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Thread: Expansion of Non-Conforming Open Use

  1. #1

    Expansion of Non-Conforming Open Use

    I searched and found a similar thread:


    Our case is a little different. We expanded our extra-territorial "fringe" area in 1989. A junk yard was then located on a parcel within the captured area. The property owner has since expanded his lease-hold to some 44 acres, although junk cars are parked on about half that amount. We have aerial documentation and land-transfer records to affirm the expansions.

    The problem is our code never forecast the open use of land of a non-conforming use, staying instead inside a structure (and allowing one-time expansion to the full structure). Not a peep about land.

    Anybody have any experiences you'd care to share?
    Je suis Charlie Hebdo. Je suis Bataclan. Je suis Bruxelles. Je suis Nice.

  2. #2
    Cyburbian Cardinal's avatar
    Aug 2001
    The Cheese State
    In my experience, defining a use as limited to something in a structure is very unusual. The use or zoning is typically considered to go with the property.

  3. #3
    Cyburbian Richmond Jake's avatar
    Aug 2001
    The Emerald Coast
    Years ago when I was doing code compliance, a question came up about nonconforming animal keeping. Specifically, a horse kept on a parcel too small under current regulations. Well, the horse died and I maintained they lost their nonconforming rights and could not get another horse. Needless to say, I lost that argument when the owner when to a Board member to put the pressure on the department head to change my decision.
    Annoyingly insensitive

  4. #4
    I should be more clear.

    "Use, Open. The use of a lot without a building or including a building incidental to the open use, such building having a ground floor area equal to 5% or less of the lot area."

    "Any non-conforming open use of land shall be discontinued within five years from the original adoption of this Chapter".

    These are the only mentions of open use in the Code.

    Fourteen years have passed and we did not shut him down at the five year mark. Now the neighbors are complaining rightly that something ought to be done.

    The city can't afford to buy four lots, let alone 44 acres of junked cars spewing filthy fluids on the ground...
    Je suis Charlie Hebdo. Je suis Bataclan. Je suis Bruxelles. Je suis Nice.

  5. #5
    Corn Burning Fool giff57's avatar
    Jul 1998
    On the Mother River
    Order the cars removed as the non-conforming time period has expired. If you lose in court, it looks like the city tried and you are off of the hook.
    “As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the State is not far from its fall”
    Jean-Jacques Rousseau

  6. #6
    Cyburbian SW MI Planner's avatar
    Feb 2002
    Yah, I don't know about your situation - that's a tough one.

    "Any non-conforming open use of land shall be discontinued within five years from the original adoption of this Chapter".
    Sorry if this is a dumb question, but is this even legal - can you could have an amortization period for nonconforming uses? We have very few and they are not problematic in the least bit, so I haven't had to deal with this at all. Someone enlighten me!

    Our ordinance states that a nonconforming use of land cannot be expanded - a nonconforming structure can be expanded by 25% as long as it complies with other regulations (setbacks, etc.) In my opinion, he was under his rights to expand as long as your ordinance didn't prohibit expansion.

    As far as not doing something about it earlier (closer to the 5 year mark), I don't know about that one. I agree with Giff - take it to court and see what happens.

    But, I could be way off base - it's happened before My recommendation is to talk to your municipal attorney.

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