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Building a Better City illPartllershipWith You
MEMORA.NDUM
DATE:
Aogust .15,1994
TO:
FROM:
WhOITI itlnayconcern
ElreyB.Ash, F.E., Director EcOnOmiC&DeVelopmentServices~
Changesto site plan. of Fire Station #3
RE:
This memowill serve as the formal approvalofchanges referenced herein to the site plan of Fire
Station #3.. ~. The......16.foot6inchapronshown..atthewesterly.. side of the. site.. will be . constructed to
a width of 4 feet 6 inches. Theconcretedulnpster pad along with the fencing will be deleted.
Thefourshrubswhichwereplacedjustnorthofthispad for screening purposes will be moved to
locations shawn an the attached site plan. The sewer service line can be. a direct tap to the
sanitary..'sewerline. . Copies of this lnemo will'.be..sent to the referenced people and a copy of this
lnemowillbeplacedin the file' withtheapprovedsiteplan.
cc: Jiln\Voods,JH\VCoritractors
TOln Parker, Group 4. Architects
DaveGi 0 rdano,FireDep t.
t8a15ine Kuenzel, Staff Planner
David DODbs,QualityAssurance .Inspector
. A.i'~
l
I
CITY OF COLLEGE STATION
lEGAL DEPARTMENT
POST OFFICE BOX ggG() 1101 TEXAS AVENUE
COLLEGE 5T A TION, TEXAS 77842-9960
(409) 764-3507
, /'
MEMORANDUM
FROM:
The Zoning Board of Adjustment
Sabine Kuenzel, Senior Planner
Joey Dunn, Staff Planner
Pete Shively, Assistant City Attorney f~'
TO:
RE:
Non-Conform ingStructures
DA TE:
August 1,1995
COPIES TO: Jane Kee, City Planner
Jim Callaway, Assistant Director of Economic and Development Services
Cathy Locke, City Attorney
'"
'.~&-
BACKGROUND
Over the past year, a number of cases before the Zoning Board of Adjustment
have concerned the City's interpretation and application of the zoning ordinances
regarding nonconforming uses and structures. Many of these cases-and the primary
focus of this Olemorandum-4nvolved nonconforming structures, as opposed to
nonconforming uses.1lnaddition, and as part of several recent discussions among
,,:'_'~
1 Although the terms "use" and "structure", or "building'\are haphazardly used throughout the ordinances in a
manner that at least permitslhelnterpretation that .uses" and .structureslbuildings" are aU one and thesame..they
are not. . Nonconforming uses ' refer to, the type of use of the property . such' asmulti-famUy housing, single family
housing, manufacturing. retail, etc. An exampleofanonconfonning use, then. would be a retail store or a
manufacturing plant in an area . that.. is zoned exdusively for residential, housing'. ..' Conversely, nonconforming
structures or buildings are nonconfonningbecause some aspect of the specific physical structure fails to comply with
one or more of the..applicable.set-back.,lot size, parking. or other building requirements. .These ,latter
nonconformitiesare sometimes referred toas.bull( nonconfonnities by the comrnentators.As in the fact patterns
discussed in thismemo.theselwodistinctcategories ofnortconformities often require separate and distinct legal
analyselfiand outcomes. See, e.g., JOHN MIXON, TEXAS MUI'41P1PAL ZONING LAW 913.00. .at13--2& n.4 (2ndeci..1 994)
("Uses ~nd structures may sometimes be treated differently,... .")cifjng Mesarole v. Board of Adjustment~fDallas,
