MAINTENANCE OF LEGAL NONCONFORMING USES UNDER S.A.M.C. SECTION 41-686

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OPINION N0. 75-12 PAGE TWO legal because it began prior to the enactment of those restrictions. It thus constitutes a 10nonconforming use" as defined in SAMC Section 41-126 and as such is subject to the regulations contained in Article VI of the Zoning Chapter (Sections 41-679 through 41-687). The landowner ,now proposes to use another portion of the same lot for professional offices. Such use is permitted in the CD use district (i.e., it is a "conforming" use). But if sec- tion 41-686 applies, the landowner would be precluded from initiating such an additional use on the lot unless he either terminates the nonconforming use or obtains a vari- ance allowing its continuation. By its terms Section 41-686 only applies if the additional use (professional offices) is a "use of a more restricted classification" than the nonconforming use (repair garage). But when is one use to be considered a "use of a more restricted classification" than another use? Noth- ing in the zoning chapter expressly answers this question. Research into the case law has not disclosed any court-esta- blished interpretation of such a phrase. It is our conclu- sion that the phrase is too ambiguous and vague to permit effective enforcement of Section 41-686. One possible interpretation, as applied to the present factual situation, is that professional office use of property is a less restricted use classificat-ion than repair garage use of property. Professional office use is permitted in all of the professional and commercial zones. Repair garages, on the other hand, are excluded from all of them except the C2, C3 and C4 zones. Thus since the repair garage use is more widely excluded., it can be viewed as the more restricted use. By the same reason- ing, but in more general terms, commercial uses in general are more restricted uses than professional uses. On the other hand, it may be argued that profes- sional use districts are in general more restricted than are commercial use districts because more types of uses are excluded from professional zones. Thus use of property for professional offices can be said to be more restricted than use for a repair garage in the sense o~being first permitted in the more restricted (i.e. more exclusive) type of zone. This interpretation might be more persuasive if the city had a "pyramidal" zoning structure with a succes- sion of zones each allowing a wider variety of uses than the zone immediately preceding it on the list. But, what- ever may have been the structure of the city's zoning ordi- ~-- nances when the language of Section 41-686 was adopted, -46-