Interpretation Re-use of a non-conforming structure for a conforming use

gtpeach

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#1
Our ordinance dealing with non-conformities is very poorly written and lumps everything together. The situation is that we have a very contentious project that wants to reuse an existing legal non-conforming structure (it doesn't meet the front setback requirements) for a restaurant, which requires a special use permit. The building has been vacant for more than two years, so it doesn't have any vested rights to be used for a non-conforming use.

My interpretation of our ordinance is that any new use that goes into the building will have to conform to the ordinance, but the building itself is able to continue to exist as it. The County Administrator is now weighing in saying that before a new use can go into the building, the building will have to meet the current requirements of the ordinance. Following his logic, though, means that ANY non-conforming structure that has been vacant for a period of more than two years would not be able to be used for anything since inhabiting a non-conforming building makes the use non-conforming. I just explained that to him, but I'm curious to know if anyone disagrees with me.


11-1-1 If at the time of enactment of this ordinance, any legal activity which is being pursued, or any lot or structure legally utilized in a manner or for a purpose which does not conform to the provisions of this ordinance, such manner of use or purpose may be continued as herein provided.

11-1-2 If any change in title of possession or renewal of a lease of any such lot or structure occurs, the use existing may be continued.

11-1-3 If any nonconforming use (structures or activity) is discontinued for a period exceeding two (2) years after the enactment of this ordinance, it shall conform to the requirements of this ordinance, except that, when a written notice of intent to continue the use of said structure or activity after the expiration of the two (2) year period shall be submitted by the owner of the property before the two (2) year discontinuance period shall expire, which notice shall state that the use will be continued within the next two-year period, the nonconforming activity may continue for an additional two years. The additional two-year discontinuance period permitted by this subsection may neither be extended nor renewed.

11-1-4 Whenever a nonconforming structure, lot or activity has been changed to a more limited nonconforming use, such use may not return to the previous nonconforming use but may only be changed to an even more limited use.

11-2 Permits.

11-2-1 All nonconforming uses shall obtain a certificate of occupancy. Such permits shall be issued promptly upon the written request of the owner or operator of a nonconforming use.

11-2-2 The construction or use of a nonconforming building or land area for which a permit was issued legally prior to the adoption of this ordinance may proceed, provided such building is completed within one (1) year, or such use of land established within thirty (30) days after the effective date of this ordinance.

11-3 Changes in district boundaries. Whenever the boundaries of a district are changed, any uses of land or buildings, which become nonconforming as a result of such change shall become subject to the provisions of this article.

11-4 Expansion or enlargement. 11-4-1 A nonconforming use or structure to be expanded or enlarged more than fifty (50) percent of the area occupied by such use or structure at the time of passage of this ordinance, shall conform with the provisions of this ordinance, except that any expansion of use or structure shall conform to Article 13 of this ordinance.

11-4-2 A nonconforming activity may be extended throughout any part of a structure, which was arranged or designed for such activity at the time of enactment of this ordinance.
 
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#2
Your ordinance seems to mix and match the terms use and structure. In every City in which I have worked, the issues of nonconforming use and nonconforming structure are separate from each other. If the use ceases for, in our case, 12 months, then that use cannot be reinstated. However, the nonconforming structure that use was occupying could still continue to be used (but now only with a conforming use). So the question of the expiration of a nonconforming use is completely independent of whether or not the structure is nonconforming. However, I think a strict reading of your 11-1-3 may be as your County Administrator said. However, there may be some legal issues (I am not an attorney) with that interpretation. If you haven't brought in your County Attorney, I would definitely do so.
 

gtpeach

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#3
We're trying to get the County Attorney to weigh in. He's verbally supported the determination I have made, largely based on the wider-spread implications that I mentioned previously. If you think of a single-family house for example not meeting setbacks, if that house is vacated for a period of two years, then it couldn't be used for a house again because the structure is non-conforming causes the use to be non-conforming, and once the use is discontinued for two years, there's no longer a right to pursue it. So I don't think his interpretation is one that makes sense, nor is one that we really want to start applying across the board.
 

gtpeach

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#4
Of course, we do need to re-write this section of the ordinance (our entire ordinance is terrible in general), but if we re-write it, it would be with my interpretation of what the ordinance should say as listed above which also may not be popular.
 

DVD

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#5
You're talking about a couple different things.
The use is non existent at this point so any use must be compliant.
The building is still nonconforming in terms of say setbacks.

Option 1, be harsh and say the whole site needs to be compliant. Sounds like what the CA is saying and I've seen that done in several places.
Option 2, use must be compliant, building will be made compliant depending on proportionality. If the building crosses whatever line then the portion of the site affected should be made to meet code.

Either way the building will require some building code upgrades depending on building code triggers, but that has nothing to do with use. Change of use (according to building code) is a trigger for updates. Maybe that's what the CA is talking about. People always confuse building use and zoning use.
 

gtpeach

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#6
You're talking about a couple different things.
The use is non existent at this point so any use must be compliant.
The building is still nonconforming in terms of say setbacks.

Option 1, be harsh and say the whole site needs to be compliant. Sounds like what the CA is saying and I've seen that done in several places.
Option 2, use must be compliant, building will be made compliant depending on proportionality. If the building crosses whatever line then the portion of the site affected should be made to meet code.

Either way the building will require some building code upgrades depending on building code triggers, but that has nothing to do with use. Change of use (according to building code) is a trigger for updates. Maybe that's what the CA is talking about. People always confuse building use and zoning use.
He's looking for ways to stall the project or prevent it from going forward without letting the Board take action on it, in my opinion. Or he's at least responding to pressure from constituents to find a way to shut down this project.
 

DVD

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#7
Just be careful it's not the board that's pushing him this way. It could go south if you bring it to them and they don't like it knowing they have to approve it. It puts them in a bad spot with their voters and you become the scape goat.
 

gtpeach

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#8
They don't have to approve it. Half the Board thinks I should interpret it this way because they know it'll get approved otherwise.

Here's my issue, though. Going by the County Administrator's interpretation, he thinks that once a non-conforming structure is out of use for two years, there are no uses that would be allowed in it without a variance. If you take him at his word (I pushed him on this a little bit), that means that even non-conforming dwellings that are too close to the road wouldn't be able to be re-inhabited without conforming to the ordinance. I don't think that's a road they want to go down. We have a LOT of those in our county, and my house was one that was left vacant for a decade before being purchased and renovated.

I've also publicly stated my interpretation in meetings. So I also feel like there may be an AICP ethics issue if I change my interpretation now. They could certainly appeal my determination to the BZA or something which would create a situation where my determination is over-ridden, but short of that, I'm not sure I can just flip my opinion now (and I also still stand by my determination). Our ordinance is written in a very terrible way that is really difficult to parse through, so if I apply good zoning principles that I'm already familiar with, my interpretation is the only one that makes sense to me.
 

DVD

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#9
Nothing in there says variance to me. It's either nothing goes or you allow it. Like you said, you going to reject the house that's non conforming even if it sat vacant for a couple years?
 

gtpeach

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#10
For those of you dying to know, the attorney finally issued his opinion, and he agreed with me. I feel so validated!
 
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