>Daily Development for Wednesday, July 13, 2008
>by: Patrick A. Randolph, Jr.
>Elmer F. Pierson Professor of Law
>UMKC School of Law
>Of Counsel: Husch Blackwell Sanders
>Kansas City, Missouri
>dirt@umkc.edu
>
>Here is a case on the basic concept of preexisting non-conforming uses, with a twist.  Not rocket science, but a little variety.

>
>ZONING AND LAND USE; VARIANCES:  A variance for an extension of a nonconforming use is not available for structures built on the parcel after the use became nonconforming. 

>
>Louchheim v Zoning Bd. of Appeals of Town of Southampton, 843 N.Y.S.2d 180 (A.D. 2 Dept. 2007). 
>
>Applicants submitted an application for a variance to allow expansion of two structures which benefitted from a pre-existing nonconforming use as a labor camp for migrant workers.  One building was built before the enactment of the applicable zoning ordinance in 1957 and the other was built in 1964.  Under the applicable code, the zoning board was permitted to grant a variance of an extension of no more than 50% of the floor area of a nonconforming use, as measured from the date the use first became nonconforming. 

>
>The Zoning Board of Appeals permitted the variance and the petitioners commenced an Article 78 proceeding to review the determination.  The court noted that in a proceeding to review a zoning board’s determination, the zoning board’s interpretation of its zoning ordinance is entitled to great deference. 

>
>When the question is purely legal interpretation of statutory terms, however, deference to the zoning board’s interpretation is not required.  The court found that the use first became nonconforming in 1957, before the second structure was added.  As such, the grant of the variance violated the 50% rule because it did not apply to the floor area existing when the use first became nonconforming in 1957.

>
>Comment: Note that the question was not whether the 1964 building was permitted as a nonconforming use.  That is also a nice question.  There are cases that permit reasonable expansion of existing nonconforming uses, such as in the case of mines.  But building a whole new building is a considerable change in the original use.

>But here the applicant attempted to bootstrap the nonconforming extension to to add additional square footage under a new ordinance.  It is lucky to have the extra building to begin with.  But perhaps that luck will run out if the opponents to this application get busy.

>
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