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Nonconforming Uses by
2 THE LAW OF NONCONFORMING USES 2.1 Identifying and Handling Nonconforming Uses 2.1.1 The Meaning of "Grandfathered" or Pre-existing Uses If property is in lawful use prior to the enactment of a restrictive zoning ordinance, and the new zoning ordinance prohibits the use (thereby rendering the use "nonconforming") the property is generally held to have a "grandfathered" or "vested" right to the nonconforming use. As a general rule, three elements must be in place for a property to have a vested right in a nonconforming use:
This third element is actually the lynchpin of the entire doctrine of nonconforming uses, which is based upon the reluctance of the courts to give retroactive effect to zoning ordinances that would destroy substantial existing property rights. The Utah Supreme Court first articulated this doctrine in the well-known case of Gibbons and Reed Company v. North Salt Lake City, 431 P.2d 559 (Utah 1967). There the court ruled that "a zoning ordinance which required the discontinuance forthwith of a nonconforming use would be a deprivation of property without due process of law." Aside from constitutional prohibitions, a number of states, including Utah, have enacted statutes specifically protecting pre-existing nonconforming uses. (See Sections 10-9-408 and 17-27-407 of the Utah Code.) By definition, under Utah law, a nonconforming use is . . . . a use of land that:
Utah Code Annotated §§ 10-9-103(1)(l) (municipalities) and 17-27-103(1)(o) (counties). The most recent Utah case to examine this definition is Hugoe v. Woods Cross City, 988 P.2d 456 (Utah Ct. App. 1999). Hugoe Trucking, Inc., an interstate transporter of sand and gravel, purchased a parcel in Woods Cross for the purpose of parking, staging, and storing its large trucks and trailers. In 1992, Woods Cross adopted a new zoning ordinance which placed the Hugoe Trucking parcel in an industrial zone under which heavy trucks such as Hugoe's were required to be parked in a garage. Construction of such a garage proved to be prohibitive, however, and Hugoe Trucking simply continued to use the property as before. After making several demands to cease and desist, Woods Cross served a criminal information on Hugoe Trucking, which responded by filing an action for declaratory relief and an injunction. The trial court held Hugoe's use a valid nonconforming use which must be permitted to continue. Woods Cross appealed, arguing that Hugoe's use of the land had never been legally established since its use was not one of the 49 uses permitted under the previous zoning; that, even if it were, Hugoe's business offices were located elsewhere, the parcel in question being used only for storage and parking; and that Hugoe had never filed a site plan. The Court of Appeals affirmed, noting that "zoning ordinances are in derogation of a property owner's common-law right to unrestricted use of his or her property . . . [and] should be strictly construed . . . in favor of the property owner." Hugoe's business was thus deemed a "transfer company," one of the 49 permitted uses under the earlier zoning; parking and storage were held to be an "integral part" of their operations; and failure to file a site plan was insufficient "to defeat or invalidate an otherwise legal nonconforming use." Once a nonconforming use is established, the right to continue it runs with the land; it is not confined to the particular person or entity that owned or operated the property or structure at the time the nonconforming use vested. As stated by the Utah Supreme Court in Gibbons and Reed, "use, not ownership, of land is the concern of zoning authorities. Lawful existing nonconforming uses are not eradicated by a mere change in ownership." 2.1.2 Expansion or Enlargement of Nonconforming Uses 2.1.2.1 The General Rule The well-settled, general rule is that a non-conforming use cannot be expanded or enlarged beyond that which existed at the time the right vested. See, e.g., Harper v. Summit County, 2001 UT 10, ¶ 46, 414 Utah Adv. Rep. 21 (citing Utah County v. Baxter, 635 P.2d 61 (Utah 1981)) (Eyre, J., concurring & dissenting: noting that where "use of . . . property is a nonconforming use of land. . . . [it] may not be extended or expanded in any fashion.) The rationale behind this rule is that nonconforming uses should be discouraged and terminated at the earliest possible time through obsolescence or deterioration. Sometimes, however, the restrictive zoning can actually make the property more valuable since the use may have become one of a kind within the restricted zone. Practically speaking, this means it may take a very long time to terminate the right to the nonconforming use. If no upgrades are allowed, then a nonconforming use or structure may become a blight and degrade the neighborhood. When this occurs, the principle of nonconforming uses achieves a result opposite to that intended: instead of improving an area by eliminating existing nonconforming uses, longstanding nonconforming uses--and sometimes badly weathered or deteriorating ones--may linger perforce. Mindful of this, some local governments have enacted ordinances which allow a certain amount of flexibility in changing from one nonconforming use to another. So, for example, Salt Lake City's municipal code provides that "[u]pon application to the Zoning Administrator . . . a nonconforming use may be changed to another nonconforming use of the same or similar land use . . . ." Salt Lake City Municipal Code § 21A.38.080(D). 