172 S.W.2d 528(Tex. Civ. App.-oallas 1943, no writ); and city QfJemey Villagev.Tex~s NQ, 3 Ltd.. 809~.W.2?
312 (T e~. App.-Houston {14thpisl]1991. no writ); see a/sq Sukth9nkar'~ Radnpr Township Zoning Appefl~.' 280
A.2d 467 (Pa. Commw.Ct.1971Hreversing the 10wercourtEind holding thattopro~ibitthe desiredconstn.l~i?n
"ignores.the distinction betwee~ n<)Oconfonning uses and~~mconforming buildings, obvious in fact and r~~nized in
law."); See a/soARTHUR J. ANDERSON ,TEXAS LAND USE LAw~~.1 at p. 8-1 (1990) ("tt is useful to considerfotjr
varieties of nonconforming uses: (1) nonconforming buildings. (2) confonning uses of nonconfonning bui.ldings. (3)
nonconformi ngusesof conforming buildings, and (4) nonconforming uses of land. te); 6 PATRICK J. ROHAN,. ZONING. AND
PS\08l01/9S
.,
Memo to the Zoning Board Of Adj ustrnehhmd Planning Staff
August 1, 1995
Page 2
City staff, the Planningpepartment hasr~C1uestyd. a ..Iegalopinion as to whether the
City'scurrentinterpretatipo of theapplicableotd inanee sections in these cases is
defensible and , . .rnore . generally, how-the nOnconforming us~ ordinance should be
applied to .variousJactpattemsinvolving .. (1}expansions; .(2). substitutions; and (3)
reconstructions · on.. sites with one .....ormore<. 'tstructuraltl.. ... nonconformities.. This
memorandum atternptstoanswer these and related questions for boththe staff and the
Board.
QUESTIONS PRESENTED
Based on · conversations and E-mail received from the Planning Department, I
have · formulateq the following.q uestions:
1. Under applicable principles of state and federal. property · law and the City's non-
conforming useordinance,mlJstaproperty owner who seeks. to expand a conforming
structure. on aSitewithaseparate,nonconformingstructl1re.. that .is not proposed for
expansion apply for a "speCialexception"andlirnit the size. of the proposed expansion
to 250k of the size of th.eoriginal, conforming structure?
>t~'- 2. In such cases, what building, structure, or area-if any-shoUld be used as the
basis for determining the applicant's compliance With the. 25% limitation on expansion?
3 How does the law on expandingnonC()nforming structures apply in cases
involving proposed expan$idnsofstructuresJhat are themselves nonconforming in that
they transect a building setback tine? Is the City's . current application · of the ordinance
in these cases correct?
4. How does the Jaw on expanding nonC()hforming structures apply to expansions
of structurally nonconforming signs (they exceed a setbackor size limitation)?
5. In the case of co nfonni ng changes Of use (e.g. change from retail tp restaurant in
a district.wherebothusesateperrtlitted) on s itesth at have one or more structural non-
conformities, is the protected status lost forallthe structuratnonconformities? And, in
general. how shouldtheordinance apply to these situations?
LAND USE CONTROLS ~ 41.01 [1], at4t-6 & n.11 (1986) (also defining 4 separate categories of nonconformities); 4A
NORMAN WILLIAMS, JR., AMERICANI.ANOPLAN~IN.G LAw~s 117.01- .03 (1986)( deVoting an entire chapter to
nonconforming buildings and nongo~formitiesJesulting sol~ly fr()cn non-<;ampliancewith one or more "bulk"
regulations relating to yard size, off-street parking, setbacks, etc..); and 1 ROBERTM.. ANDERSON, AMERICAN LAw OF
ZONING~6.01, p. 355'(2d ed. 1976)rUisrecognized that the distinction between a nonconforming building or
structure and a nonconforming use of land is genuine and may be criticaL").
PS\08/0 1/95
(j ,
Memo to the Zoning Board of Adjustment and Planning Staff
August 1,1995
Page 3
6. In the case of reconstruction of a structure that was nonconforming as to set-
back, size, or some other"bulk" limitation, is the City's prohibition against reconstruction
if the cost exceeds 60% of the assessed value constitutionally enforceable? And,
again, what is the law with respect to reconstruction of both nonconforming uses and
structures?
SHORT ANSWERS
1. No. An owner who seeks to expand a conforming structure on a site with a
separate, nonconforming structure that is not proposed for expansion need not apply
for a "special exception" and limitthe size ()fthe proposed expansion to 25%.of the size
of the original, conforming structure. Exppnsion of a conforming structure may not be
limited by the fact that there is a nonconforming structure, such as parking Iqt, on the
site. See Masterson v. Zoning Board of Appeals, 353 S.E.2d 727, 733 01a. 1987)
(expansion of conforming hotel permitted as a matter of right even though existing
parking spaces did not conform).
