Arbitrary and capricious enforcement of codes?

[VaDesigner]

In short: we purchased the largest historic structure in our small downtown and are not permitted to open because of a gravel parking lot.

Our Town Code states the following:

(b) (4) Residential parking surfaces. All single-family and two-family dwellings shall have parking areas and access drives with an all-weather surface. All other residential uses shall have a hard-surfaced parking area and access drive.

(c) (2) All commercial uses. All business uses shall have a hard-surfaced parking area and access drive. No parking space or loading area shall be located nearer the front lot line than the front facade of the main building. For corner lots, no parking space or loading area shall be located nearer the front lot line nor the side lot line along the street, than the facades of the main building, If all parking spaces are located behind the rear facade of the main building, a ten percent reduction in total off-street parking will be permitted.

(3) Commercial structures in the B-1 zone. In the B-1 business district structures which existed as of October 10, 1979, and which contained commercial uses at that time will not be required to have additional parking spaces above those provided as of October 10, 1979. Should there be a break in continuous commercial use in excess of 24 months, the above exemption shall not apply. However, the town council may, at its discretion, grant a waiver in case of hardship. All new commercial construction on vacant land or commercial uses begun where no commercial use existed as of October 10, 1979, whether or not such property was previously zoned business, shall provide the number of spaces required by other sections of this chapter.

Our "development" has been stalled for 18 months over one issue: paved parking. Two months ago, I requested an extension to use our gravel parking lot for 9 hours a week between May 1 and September 30 for a farmers market, which operated last year.

For starters, there is no definition of "hard surfaced parking". Secondly, our building is not even remotely conforming... the building sits right smack against the rear lot line, thus the entire front is parking, contrary to the code above.

From a development side of things, the banks will not lend money due to not being able to show cash flow, despite having ample collateral, and a solid business plan showing projected cash flow. The Town will not allow us to open our doors in order to gain cash flow until we have paved our parking lot, which is currently gravel and has operated for the last 80 years as such. Granted, the building sat vacant for 10 years, thus no grandfathering.

However, there is another part of the code that states: The purpose of these regulations [of the B-1 District, which our property is in] is to protect the old and historic landmarks, not only for their own value as community resources, but also because of their contribution to the town's unique character; to promote the protective maintenance of historic structures; to protect, enhance and perpetuate such buildings, structures, and landscape features which represent elements of the town's cultural, social, economic, political and architectural history; to stabilize and improve property values; to foster civic pride in the town's past; to protect and enhance the town's attractions to tourists and visitors and the support and stimulus to business and industry thereby provided; to strengthen the economy of the town; and to promote the use of historic resources for the education, pleasure and welfare of the people of the town; to prevent the encroachment of buildings and structures which are architecturally incongruous with their environs, within areas of special historic character; to prevent the creation of environmental influences adverse to the purposes stated in this section; to ensure that new structures and uses within such district will be in keeping with the character to be preserved and enhanced.

"Further, the purpose of this central business district is to recognize and foster through legislation the distinctive character of the original old Mount Jackson commercial district and to provide for the protection and preservation of the traditional image and history of that unique area as it presently exists and to promote and enhance future development which is compatible with that character and heritage as symbolized by the excellence in design, architecture of that period of development of Mount Jackson while blending private with public development and maintenance of that valuable distinct character.

"The town has made the legislative determination that the preservation of the existing traditional period character of the B-1 zone and requiring that future development within the zone be in keeping with those same high standards of that town character and heritage is in the best interests of the community, will promote long-term economic growth, encourage the optimum use of the real estate within the zone, attract new business, enhance the tax base of real estate and the taxable value of businesses within the area, encourage employment and commercial growth, and in general benefit the health, safety and welfare of the community as a whole."

There are other businesses and residences in Town that operate with gravel lots, contrary to the codes listed above.

What are your thoughts on whether this is an arbitrary and capricious enforcement of the codes? It is a small town and well within the ability of the Council to grant an exemption, which they do for most everyone else in Town.

Is there a case that the failure to cooperate and allow us time for the parking lot to be paved, is in direct opposition to the purpose and intent of the code as it relates to "attracting new businesses, encouraging growth in the District in which our building is?

[Kingmak]

If you feel that your right to due process is being infringed upon. Tell the person in charge and/or talk to a lawyer.

[VaDesigner]

Lol! The persons in charge are those who are arbitrarily enforcing the codes. Attorney has been contacted.

[The One]

A couple of questions.....

How large is the lot?
Exactly how many parking spaces are required under the code (include handicap spaces)
Just because most of the front of the lot is vacant does not automatically require all of it to be parking. Are they telling you that all of the area is needed for parking?