2.1.3 Expanding the Nonconforming Use The Utah legislature has given local municipalities great flexibility in the drafting of local ordinances dealing with nonconforming uses. The law allows the local legislative body to provide by ordinance for the "establishment, restoration, reconstruction, extension, alteration, expansion, or substitution of nonconforming uses" (Utah Code Annotated §§ 10-9-408(2) and 17-28-407(2)(a)), and the sole provision regarding extension or expansion of nonconforming uses declares only that "a non-conforming use may be extended through the same building provided no structural alteration of the building is proposed or made for the purpose of the extension" (§§ 10-9-408 and 17-27-407 of the Utah Code).(1) Despite the flexibility offered to Utah's local governments by the state legislature, however, Utah's local ordinances, for the most part, simply incorporate the general rule prohibiting any enlargement of nonconforming uses. Typical is § 21A.38.080(A) of the Salt Lake City Municipal Code, which declares that [a] nonconforming use may not be enlarged, expanded or extended to occupy all or a part of another structure or site, that it did not occupy on the effective date hereof . . . ." See also Draper City Municipal Code § 9-3-120(b)(1)("Except as provided below, a building or structure occupied by a non-conforming use . . . shall not be added to or enlarged in any manner or moved to another location on the lot except as authorized by the Board of Adjustment. . . ."); Park City Municipal Corporation Land Management Code § 15-9-5(A) ("[a] Non-Conforming Use may not be enlarged, expanded, or extended to occupy all or a part of another Structure or site that it did not occupy on the date on which the use became non-conforming."). 2.1.3.1 Expansion of Intensity Here it should be noted that while Utah law restricts the area of a nonconforming use, it does not restrict its intensity. Case law from around the country makes it abundantly clear that restrictions on nonconforming uses are limited to the nature of the activity rather than its intensity or frequency: "a mere increase in volume or intensity of use does not constitute a change in use.(2) However, a use of a different kind accompanied by a drastic enlargement may create a changed use." Blake v. City of Phoenix, 754 P.2d 1368, 1371 (Ariz. Ct. App. 1988) (citing 1 R. Anderson, American Law of Zoning, § 6.38 (3rd ed. 1986)).(3) A gas station, in other words (to take a simple example), can be "grandfathered" as a gas station (i.e. the nature of the activity) within a residential zone, but it cannot be limited to a particular number of customers allowed to enter during a given day, or to the number of gallons of gasoline that can be sold during a given period. Obviously aware of this, some local codes and ordinances have taken steps to recognize, and so to regulate, increased intensity. Bountiful City's Zoning Ordinance, for example, provides that "where the original nature and purpose of a business remain the same and a nonconforming use is not changed in character, a mere increase in the volume of business by natural expansion and growth of trade cannot be considered an unlawful extension of the nonconforming use." Zoning Ordinance of Bountiful City § 14-2-406. The ordinance goes on to specify that natural expansion "may occur by application for and the granting of a Conditional Use Permit . . . ." 2.1.3.2 The Doctrine of "Diminishing Asset" The doctrine of diminishing asset recognizes that some nonconforming uses, such as mining, must be expanded in order for the nonconforming use to continue at all. The most recent explanation of the doctrine comes from the Washington State Supreme Court case City of University Place v. McGuire, 30 P.3d 453 (Wash. 2001) (oddly perhaps, diminishing asset has been discussed only once, in 1967, in Utah's jurisprudence--see below). The University Place case asked the Washington Supreme Court whether Washington State recognizes the diminishing asset doctrine. The Court, in adopting the doctrine, took advantage of the opportunity to give a brief, though excellent, explanation of the doctrine's purpose, application, and current scope (which I here reproduce very nearly entire):
