Daily Development for Thursday, February 6, 2003
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
ZONING AND LAND USE; PRE-EXISTING NONCONFORMING USE;
EXPANSION: The development of a new run,
with lights and chair lift, for purposes of snowboarding, is not an unlawful
expansion of a pre-existing nonconforming ski resort activity.
Fisher v. Burstein, 776 N.E.2d 872
(Ill.App. 2 Dist. 2002).
Owners of a ski resort operated under a nonconforming use
darting from 1959. In 1995, the local agency
enacted a zoning ordinance that would not have permitted this activity as a
matter of right in the district. The
ordinance, however, excepted "uses lawfully
established." prior to the enactment of the ordinance. Elsewhere, the ordinance stated that "an
existing use of land" that does not conform to the restrictions of the
ordinance may be continued, including any "building or structure that is
ancillary to the principal use . . . ."
In 1997, owners opened a new snowboarding facility,
"The Far Side," on the eastern slope of their mountain. The development included among other things,
the following: land clearance, creation of a ski trail and a park for
snowboarding, construction of a chairlift, and installation of snowmaking and
snow-grooming machines. Although the
owners had operated a ski resort on the mountain, the eastern slope of the
mountain was not developed prior to 1997. The defendants did not apply for or
obtain any zoning permits. In June of
1998, neighbors, filed a complaint seeking declaratory
and injunctive relief against the owners to prohibit the operation of The Far
Side without "proper authorization."
The plaintiffs alleged that the defendants
project was in violation of the county zoning ordinance. The county's position on the matter was that
its ordinances did not require any additional permits. The trial court granted defendants' motions
for summary judgment.
The Appellate Court of Illinois, Second
District (the "Court"), affirmed. The Court reviewed the
zoning ordinance of Jo Daviess County and disagreed with plaintiffs that the
development of The Far Side was a prohibited expansion of a nonpermitted
use. The Court interpreted the ordinance
as prohibiting the establishment or enlargement of a nonpermitted land use with
an exception for enlarging nonconforming uses existing on the effective date of
the ordinance. Therefore, nonconforming
uses existing on the effective date are excepted from
the general prohibition against establishing or enlarging a nonpermitted use.
The Court noted that a governmental body may restrict a
nonconforming use as may be necessary for public health, welfare, safety or
comfort. Such a regulation may cover the extension or expansion of
nonconforming uses. The Court held that
the ordinance at issue, however, contained no other provision that would
prohibit the extension or expansion of nonconforming uses. The Court found the absence of such a
prohibition carried further weight because another provision in the zoning
ordinance provided that lawful special uses, which are distinct from and not to
be considered nonconforming uses, are not to be "substantially
expanded" unless a supplemental special use permit is obtained. Furthermore, under the principal of inclusio
unius est exclusio alterius, the enumeration of an
exclusion in a statute or ordinance is construed as the exclusion of all
others. The Court concluded that
although the county could have imposed some similar restriction on the
expansion of nonconforming uses, it did not, and the Court was not willing to
impose such a restriction. Therefore,
the defendants could continue to develop the snowboarding facility without
additional zoning permits.
Comment 1: Since the ordinance was not enacted until 1995,
at a time when snowboarding was already in vogue, we do not have the
interesting question of whether a resort designed only for skiers can be
expanded for snowboarding.
Comment 2: Other decisions go both ways on this issue. See, e.g. Hansen Bros. v. Bd. Of Supervisors
of Nevada County, 35 Cal. Rptr. 22d 358 (Cal. App. 1994) (mining use in one
area of a parcel may be extended to balance of parcel as a pre-existing use,
although owner cannot intensify rate of extraction.) with Township of Fairfield
v. Likanchuk's, Inc., 644 A. 2d 120 (N.J. App. 1994 )
(expansion of a mning operation from a small area of a tract to the entire
tract, where mining is a prior nonconforming use, constitutes an illegal
expansion). Ialso see: Waukesha County v. Pewaukee Marina, Inc., 522 N.W. 2d
536 (Wis App. 1994 ) (although a marina activity that
is a nonconforming use may add dockage spaces to accommodate increased traffic,
it may not add additional new activities, such as retail sales.)
Comment 3: Those decisions permitting expansion generally
involve expansion into obvious "expansion property." Here the developers apparently already owned
the eastern slope at the time of the 1995 ordinance, but another interesting
issue would arise if they did not, and acquired it thereafter. Is this an "expansion," of the use?
Comment 4: Also see:
Motel 6 Operating Ltd. Partnership v. Flagstaff, 991 P.2d 272 (Ariz.
App. 1999), the DIRT DD for 11/3/99 (altering existing nonconforming sign to
reflect logos and names of new tenants is not an unlawful change of
pre-existing use.) Ragucci v.
Metropolitan Development Commission of Marion County, 685 N.E. 2d 104 (Ind.App.
1997), the DIRT DD for 2/27/98 (increase in density of occupancy of existing
multifamily structure is not an unlawful expansion of nonconforming use);