The other owners in town may have been continually operating with gravel lots prior to the code being implemented and therefore are considered legal non-conforming cases. Since your property had a recent change in use and went un-used for a period of time(10 years), that explains their position.

The fact there are other gravel parking areas in town could work to your advantage. Try suggesting recycled asphalt for the first year with a transition to asphalt after you are able to make some money. Also suggest landscape upgrades or improvements in the first year to make up for the other issues.

Since you will not be able to comply with c 2 considering the location of the building on the rear property line, this should be a good case for a variance. The absolute best reason for a variance is a physical constraint not created by you as the owner.

If this is Luray, I used to run the Shenandoah River from there to Front Royal back in the early 1990's (fun river trips).

[dw914er]

In short: we purchased the largest historic structure in our small downtown and are not permitted to open because of a gravel parking lot.



There are other businesses and residences in Town that operate with gravel lots, contrary to the codes listed above.

What are your thoughts on whether this is an arbitrary and capricious enforcement of the codes? It is a small town and well within the ability of the Council to grant an exemption, which they do for most everyone else in Town.

Is there a case that the failure to cooperate and allow us time for the parking lot to be paved, is in direct opposition to the purpose and intent of the code as it relates to "attracting new businesses, encouraging growth in the District in which our building is?

Most codes have a statement which enables the implementation of their parking regulations after codification. Typically any building or structure that is constructed or located, or any use of land established after the effective date of the codification would be required to provide parking to the new standards. Depending on the details of the other properties, this could explain why they still have gravel lots (e.g. the use of land was prior to the change). As a note, there are usually certain exceptions granted in regards to designated historical properties, but my personal experience had regulations that limited those exceptions to either the location of parking and/or a parking requirement reduction. I cannot comment on the specifics of your point of contention simply because I do not have enough information; this is just my initial thoughts on what could be the case. As a standard practice, forum posters here suggest you talk to a lawyer if you seriously feel like there is something wrong; a lawyer can do the appropriate research and advise you accordingly.

I am not exactly sure how a paved driveway discourages business and growth though.

[VaDesigner]

Really, what this is coming down to is arbitrary enforcement of the Town codes. Other NEW businesses have been permitted to operate without paving.

[Tobinn]

In my fair city, our Code includes a change of use as Development/Redevelopment. When development/redevelopment happens the Code gets kicked in. A change of use would be something like restaurant changing to retail or retail changing to office or whatever. Now, there are lots of things which are considered as "retail sales and service" including a regular store, salon, child care, take-out only restaurant, etc. So, a barber shop moves out and a Dominos moves in - no change of use. A barber shop moves out and an office moves in - change of use and, with certain specific exceptions, the Code gets kicked in and things get interesting. It may be a bit like what's happing in this instance. Or not, what do I know? Just a thought.

[SW MI Planner]

Really, what this is coming down to is arbitrary enforcement of the Town codes. Other NEW businesses have been permitted to operate without paving.

As others have mentioned here, it's typical for zoning codes to require properties be brought up to code at a change of use. Keep in mind that every property is different; especially when/if you are dealing with legal nonconforming parcels it's difficult to compare one to another.

Is this a situation where you have talked to someone that has given you a verbal denial? Or have you submitted any official application (variance, C of O, etc?) that has been denied? Most ordinances and state enabling legislation provides for variances as well as means of appeal, but only for official variance requests that have been acted upon by the board. I would suggest reviewing the local ordinance as well as enabling legislation to determine the process there, and then if you haven't already, start with an official application. Here in MI, that could be an appeal to the ZBA of the Zoning Administrators decision, and then subsequently an appeal of their decision to circuit court.

[michaelskis]

As others have mentioned here, it's typical for zoning codes to require properties be brought up to code at a change of use. Keep in mind that every property is different; especially when/if you are dealing with legal nonconforming parcels it's difficult to compare one to another.

Is this a situation where you have talked to someone that has given you a verbal denial? Or have you submitted any official application (variance, C of O, etc?) that has been denied? Most ordinances and state enabling legislation provides for variances as well as means of appeal, but only for official variance requests that have been acted upon by the board. I would suggest reviewing the local ordinance as well as enabling legislation to determine the process there, and then if you haven't already, start with an official application. Here in MI, that could be an appeal to the ZBA of the Zoning Administrators decision, and then subsequently an appeal of their decision to circuit court.

Additionally, the OP might want to check to see if there is a threshold of improvements needed before it triggers compliance of the parking lot. I have seen a few ordinances that state that when a particular amount of improvements are made to a structure (percentage of value, percentage of square footage altered by activity requiring a building permit, or similar quantitative measure) then items such as parking requirements including surface, layout, and access, need to be brought into compliance.