30 P.3d at ___, 2001 Wash. LEXIS 556 at *12-*16. It should be noted that the Washington Supreme Court carefully adopted the diminishing asset doctrine "to determine the lawful scope of the nonconforming use in mining operations"; and it is true that the doctrine appears thus far to apply exclusively to mineral extractions--specifically mining and quarrying. Nevertheless, other sorts of extractive undertakings, such as harvesting timber, for instance, might just as easily fall within the doctrine's purview as well. Turning back to Utah law, into which the diminishing asset doctrine was incorporated over 30 years before the issue was addressed in Washington, we note that the doctrine's formal existence in Utah derives from the case of Gibbons & Reed, 431 P.2d 559 (Utah 1967), wherein the Utah Supreme Court declared that
431 P.2d at 564. Plainly, in order for the nonconforming use to be expanded under the diminishing asset doctrine, there must be an intent eventually to mine the undisturbed portion of the property at the time that the extractive use thereof becomes nonconforming. The nature of such an intent is not necessarily actual extraction. In one recent case, the Iowa Supreme Court stated that although a sand and gravel operation had been closed for a number of years, the fact that permits had been maintained demonstrated an intent to continue the operation when demand for aggregate increased. The court held that the operator had not abandoned the non-conforming use, and could even expand the non-conforming use onto the rest of the property. Ernst v. Johnson County, 522 N.W.2d 599 (Iowa 1994); See also, Syracuse Aggregate Corp. V. Weise, 414 N.E. 2d 651 (N.Y. 1980). 2.1.4 Police Power Regulation of Nonconforming Uses When a nonconforming use is permitted to continue, many communities have successfully used their broad police powers to drastically curb or even eradicate the nonconforming use. The police powers are one of the least limitable powers of governmental use, and they, by their very nature, limit property rights. Both the Utah Supreme Court and the United States Supreme Court have given local governments broad protection from claims of governmental takings. Lucas v. South Carolina Costal Council, 120 L.Ed. 798 (1992); Colman v. Utah State Land Board, 795 P.2d 622 (Utah 1990); Rocky Mountain Thrift Stores v. Salt Lake City, 784 P.2d 459 (Utah 1989). Subject only to constitutional standards of reasonableness, police power regulation of a certain type of land use will likely be upheld, whether the land use involved is a nonconforming use or a conforming use. This is true even though the ordinance imposing the regulation is enacted long after the nonconforming use is established. Licensing provisions requiring special permits upon which conditions relating to details of operation of the facility might be imposed. Where licensing or special permit requirements exist, they are generally held valid as applied to nonconforming uses subject to the constitutional standard of reasonableness. For example, in Schoop v. New Orleans Alcoholic Beverage Control Brd. 519 So.2d 831 (La.App. 1988), it was held that the owner must comply with licensing requirements despite the fact that all four units in the building enjoyed commercial nonconforming use status. Similarly, it was held in Norton Shores v. Carr, 265 N.W.2d 802 (Mich. 1978) that a nonconforming junkyard was required to secure a license under a junkyard licensing act. In order to secure the license, the junkyard had to comply with the conditions of the license. 2.1.5 Abandonment and Amortization A vested right in a nonconforming use may be lost when the owner manifests, either by deliberate act or by a failure to act, an intent to abandon the nonconforming use. Abandonment has not been defined in the zoning enabling law. Because intent to abandon is often difficult to prove, many communities have enacted ordinances setting forth objective standards creating a presumption of abandonment. Usually such ordinances set forth a specific period of time after which the property cannot be used except in conformity with the zoning ordinance. The typical ordinance provides six months to one year. An ordinance of this type was upheld in Morrison v. Horne, 363 P.2d 1113 (Utah 1961) Utah law also provides that a local government may
