

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.

[Richmond Jake]

Thank you. Now how do I convince Legal Counsel of this?

Send a link to my post to your counsel?

That will be $250.

[btrage]

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.

[Joe Iliff]

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?

[mendelman]

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.

[Joe Iliff]

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?

[mendelman]

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.

[Tide]

^^^^ 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.

[TexanOkie]

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.

[Joe Iliff]

^^^^ 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.

[mendelman]

^^^^ 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.

[dandy_warhol]

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.