2. In such cases (where the owner is expanding a conforming structure on a
conforming use site, not a nonconforming feature or structure of the site), the expansion
should be permitted as a matter of right, and the ordinance requiring a special
'~> exception should not apply because the owner is not enlarging a "structure that is not in
compliance with this Ordinance." Rather, the owner is enlarging a conforming structure,
and thus no area. or structure should be used as the basis for calculating compliance
with .the 25% limitation. In cases that actually involve or require expansion of the
nonconforming feature or structure, however, the nonconforming feature itself should
be the basis for determining. compliance with the 25% limitation and not a conforming
feature that is only related because it is the basis by which the required number of
parking spaces or landscaping points are determined. Thus, for example, if the parking
lot is nonconforming in that all of it is not paved, the owner may increase the size of the
. parking lot by only 25%. of the existing non-Q?vemelJ!-upon approval of a special
r#)i exception. If the expansion wit! exceed 25% of the. original ~arkin~ lot size,the entire
1,~.~ parking lot must. be retrofitted: that is, the "structure [must. be] brought into compliance
with this ordinance." Alternatively, if the lot is paved but 10 of 40 parking spaces
encroach over a setback line, then the owner may expand the parking lot.as large as he
desires so long .as he does not enlfirge "the area devoted to a nonconforming. use". If
the enlargement. wit! put artY additional spaces outside the setback line, however, he
must limit that. enlargement to 2.5 spaces (25% of 10, not 25% of 40) and he must
obtain .a special exception. This appliC<ltion Of the ordinance is consistent with the
Planning Department's current practice with respect to portions of buildings that
encroach. over setback lifles. It is also consistent with the case law on this topic and
should be applied to other structural nonconformitiesas well.
PS\OBl01195
& ,
Memo to the Zoning Board of Adjustment and Planning Staff
August 1 , 1995
Page 4
3. It is expansion of the non-conforming feature of the non-conforming structure
that triggers the ordinance, not any expansion of other, conforming features of the
structure. Town Qf Seabrook v. D'Agata, 362 A.2d 182 (N.H. 1976). For example,
expansion of a building that is.nonconforming because of encroachment over a setback
is permitted without the need for Board approval as long as the expansion does not
expand the "area devoted to a nonconforming use." As stated above, this is consistent
with both the case law and the Planning Department's current policy with respect to
setback nonconfol1Tlities. This same rule, however, should apply to other bulk
nonconformities aswell:parking,'landscapinQ, etc.
4. There is a section of the City's sign ordinance that purports to require that the
sign-owners sole remedy isa variance, and not a special exception, in all C?ses where
the owner would be requited. to obtain a building permit to . make modifications or
enlargements to her sign. So. far as I am aware, signs are the only property rights
which if nonconforming are barred from the special exception procedures described in
Sections 6 and 15 of the Zoning ordinance. Otherwise, and were it not for the specific
language of the City's sign ordinance, I would conclude that nonconforming signs
should be treated in the exact same manner as other nonconformities.
~v 5. No. A change from one conforming use on a particular site to another
conforming use do not mean that any structural nonconformities on that site are lost.
