by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

ZONING AND PLANNING; NONCONFORMING USES; ABANDONMENT: A nonconforming use may be lost through abandonment where landowner has not used the property for the identified use for a year, even where the landowner was required to discontinue the use by public order, if the order compelling the nonuse is attributable, at least in part, to misconduct by landowner.

City of Glendale v. Aldabbagh, 939 P.2d 418 (Ariz. 1997).

Aldabbagh owned an adult entertainment business in the City of Glendale. The zoning ordinance would have prohibited the use if it had not been a preexisting nonconforming use.

In a public nuisance action alleging prostititution activity at the club, the City obtained a temporary restraining order and preliminary injunction closing the club. By the time the case reached trial, more than a year had passed. The only relief sought by the city had been a one year closure (the only relief possible under the City's ordinance), and consequently the parties dismissed the action with prejudice.

After the period of closure, Aldabbagh leased the property to Benz who applied for a license to operate an adult entertainment business. City's ordinance provided that a nonconforming use was lost if it "abandoned or ceased to be carried on for a period one year" . Aldabbagh and Benz argued that the City had to prove an intent to abandon. On the other hand, the City argued that any nonuse for a period of one year constitutes cessation, if not abandonment, and that any cessation, regardless of the reason, can lead to discontinuation of the status of legal nonconforming use. The trial court and the court of appeals found for Aldabbagh.

On appeal, held: Reversed and remanded:

The court took a middle position. It admitted that the concept of "abandonment" requires a finding of a subjective intent to give up the nonconforming use. It noted that some courts have concluded that that "cessation" and "abandonment" are synonymous and that a party opposed to the use in question must prove an intent to abandon. It noted further that other courts have said that cessation creates a rebuttable presumption of intent to abandon. The court here felt that the intent of the ordinance was to use the two concepts in the disjunction, and that in providing that a use could be terminated the City was providing for termination of nonconforming use rights due to nonuse to the extent that it legally could do so. To inject an intent to abandon would frustrate the City's purpose in adopting the ordinance.

Nevertheless, the court noted that it would violate the State statutes and Constitution to conclude that there could be loss of valuable zoning rights due to cessation of use for reasons totally unrelated to the landowner's conduct. But it is acceptable to write an ordinance, as the court construed the Glendale ordinance, that terminates preexisting nonconforming uses if they have ceased for a period of time for reasons related to the landowner's conduct, even where the landowner had no intent to abandon:

"The termination of a nonconforming use does not require a decision by the property owner to discontinue the use. A nonconforming use may be lost through negligence or inadvertance. A use may also be lost if a person engages in civil or criminal misconduct that the property owner knows or should know could lead to involuntary closure and indeed does lead to closure."

The cessation was brought about by the City's public nuisance action. That action was dismissed by agreement of both sides, and consequently the court here could not conclude that the allegations regarding the landowner's conduct had been fully litigated and established, regardless of the procedural posture of that case. The court remanded for a trial of whether "Aldabbaugh engaged in wrongdoing that led to closure of the club." This did not demonstrate an intent to abandon provision on the part of the landowner. Apparently, if the City can establish that such conduct was the cause of the closure, then it can refuse to permit the use to continue.

Reporter's Comment: The court reconciled an interesting question in zoning by avoiding the troubling intent to abandon approach while stopping short of the strict cessation approach and adopting instead a combination of cessation and some conduct on the owner's part that justified termination of a nonconforming use.

Editor's Comment 1: Although the editor has no problem with the right of a city to close down a house of prostitution, the editor has a considerable problem with the court's approach here. The impact of its ruling is to permit a City to expand a one year termination to a permanent termination if a nonconforming use. If the City had no right to terminate the use permanently in the first instance (as the Court suggests is the case), then it should not have had the right to do so indirectly.

Editor's Comment 2: The court also notes that to require express intent to abandon in every instance would simply reward the landowner who was the best liar. Where extrinsic evidence suggests that there indeed has been an abandonment, the actions should speak for themselves. The editor has no problem with this analysis, but suggests that it stops far short of concluding that there has been an "abandonment" when the cessation has occurred through preliminary court order (or even a permanent order).

Editor's Comment 3: In any event, the "trial" that the court requires here is somewhat incongruous. Just what is supposed to be established at this "trial?" The reason for the "shut down" for one year is obvious - the allegations made by the City were serious enough that, even unproven, the judge, balancing the equities, concluded that the landowner should be shut down until the facts were established. Does the City simply have to show that the trial court was justified in this judgment, based upon these allegations, or does it have to show that the landowner really did conduct a nuisance on the property? One would assume that the latter is the case, but showing that now has little to do with the reason for the issuance of the order that brought about the cessation. There is a logical leap here that only the nimblest of Courts could do with grace. The Arizona court's logic falls flat on its face.

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