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Thread: Change in use standards. Legal nonconforming?

  1. #1
    Cyburbian lilschmidty's avatar
    Registered
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    Midwest
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    Change in use standards. Legal nonconforming?

    I'm working on an appeal where the petitioner is arguing that an auto repair business does not have to meet the use standards set forth in our land development code for auto repair businesses because the use is legal nonconforming.

    Here is the background. In 2008, the auto repair business began operating at the subject property. In 2007, our Land Development Code was passed which changed the zoning for this parcel from C2 to CG. In each zoning district and ordinance, auto repair is a permitted use. However, in the Land Development Code, auto repair must meet certain use standards such as screening of vehicles awaiting repair, limiting the number of vehicles awaiting repair, all repair must be conducted inside a building, and only one auto service bay door is allowed.

    The attorney working on this case is arguing that the use standards do not have to be met because auto repair/sales businesses had operated legally under the old code with no int interruptions in use and no abandonment. However, he's trying to argue that even though auto sales was the primary use in the past, auto repair had more "man hours" than the sales.

    Anyways, my question is, does this business need to meet the use standards of our Land Development Code or are is it a legal nonconforming use?

    Thanks for your help in advance.

  2. #2
    Unfrozen Caveman Planner mendelman's avatar
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    Hard to say without intimate knowledge of your nonconforming regs, but.....I would say the business owner has a pretty good case for arguing that the business had been established under the old code and that any site/building improvements/changes required by the new code don't apply. I think you may have an easier time getting compliance with the operational standards (ie no repair outside, etc.) since the cost for compliance is probably zero.

    One thing you may need, if you don't already have it, is language in your applicable use standards section that explicitly requires compliance with all the new standards (improvements and/or operations - depending on your political fortitude) for all pre-existing uses.
    Last edited by mendelman; 21 Oct 2009 at 4:12 PM.
    I'm sorry. Is my bias showing?

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

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  3. #3
    Cyburbian Tobinn's avatar
    Registered
    Aug 2005
    Location
    Clearwater, FL
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    260

    Nonconforming Uses

    I'm a little confused as to the purpose of the question or the story behind it. Is the City looking to make the property owner bring the site into complete conformance with Code? What triggered it? Is this being applied to ALL nonconforming uses/structures in town?

    A few random thoughts:
    Does your Code have a provision dealing with legally permitted, nonconforming uses/structures?

    If not, maybe it should.

    The Codes with which I am familiar that also have such provisions typically deal with these sorts of things by stating that legally permitted nonconforming uses/structures are effectively grandfathered in. However, should the use be discontinued (i.e. occupational license lapse or the primary structure be damaged or destroyed to an extent exceeding 50 percent of the assessed value (based on the most recent property appraiser values) that the use and/or structure may not be reestablished on the site as a matter or right. Read into that the variance/conditional use route may be pursued.

    Provisions usually permit routine maintenance such as re-roofing, painting, etc.

    Provisions can also even allow expansion of a nonconforming structure provided that the expansion doesn't exceed a certain percentage of the existing structure and that it otherwise meets all applicable Code requirements in and of itself.

    Provisions also extract specific areas of potential nonconformity such as parking or landscaping. I can get into later that if you want.
    At times like this, you have to ask yourself, "WWJDD?"
    (What Would Jimmy Durante Do?)

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