Under the applicable City ordinances and the case law, only a. change to the use of.the
structural feature that is . nonconforming requires application of the ordinance and
approval by the Board. Thus, if a conforming retail use changes to a conforming
restaurant use and the parking lot is nonconforming in that there are sufficient spaces
for both uses but the lot, which continues to be used as a parking lot, is not paved and
is not enlarged or o~herwise changed in, use, the structural nonconformity must be
allowed to continue. Only if . the . own~r proposes making some change to the
nonconforming parking .. area thatWil1eith~rincrease the tlonconforming structure or
featureitself..or. Shiftitfrom.one...nonconfwrming aspect to. another (e.g. .she plaTs to
remove the nonconfprming lot ~ut con)it:ruct anew, paved lot or some other ... new
structure thatwillen9roachover a setp~~k line), would the nonconfOFmingu~~ or
structure ordipaf1?6 q~ply. This,if additi?~~tparking or landscaping wereneed~d,! the
expansionm;:Iy.not e~()eed ~5% of theori~ipal size of the~npaved parking are~~(Tthe
existingdeficitoflan~~paping points unle~~lth~()wner retrofits the. entire parki~~I';are~
or eliminates thelarjlClscaping deficit.! ~mfmg~~ . in conforming uses or strtjl(3~wesi
howev~r,.donot tri~.gerapplipation p~.ithip.,ordinance .. and status of structural
nonconformitieson the site that are not ch~qged must be permitted to continue.
6. This one is fairly debatable. ThereJisplef1~of case law-both old and new-that
sustains the constitutionality of these types of ordinances,. which in the City's case
PS\08l01/95
Memo to the Zoning Board of Adjustment and Planning Staff
August 1,1995
Page 5
allows reconstruction of a nonconformity only if the cost of reconstruction is less than
60% of the appraised value. The theory underlying these types of ordinances is that
the value of the nonconforming investment has been lost (by fire or whatever) and that
the property should noW have as much value to the owner if used in a conforming
manner. This theory, however, fails to account for the now quite common practice of
insuring structures: with insurance, the nonconforming use still has value in that the
insurance will..pay to replaGe it. While the courts have upheld the application of these
ordinances under varying circumstances, they also construe . them quite strictly against
the local governing body. Also, the exact nature of the non co nf() rm ity (use, structure-
and what exact feature) is very criticalin determining how lheordinance applies. In
order to avoid either an illegal application. of this ordinance s~ction ora charge that the
City is unconstitutionally ''taking'' the owners property, we highly recommend that the
Planning Department submit any case~here this ordinance might apply to the Legal
Department fora case-by-case review and amalysis.
DISCUSSION
With two known exeeptions,2 the Planning Department currently interprets the
nonconforming. use ordinance as requiring Board approval. of a special exception for
.~~" any expansion of any structure on sites. having any nonconforming structure or use.
More specifically, the Planning Department interprets the ordinance as requiring that
sites with nonconforming .parl<ing and/or landscaping be. treated as nonconforming
uses. rather than nonconforming struct~res or "bulk" features. JL par.!s!.n..9,. an.fL.
_~~~r~tre~f}!2~i!}[~e~-
otherimprovemenJJDalwouldexpand the!nonconforyninfj. us~. QJt~l?e, ll1ade
~ ~-in-recentcases'on-Gfaham Road "iriVOMng-
proposed expansions .toconforming buil9ingsand uses on sites with nonconforming
parking areas, this interpretation requires i the property owner to (1) apply to the ZBA
and (2) limit the proposed area of building expansion to less than twenty-five percent
(25%) of the original area of nonconformity. ..
Also, in cases like these involving. parking or landscaping no nconfo rmities , the
Planning Department has further interpreted the ordinance to require that the square
footage of the proposed building expansion be compared with the square footage of the
2 The first exception concerns expansions on church-owned property because of "first amendment concerns.fl The
second exception is for structures that are nonconformil')g simply because they encroach over building setback lines.
Where an expansion to these buildings is proposed. the Department applies the ordinance as follows: "[T]he portion
of the building that is within the setback area is conside~ed the 'area of non-conformity.' We calculate the 25% off of
the portion'ofthebuilding that isactuaUy encroaching. If a building has,an'encroachment on one side, but the
expansion is.planned on the side that does not encroach. we allow this without board action." I call this the "setback
exception."Withparking and landscaping non-conformities, however, the Department flconsider[s] the whole 'use' to
be non-conforming."
PS\08l0119 5
I ,
Memo tothe ZoningiE3oardof Adjustm~r.t.andPlannir.g Staff
August.t,.1995
Page 6
confonning .building__anejinotthe sq uare footag~of the nonconfoll11ing parking area-in
orderto detell11ine cornplianCe with the 25% . limitation of the ordinance.
