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MAINTENANCE OF LEGAL NONCONFORMING USES UNDER S.A.M.C. SECTION 41-686
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MAINTENANCE OF LEGAL NONCONFORMING USES UNDER S.A.M.C. SECTION 41-686
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1/3/2012 1:31:31 PM
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Legal Opinions
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MAINTENANCE OF LEGAL NONCONFORMING USES UNDER S.A.M.C. SECTION 41-686
Date
5/2/1975
Agency
Planning & Building
Notes
OPINION 75-12
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OPINION N0. 75-12 <br />PAGE TWO <br />legal because it began prior to the enactment of those <br />restrictions. It thus constitutes a 10nonconforming use" <br />as defined in SAMC Section 41-126 and as such is subject <br />to the regulations contained in Article VI of the Zoning <br />Chapter (Sections 41-679 through 41-687). The landowner <br />,now proposes to use another portion of the same lot for <br />professional offices. Such use is permitted in the CD <br />use district (i.e., it is a "conforming" use). But if sec- <br />tion 41-686 applies, the landowner would be precluded from <br />initiating such an additional use on the lot unless he <br />either terminates the nonconforming use or obtains a vari- <br />ance allowing its continuation. By its terms Section 41-686 <br />only applies if the additional use (professional offices) <br />is a "use of a more restricted classification" than the <br />nonconforming use (repair garage). <br />But when is one use to be considered a "use of <br />a more restricted classification" than another use? Noth- <br />ing in the zoning chapter expressly answers this question. <br />Research into the case law has not disclosed any court-esta- <br />blished interpretation of such a phrase. It is our conclu- <br />sion that the phrase is too ambiguous and vague to permit <br />effective enforcement of Section 41-686. <br />One possible interpretation, as applied to the <br />present factual situation, is that professional office use <br />of property is a less restricted use classificat-ion than <br />repair garage use of property. Professional office use <br />is permitted in all of the professional and commercial <br />zones. Repair garages, on the other hand, are excluded <br />from all of them except the C2, C3 and C4 zones. Thus since <br />the repair garage use is more widely excluded., it can <br />be viewed as the more restricted use. By the same reason- <br />ing, but in more general terms, commercial uses in general <br />are more restricted uses than professional uses. <br />On the other hand, it may be argued that profes- <br />sional use districts are in general more restricted than <br />are commercial use districts because more types of uses <br />are excluded from professional zones. Thus use of property <br />for professional offices can be said to be more restricted <br />than use for a repair garage in the sense o~being first <br />permitted in the more restricted (i.e. more exclusive) type <br />of zone. This interpretation might be more persuasive if <br />the city had a "pyramidal" zoning structure with a succes- <br />sion of zones each allowing a wider variety of uses than <br />the zone immediately preceding it on the list. But, what- <br />ever may have been the structure of the city's zoning ordi- <br />~-- nances when the language of Section 41-686 was adopted, <br />-46- <br />
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