Daily Development for Tuesday, April 11, 1995

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

The first case is just for general information. The next two demonstrate an interesting little corner of the law. I thought this might provoke some general discussion of the notion of pre- existing nonconforming uses.

Anyone have a "hobby horse" for this issue?

ZONING AND PLANNING; PRE-EXISTING NONCONFORMING USE: A gravel parking lot is a pre-existing nonconforming use in the context of a municipal requirement for hard surfacing of parking areas. Haffner's v. Kent Bd. of Zoning Appeals, 639 N.3. 2D 845 (Ohio App. 11 Dist. 1994).

ZONING AND PLANNING; PRE-EXISTING NON CONFORMING USE; MINING: Mining use in one area of a parcel land is entitled to be extended to balance of parcel as a pre-existing use, but owner cannot significantly intensify rate of extraction. Hansen Bros. v. Bd. of Supervisors of Nevada County, 35 Cal. Rptr. 358 (Cal. App. 1994) Prior California authority had established the precept that a mining extraction activity on part of a parcel of land "imprints" the balance of the parcel with the same character of pre-existing use. (Such "imprinting" incidentally, does not exist in other contexts. See, e.g. Beck v. Springfield Tnshp. Bd. of Zoning Appeals,

624 N.E.2d 286 (Ohio App. 1993) (Landowner may not expand pre-existing mobile home park to new areas of parcel in violation of current zoning law, even if the limitation may cause the existing use to "whither and die.))

The California court drew the line, however, as to increased extraction. The proposed increased use contemplated extraction of gravel at a rate greatly in excess of prior rates. The landowner argued that in the mining business, rates of extraction reflect responses to demand, and that mining at higher rates is still the carrying on of the same business, that landowner had a right to conduct as a pre- existing use. One of the three judges agreed, and dissented from the court's rejection of the landowner's argument. For a case that takes a quite different view of the issue, see Township of Fairfield v. Likanchuk's, Inc., 644 A.2d 120 (N.J.Super.App.Div. 1994), discussed below (expansion to whole tract not permitted where landowner had not unequivocally devoted entire tract to mining purpose).

ZONING AND PLANNING; PRE-EXISTING NONCONFORMING USE; MINING: The expansion of a mining operation from a small area of a tract to the entire tract, where mining is a prior nonconforming use, constitutes an illegal expansion of the use. Township of Fairfield v. Likanchuk's, Inc., 644 A.2d 120 (N.J.Super.App.Div. 1994). The court below had applied the "diminishing asset" theory to permit expansion of the prior nonconforming use to cover the whole tract. On appeal, the court noted that, generally, expansion of nonconforming uses is not favored. So-called "diminishing asset" cases are slightly different, since the nature of the nonconforming use, such as excavation or soil removal, involves the utilization of a wasting asset and requires continual expansion over an area. Nonetheless, in such cases, the owner must show that the entire tract was dedicated by the owner to the mining activity despite the fact that the activity was limited when it was rendered a nonconforming use. The mere unexpressed intention or hope of the owner to use the entire tract at the time the restrictive zoning ordinance is adopted is not enough.

Intent must be objectively manifested by the initial and ongoing operation of the owner before the activity was rendered nonconforming. In the present case, the record discloses no such objective manifestation of intent to expand the mining operation to the entire tract. The owner's soil removal activity had been confined to the same area since prior to the adopting of the zoning ordinance. There was no systematic increase and expansion of operations over the years. In short, the owner's pattern of activity did not explicitly and manifestly demonstrate an intent to expand the mining to the entire tract. For a different slant on the same question, see Hansen Bros. v. Bd. of Supervisors of Nevada County, 35 Cal. Rptr. 358 (Cal. App. 1994), discussed above (Mining use can be expanded onto entire tract, but not intensified.)

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