Inc:x>nsidering<these interpretations, it is important to keep in mind the general
principle that .'[z]oninglaws are in derogation of common-law rights to. the use of
propertyandar~subjectto . strict construction. . They should not I be .. extended "by
interpretationtoca$esnotcl~ar1Y within tb~ir s8Qpeand purpose. . E~cePtio~s favoring
property~V{nersshould be liberally construed i~ theirfavor.IlTtlOma~v. . ZQnin$1 Board
of Adjustment,241S.VV.2d95S,957(T~x. Giv. App.-fastland1951iiflowrit). .Fin~lIy,
and for purposes of analyzing and di~cu~sing theseinterpretationS.~Bdthea~pHca8Ie
law, I have re-organized the following .analysis of questions 1-3intp the follpwing 2
issues.
I. Should parking .....and . landscaping .nonconformitie.s be treated like
nonconforming uses or..in the same manner as nonconforming stnjictures--or
"bulk" nonconformities?
A. The Gity. Ordi{1an<>es. Section 6,"Non-Gonforming Uses and Structures"
provides.the following definition:
~~
"Non-eonforming.use . shall mean . the I use . of. any .property which
would,. in the absence of an exception permitting such use to
continue, subject to Jestrictions, be contrary to the proVisions of this
ordinance."
Nonconforming structure$iare.pot separately .defined in the ordinance. The ordfnance
does,however, continuetotef~rence both non C<)nfo rming "buildings" and "structures".
For example, · subsection 6.1.' provides as . follows:
"Except as hereinafter specified, . any use, building or structure
existing at the <time .'ofenactment of the Zoning Ordinance or
classificationarnendrnerlt applicable to its use, may. be. continued
even though such use, building or structure may. not.conform with
the provisionsofthisordirtance for the. (iistrict in which it is located."
( emphasis added).
There is no further definition contained within the City's Noncbnforming Use Ordinance.
The Landscaping and Pari<ingsubsections of theZorting Ordinance also do not indicate
whether .. priornonconforTliitie$ in those . JeaWres are to be. treated as "structural"
nonconformitiesoras "use"nonconformities. . Accordingly, the ordinances are at least
ambiguous on this point, and we must look to the case.1CiWfor guidance.
PS\08/0 1/95
Memo to the Zoning Board of Adjustment and Planning Staff
August 1, 1995
Page 7
B. The Case Law. Texas case law has established that parking areas with
even rudimentary improvements such as grading or crushed gravel, are nonconforming
structures. See City of Jersey Village v. Texas No.3 Ltd., 809 S.W.2d 312 (Tex. App.-
Houston [14th Dist.] 1991, nowrit) (holding that an outdoor storage parking area that
was fenced, drained, graded, and covered with crushed gravel was a legal, structural
nonconformity). Case law from other jurisdictions also treats parking-and even the
absence of any required parking-in the same manner as a structural or bulk
nonconformity. See Mastersoll v. Zoning Board of Appeals, 353 S.E.2d 727, 733 01a.
1987); and BucksCW. Bous. Oev. Corp. v. Bristol Borough Zoning Hearing Board, 591
A.2d1178 (Pa. Commw Ct. 1991) (absence of required parking treqted as structuraJ
nonconformity). Also, better drafted;zoningordinances from other jurisdictions list "off-
street parking" with "building bulk, dimensions, height, area, yards, density'" etc. as
being nonconf6rmingstructures. See, e.g., Vermont Stats. Ann. Tit. 24, g4408(a)(2).
Although I .could . find no case law directly on .point,in my view sites that are
nonconforming in that they do not have sufficient landscaping-or any landscaping-
should also be treated as "structural" or bulk nonconformities. Even though, strictly
speaking, there is no "structural" element to the landscaping (or the absence thereof), it
'~..t"_. is nonetheless a "physical" feature of the property that is much more akin to parking,
setbacks,lot size, etc. than it is to the "use" of the property as, for example, a retail
store, a motel, or a single-family home. I recognize that the landscaping requirements
may weUberelated to the use of the property in that the amQuntofnonconforming
landscaping will often depend on the specific useot the property.. . This is also true,
however, of setback and lot size requirements, which are< clearly structu~al types of
nonconformities.
