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

ZONING; PRE-EXISTING NONCONFORMING USE: Rental properties rented to more than three unrelated adults in violation of the zoning ordinance were legal non-conforming uses where the properties had been continuously rented in that manner prior to the effective date of the zoning ordinance even though such rental activity had not been registered as required by a city housing ordinance.

Board of Zoning Appeals, Bloomington, Indiana v. Leisz, et al, 686 N.E.2d 935 (Ind. App. 1997).

The landlords had not complied with a city ordinance that required all rental units to be registered with the City or in compliance with a "grandfathering" provision which required the owners of the properties which became non-conforming uses under the zoning ordinances to be registered within three months to preserve their lawful, non-conforming use status. The Bloomington Ordinance Control Department notified the Defendant that the properties were in violation of the Zoning Ordinance. The Board of Zoning Appeals ("BZA") held that the use of the properties was not lawful because (i) they violated the housing ordinance at the time the Zoning Ordinance was enacted, (ii) the properties had not been registered under the "grandfathering" provision and (iii) Landlord had not established that the properties had been continuously occupied. The Trial Court overturned the BZA's holding.

On appeal; Held: Reversed. The Appeals Court held that a non-conforming use may be established when a use is illegal under a law or ordinance which does not relate to zoning, thus, non-compliance with a housing ordinance which requires all rental units to be registered with the City does not render the properties unlawful in the context of determining whether properties qualified as lawful, non-conforming uses under the zoning code. Likewise, the Appeals Court held that the "grandfathering" provision of the zoning ordinance which required non-conforming uses to be registered within a short period of time violated due process. A vested property interest in a non-conforming use may not be forfeited by the mere failure to register under a "grandfathering" provision.

Finally, the Appeals Court held that the Trial Court properly reversed the BZA's finding that the Landlord did not establish that the properties were continuously occupied by more than three unrelated adults, as the only evidence submitted showed the continued occupancy of the rental units in non-conformity with the Ordinance.

The court emphasized that the right to continuously operate a nonconforming use was one of constitutional proportions in Indiana (this is not a universally accepted premise). As such, it should not be lost by relatively insignficant violations of local ordinances, especially where it is likely that the violation was an unknowing one. The rental housing registration requirement, for example, is one of relatively recent vintage and actual notice of its enactment was sent only to a limited group of known landlords. Further, even where an ordinance ought to be known, it may not be signficantly related to the overall policies of the zoning laws so as to justify loss of the right to continue a nonconforming use. An example given in the court proceedings, and cited by the court, was the violation of a weed abatement ordinance.

The court did not conclude that violation of city ordinances outside of zoning ordinance was totally irrelevant to the question of whether a use qualified for nonconforming status. It cited cases from around the country on both sides of the question, and appeared to adopt the standard that there must be some relationship between the goals of the zoning laws and the regulation in question.

Comment 1: Courts really are between a "rock and a hard place" on this one. There is no truly useful line of demarcation between what violations do and what do not invalidate nonconforming use status, but clearly there has to be some line drawn. One of the confusing parts of the opinion is the emphasis upon "zoning laws" as compared to other city ordinances. A "zoning code" might continue a wide range of local regulations, even housing regulations such as those at issue here. If these housing rules had actually appeared in the city's Zoning Code, would that have changed the result? Clearly all of the other policy considerations applied by the court would be no different, and the mere location of a particular regulation ought not to be dispositive. But the editor can't say for sure how the court would rule.

Comment 2: It is not unusual for public agencies to place upon parties some kind of registration requirement in order for them to continue to have important rights that otherwise would be terminated by statute. This is done, for instance, under many marketable title acts. It is a feature of probate "nonclaim" statutes, and has been done to cut off common law water rights. The tracks are laid, but here the court seems loathe to run down them for the purposes involved in this case.

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