Utah Code Annotated §§ 10-9-408(2)(b) and 17-27-407(2)(b). This provision permits the termination of nonconforming uses over a reasonable period of time, while protecting (or at least compensating for the loss of) the owner's interest in the property. Current application of the statutory amortization provisions covers the entire spectrum: many local governments do not even include amortization as an option in their codes; others make use of the device only in a few cases (see, e.g., Layton City Municipal Code § 19.15.050 (providing for termination of nonconforming signs and open storage by amortization)); while some adopt amortization as a device to terminate all nonconforming uses (see, e.g., West Valley City Municipal Code § 7-18-106(8) (empowering the city Board of Adjustment, "under authorization of State statute," to grant up to five years of the modification or removal of nonconforming uses, or to set a shorter time by providing the statutorily permitted formula)).(5) 2.1.5.1 Nonconforming Rights in Billboards The appraised value of an off-site billboard can be surprisingly high. Because billboards have come under increasing attack by those that would rather not have billboards at all, certain specific measures have been enacted by the state legislature to protect the property rights of billboard owners. As noted above, unlike other nonconforming interests, a nonconforming interest in a billboard cannot be terminated by amortizing the value of a billboard over time. The right to a nonconforming use in a billboard can only be terminated by acquiring the billboard through gift, purchase, agreement, exchange, or eminent domain. Utah Code Annotated §§ 10-9-408(2)(c) and 17-27-407(2)(c). Because billboards are so exposed that they are subject to weather damage and vandalism, Sections 10-9-408 and 17-27-407 provide that if the governing body "prevents a billboard company from maintaining, repairing or restoring a billboard structure damaged by casualty, act of God, or vandalism, the [governing body's] actions constitute initiation of acquisition by eminent domain. . . ." 2.1.5.2 When Does the Right Vest? What happens if a builder has submitted a building application, but before the application is approved, the city enacts a new zoning ordinance making the proposed use nonconforming? This issue was first addressed in Western Land Equities v. City of Logan, 617 P.2d 388 (Utah 1980), where the Supreme Court held that "an applicant is entitled to a building permit or subdivision approval if his proposed development meets the zoning requirements in existence at the time of his application, and if he proceeds with reasonable diligence, absent a compelling, countervailing public interest," 617 P.2d at 396. The Western Land Equities case was further explained in Scherbel v. Salt Lake City, 758 P.2d 897 (Utah 1988). In Scherbel, the Court ruled that the zoning change was "pending" at the time the application was made. Because the zoning change was already pending when the application was made, there was no vesting. This holding has left substantial question as to when a zoning change is pending. To avoid controversy on the subject, many municipalities now enact building moratoria pending the zoning change. The moratorium gives clear evidence that a change is under way. The moratorium also prevents a flood of applications in response to publicity concerning a proposed zoning change. 2.2 Distinguishing Nonconforming Structures and Lots 2.2.1 Nonconforming Structures: Similarities to and Differences from Nonconforming Uses Nonconforming uses and structures are often not distinguished in state laws or local ordinances. However, Utah and some other states do at least define nonconforming use and structure separately. The definitions found in Utah Code Ann. § 10-9-103(k) and (l) (municipalities), and § 17-27-103(n) and (o) (counties) states:
The approach taken by Utah enabling law in its definition is to qualify the physical deviations of a structure from the zone standards. Beyond the definitions, however, there appears at present not to be any real difference in legal treatment of nonconforming uses and structures. 2.2.2 Nonconforming Lots 2.2.2.1 Bringing the Property into Conformity Acquisition of additional property which will make a nonconforming lot conform is generally acceptable so long as it does not violate other law, such as the subdivision law. If you have a nonconforming lot (or a structure which requires a larger lot under the relevant zoning requirements), you should explore acquisition of neighboring property as the simplest means of bringing the nonconforming lot (or structure) into conformance. 2.2.2.2 Variance Appeals and Other Administrative Avenues Nonconforming lots are not defined in the Utah code, and are typically addressed through the variance process before local Boards of Adjustment. The Board of Adjustment A Board of Adjustment is comprised of three to five individuals in counties and five individuals in municipalities. It is a mandatory body: each municipality must have one. Members, including alternates (up to two of whom may sit at any one time), are appointed by the chief executive officer with the advice and consent of legislative body. The Board is required to elect a chair, adopt rules, and follow the open and public meetings law. Minutes must be kept of each Board proceeding (showing each members vote, if any), as well as records of each official action of the Board. All of the Board's records are public. Utah Code Annotated §§ 10-9-702 & -703 (municipalities), and 17-27-702 & -703 (counties).