II. Should Structural Nonconformities be treated differently than Use
Nonconformities and if SO, how?
Yes. Structural, or bulk, nonconformities should be treated differently, separately
from use nonconformities. Most relevantly, perhaps, in the case of a structural, or bulk,
nonconformity, only the specific nonconforming feature should be evaluated in terms of
enlargement, substitution, or repair-and not, as with nonconforming uses, the entire
site.
A. The .Form of the Ordinances. Beginning, as always, with the plain text
of the applicable City ordinances, Section 6, "Non-Conforming Uses and Structures", of
the Zoning Ordinance provides as follows.
PS\OBl01/95
Memo to the Zoning Board of Adjustment and Planning Staff
August 111995
Page 8
U6.3An existing use or structure that .is not in compliance with
this Ordinance or classification amendment applicable to the
use or structure shall not be enlarged, extended, reconstructed,
substituted, or structurally altered . (except should same be
required by superior law or by Court order) unless:
A. The use or structure is brought into compliance with this
ordinance; or
B. Exceptas foHows:
* * *
2. When authorized by the Board of Adjustment in
accordance with the provIsions of Section 15,
enlargement or completiorr of abuilding devoted to a
non-conforming . use may be ',' made 'upon the lot
occupied '.'.bysuchbuilding, ,where.. ,such extension is
necessaryandincideTtatlolhe existing use of such
~uilding.and does note~cted...tWenty-five percent (25%)
oftheoriginalareaofnon-conformity.u
~;~
ld. (emphasis and italics added). The otherapplicaplesectionofthe Zoning Ordinance
is Section 15, "Special Exceptions, Variances, Appeals, and the Board of Adjustment."
"15.2 POWERS AND DUTIES: The Board of Adjustment shall have
the following powers:
c. To hear and decide requests for special exceptions to:
***
2. Allowtheenlargementofabuilding devoted to a non-
conforming user where such enlargement is necessary and
incidental to the . existing . use of such building and does not
increase the area of the building devoted to a non-conforming
use more than tWenty-five percent (25%} and does .,notprolong
thelifeofthenon-conforminguseorpreventa 'return of such
property toa conforming use." (emphasis added).
~~":;: t'; 1...,
My "plain reading" of these ordinances, as suggested by the highlighted clauses
above,is that they unambiguously apply only to theenlargementof"[a]nexisting use
or structure that is not incompliance witf1 this Ordinance ...... Grammatically
speaking, the use of the word "that" without commas to set off the clause makes the
clause restrictive. Thus the rest of the sentence is limited by. and to the text of that
PS\OB/01/95
Memo tathe Zoning Board of Adjustment and Planning Staff
August 1, 1995
Page 9
restrictive clause. Accordingly, only uses or structures that are not in compliance are
subject to the prohibition on enlargement. Conversely, uses and structures that are in
conformity may be "enlarged, extended, reconstructed, substituted, or structurally
altered" without reference to, or application of, this section of the zoning ordinance.
The italicized portion of Section 15 further supports this interpretation. This
section limits the requirement of a special exception to expansions that would "increase
theare.a of the building devoted to a non-conforming use ... .It The clear implication
being that there may well be enlargements that do not increase the area of the bqilding
devoted to a nonconforming use, and these enlargements, not being subject tp the
ordinance, may be made without obtaining a special exception or limiting the size of the
enlargement to 25% of. the area.. of the conforming structure. This interpretation
comports with the Planning Department's current interpretation and practice with
respect to setbacks (see the "Setback Exception" in note 2, supra).3
B. The Case Law. In addition to the foregoing "grammatical" analysis of the
applicable ordinances, there is a wealth of legal precedent holding thafenlargements to
structures that do not increase the nonconforming features of the structure op the site
are permitted as a matter of right. The case law from other jurisdictions, for example, is
..~",,,,. uqiforminholding that the presence of one nonconforming structure on a siteooes not
barthe owner from expanding a separate, conforming structure or use.