The Board may also(but need not) be delegated authority by local ordinance to make determinations regarding the existence, expansion, or modification of nonconforming uses. Additionally, in counties, the Board may be delegated authority to interpret zoning maps, pass on disputed zoning district lines and similar questions. Utah Code Annotated §§ 10-9-703 (municipalities) & 17-27-703 (counties). Variances The zoning enabling statute provides a fairly structured approach to variances. Variances may only be granted if they meet specific statutory criteria:
Utah Code Annotated §§ 10-9-707(2)(a) (municipalities) & 17-27-707(2)(a) (counties). There are also specific limitations on the finding of "an unreasonable hardship":
Utah Code Annotated §§ 10-9-707(2)(b)(i) (municipalities) & 17-27-707(2)(b)(i) (counties). In addition, a Board of Adjustment may not find an unreasonable hardship if the hardship is self-imposed or economic. Utah Code Annotated §§ 10-9-707(2)(b)(ii) (municipalities) & 17-27-707(2)(b)(ii) (counties) (emphasis added). In determining whether or not there are special circumstances attached to the property, a Board of Adjustment may find that special circumstances exist only if the adduced circumstances:
Utah Code Annotated §§ 10-9-707(2)(c) (municipalities) & 17-27-707(2)(c) (counties). The burden of establishing the factors justifying a variance rests with the applicant. Utah Code Annotated §§ 10-9-707(3) (municipalities) & 17-27-707(3) (counties). The Scope of Board of Adjustment Powers The scope of Board of Adjustment powers has been the subject of several reported Utah decisions. In Walton v. Tracy Loan & Trust Co., 92 P.2d 7824 (Utah 1939)), the Utah Supreme Court held that the Board of Adjustment could not grant variances from the use restrictions in the zoning ordinance. In Xanthos v. Board of Adjustment of Salt Lake City, 685 P.2d 10-32 (Utah 1984), the Supreme Court clarified in detail the conditions that must exist for the granting of a variance, specifically including requirements that hardship be shown to be more than mere economic loss and that special circumstances exist with respect to the property in question, which circumstances relate to the required showing of hardship. In Chambers v. Smithfield City, 714 P.2d 790 (Utah 1986), a variance had been granted to build a house on a lot less than the minimum size in the zone. The action granting the variance was challenged in court. The Utah Supreme Court held that the granting of the variance violated state law. The court found the spirit of the zoning law violated. The court also found no special conditions attached to the property. Also, the court found that no hardship was demonstrated and noted that economic loss alone is not a hardship. Finally, the court found that the owner had brought the hardship on himself. He had bought the lot knowing that it did not comply with the zoning requirement for lot size. In sum, any variance granted must comply with the limitations on the granting of variance in state law. Most recently, the Utah Court of Appeals in Wells v. Salt Lake City Bd. Of Adjust., 936 P.2d 1102 (Utah App. 1997), held that approval of a variance without making the statutorily required findings was illegal. If there is an appeal of a Board of Adjustment ruling on a variance, the appeal must be filed within 30 days. The review is based only on the record made before the Board of Adjustment. If the Board of Adjustment's decision is supported by substantial evidence, it must be affirmed.(6) 1. Many of Utah's local codes include the statutory language or its intent: "A nonconforming use may be extended to include the entire floor area of the existing building in which it is conducted at the time the use became nonconforming." Draper City Municipal Code § 9-3-120(h). Others add certain restrictions: "A Non-Conforming Use may be extended through the same Building or Structure provided no structural alteration of the Building or Structure is proposed or made for the purpose of the extension and the parking demand is not increased." Park City Municipal Corporation Land Development Code § 15-9-5(A) (emphasis added). Still others appear to contradict the statutory language: "The nonconforming use of any conforming building . . . may be continued provided such nonconforming use shall not be expanded or extended into any other portion of the conforming building . . . ." Provo City Municipal Code § 14.36.040(1) (emphasis added). 2. See also, e.g., City of Jewell Junction v. Cunningham, 439 N.W.2d 183, (Iowa 1989) ("An increase in business alone does not constitute an illegal extension of a nonconforming use. . . .[similarily the] intensification of a nonconforming use is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used." (Citing McQuillin, § 25.207, at 116)); Union Quarries, Inc. v. The Board of County Commissioners of Johnson County, 478 P.2d 181 (Kan. 1970) ("Generally speaking, the rule forbidding the enlargement or extension of a nonconforming use does not prevent an increase in the amount of use within the same area, so that a nonconforming use may be not only continued but also increased in volume and intensity. A nonconforming use is not limited to the precise magnitude thereof which existed at the date of the ordinance, but may be increased by natural expansion, and a nonconforming use is not unlawfully enlarged or extended although the number of employees has almost doubled. The natural growth of a business or an increase in the amount of business done is not a change from the nonconforming use permitted by the zoning ordinances.")(quoting 101 C.J.S. Zoning s 193, pp 955-956); City of Crowley v Barbara Ann Prejean, 173 So.2d 832, 835 (LA. App. 1965) (" The general rule is that '* * * the rule forbidding the enlargement of extension of a nonconforming use does not prevent an increase in the amount of use within the same area, so that a nonconforming use may be not only continued but also increased in volume and intensity. A nonconforming use is not limited to the precise magnitude thereof which existed at the date of the ordinance * * *The prohibition of a zoning ordinance is directed to new uses; it imposes no restraint upon broadening the scope of an existing use." (Citations omitted)); Town of Orono v Perry E. LaPointe, 698 A.2d 1059, 1063 (Me. 1997)("A mere increase in the volume of vehicles stored on defendant's lot does not constitute an illegal expansion or change of use.); Boivin v Town of Sanford, 588 A.2d 1197 ("In general, a mere increase in the intensity or volume of business is not an unlawful expansion of a preexisting, nonconforming use, which is protected from an uncompensated public taking. In contrast a new use or a use of a different character can be prescribed by a zoning ordinance."); Building Inspector of Seekong v. George D. Amaral, 401 N.E.2d 158 (Ma. 1980)("The master's findings established that the use made of the specified portion of the lot 134 in 1958 was not different in nature, purpose, quality, character, or effect on the neighborhood from the use made of the same portion in 1942, the year Seekonk's first zoning by-law was adopted. As in Powers v. Building Inspector of Barnstable, 363 Mass. 648, 659-660, 296 N.E.2d 491, 499 (1973), there was a 'difference in degree of such use, but not in the quality or character thereof.' It therefore became a protected nonconforming use under the 1958 by-law which superseded the earlier by-law and provided '. . . any lawful use of land . . . which is not an authorized use in the district in which it is located by virtue of the adoption or subsequent amendment of this by-law is a nonconforming use and may be continued . . . .' It follows that the judgment was erroneous in limiting the lawful capacity of the defendants' junkyard to 'four or five cars,' the highest number in process of disassembly in 1942."); Town of Gardiner v Blue Sky Entertainment Corporation, 213 A.D.2d 790, 791 (N.Y. 2d 1995)("As this court has held, '[a]n increase in the volume of use, without a significant change in the kind of use, is not considered a proscribed extension of a nonconforming use' (Gilmore v. Beyer, 46 A.D.2d 208, 210, 361 N.Y.S.2d 739)."); GULF, C. & S. F. RY. CO. v. White, 281 S.W.2d 441, 449 (Tex. App. 1955)("'The general rule is that an increase in volume of business alone is not an expansion of a nonconforming use * * *.' Moreover, the view has been taken that it is not essential that a nonconforming use exercised at the time a zoning ordinance is enacted should have embraced an entire tract in order to entitle an owner to subsequently employ it all for the use. To so hold would be to deprive owners of that use of their property as effectively as if the ordinance had been completely prohibitive of all use. * * *.'" (quoting McQuillin, Municipal Corporations, 3rd Vol. 8, §§ 25.207, 25.208)). 3. Connecticut has developed a three-prong test to determine whether a current activity is within the scope of the pre-existing nonconforming use activity: In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any difference in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property. Hall v. Brazzale, 624 A.2d 916, 919 (Conn. App. 1993) (citations omitted). 4. The Court's footnote at this point indicates the apparent magnitude of the scope of the diminishing asset doctrine: See also Stephan & Sons, Inc. v. Municipality of Anchorage, 685 P.2d 98 (Alaska 1984); Town of Wolfeboro v. Smith, 131 N.H. 449, 556 A.2d 755 (1989) (nonconforming use right extends to all areas manifested an intention to excavate); Moore v. Bridgewater Township. 69 N.J. Super. 1, 173 A.2d 430, 437 (Ct. App. Div. 1961) (lawful nonconforming use of diminishing asset extends to the boundaries of original tract); Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 414 N.E.2d 651, 654-55 (1980) (holding restricting nonconforming use to the original quarry site the equivalent of denying the use of the property and thus improper); R.K. Kibblehouse Quarries v. Marlborough Township Zoning Hearing Bd., 157 Pa. Cmmw. Ct. 630, 630 A.2d 937, 943 (1993) (finding constitutional right to continue nonconforming use under due process clause but limiting expansion to "reasonable restrictions on the extension of a nonconforming use"); Gibbons & Reed Co. v. North Salt Lake City, 19 Utah 2d 329, 431 P.2d 559 (1967); Smart v. Dane County Bd. of Adjustments, 177 Wis. 2d 445, 501 N.W.2d 782 (1993); cf. Fredal v. Forster, 9 Mich. App. 215, 156 N.W.2d 606 (1967) (must balance right to use property as planned against danger to zoning schemes; land being used can be expanded, but land may not be reserved in anticipation of actual use); but see Town of Billerica v. Quinn, 320 Mass. 687, 71 N.E.2d 235 (1947) (limiting lawful nonconforming loam removal to original site, but expressly not ruling on whether a mine could be expanded beyond original site); Wende v. Bd. of Adjustment, 27 S.W.3d 162 (Tex. Ct. App. 2000) (recognizing other states 'nearly unanimous' in adopting diminishing asset doctrine; expressly reserving judgment as to whether doctrine applies in Texas), review granted April 26, 2001. 30 P.3d at fn. 4. 5. It is not entirely clear from the statutory language whether a local government must provide for the termination of all nonconforming uses as part of a general formula or provide a formula for each type of use, or provide a formula for each particular use to come before it or its board of adjustment. Grammatically, the statute allows for the "termination of all nonconforming uses," not "each nonconforming use"--and this may require that a general formula be enacted "establishing a reasonable time" for the termination of all nonconforming uses rather than particular types or cases. The statutory language also appears to require that the amortization formula itself be established by the "legislative body" of the municipality. Thus, although a board of adjustment, or some other body, might be permitted or required by local ordinance to apply the formula, it seems clear that such a formula would have to be established by the community's legislative body. 6. The substantial evidence requirement was recently reaffirmed in Wadsworth Construction, Inc. v. West Jordan City, 2000 UT App 49, 999 P.2d 1240. There, the Court of Appeals reversed summary judgment in favor of West Jordan, holding that the city's denial of a conditional use permit was arbitrary, capricious, and without sufficient factual basis. West Jordan argued that such reasons as it had set forth for the denial sufficed in light of the high level of deference owed to a city council's decision on review. (West Jordan's ordinances place the forum for a land use appeal with its City Council rather than its Board of Adjustment.) The Court of Appeals pointed out, however, that the deferential presumption of validity only attaches to a municipality's legislative actions; review of its administrative and adjudicative decisions--such as denial of an application for a conditional use permit--focuses on whether or not substantial evidence supports the decision. In concluding that West Jordan's denial of Wadsworth's application was not supported by substantial evidence, the Court of Appeals noted that "the only evidence in the record supporting [the City's finding that outdoor storage would be detrimental to the area] are the concerns expressed by neighboring landowners." Public comment alone, the Court explained, cannot serve as a basis for denial of a conditional use permit application; however, the record indicated no investigation as to the validity of the concerns voiced. The City also failed to make a finding that Wadsworth's proposed conditional use would constitute a nuisance, but determined that it "may be considered" as such, based, again, on neighbors' concerns about "rodent traffic" and dust. Moreover, the area around the parcel whereon Wadsworth proposed its conditional use contained several parcels put to similar uses. The Court therefore determined that West Jordan's denial of Wadsworth's application for a conditional use permit was arbitrary and capricious, and reversed the trial court's grant of summary judgment in the City's favor. |
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