In Masterson v. Zoning Board of Appeals, 353 S.E.2d 727, 733 (!Ja. 1987), the
owner wished to expand his hotel operations by the construction ofa new high rise
hotel and an adjoining conference center. The only nonconformitles on his property
were structural in that.one of the parking areas violated certain setback lines. The new
construction would all be conforming. The surrounding landowners objected to the
3 It is also important to note that although Section 6 refers to both nonconforming uses and structures, the section
that permits enlargement of a nonconformity only references "enlargement ... of a building devoted to a
nonconfonning use" . Section 15 repeats this same language. Reading 'the ordinance strictly as written, then,
suggests that only. nonconforming uses that are housed in buildings may be extended by a special exception-and
then only by enlargement of the building. Structural nonconformities and nonconforming uses not housed' in
buildings may.'not be 'enlarged at allunless'the "structureis.brought into compUance.withthis ordinance.... The
meaning of the ordinances on this point. however, is ambiguous in that Section 6 is encaptioned as "Non-
Conforming,.Uses and Structures". (emphasis added). The.firstsentence of the Section, however, only defines
non-conforming uses. .. Later subsectionsthenagain mention"structures". It is possible that the Council intended to
include both types of nonconformities within each special exception provision and <1id not realize their distinct nature
orthe necessity to separately define and reference them both. This point may be resolved, however, bYithe
interpretation of the local zoning official. The Planning Department's "Setback Exceptiontt applies the nonconfonning
use ordinancetobuUdings that have a structural nonconfonnityinthat they encroach over setback lines but their
"use" is conforming. Accordingly the intel'pretation of the local zoning official is thafnonconformingstruqtures are
included with nonconfonning uses in the ordinance section.permitting expansions and thus those~tfUdt~res may be
expanded by either (1) coming into compliance; . (2) expanding, the "original area of nonconformity" by 25,0/0 or less";
or (3) expanding so as not to expand the area of nonconformity.
PS\08l01/95
Memo to the Zoning Boardof,Adjustment and Planning Staff
August 1, 1995
Page 1 0
planned construction and argued that under the local zoning ordinance, "no non-
conforming structure may be enlarged, extended, reconstructed, or structurally altered
unless the non-conformity is eliminated; ....ft Id.The. neighbors also argued that any
addition to the existing structures "necessarilyincreases the non-conformity." Restated,
this latterargumentis,essentially,that a nonconforming parking lot should be treated
as a nonconforming Uuse" of the entire property-and since a nonconforming use cannot
be enlarged, no enlargement ofany use ofthe property may be pennitted. The Virginia
Supreme Court, however, rejected this argument, treated the nonconfonning parking in
the same manner as a. setback, or.. structural, nonconfonnity, and found that the "only
reasonable construction of [the ordinance] is that it allows additions or alterations that
themselves conform tozoningrequirements,assuch changes cannot also increase the
nonconformity.n Id. In rejecting the neighbors interpretation of the zoning ordinance,
the Virginia Court held as follows:
\;,~
"Ifan ownertshouselawfully does not meet one side setback and the
owner proposes an addition to the other side of his house. that
conforms to current requirements, he is not required to tear down the
nonconforming portion of the house; naris he precluded forever from
enlarging his house because of the nonconformity. Under this
interpretation, ... the new hotel unit, which itself complies with, the side
setback requirements, does not increase the nonconformity.
Similarly, the removal of [existing] motel units and. construction of a
conforming conference. cente~on the adjoining lot does not increase
the nonconformity of the existing 68 parking spaces. lying outside the
side setback requirement."
Id.4
In Town of Seabrook v.O'Agata,362A.2d182 (N.H. 1976), the owner1s home
wasnon-conforminginthatitsetona lot that was less than the minimum prescribed
size and it encroached on side setback lines. The owner proposed to enclose an
existing carport to use as. a storage room. The proposed enclosure would not further
encroach on the side setbacks, nor would it decrease. the lot size. The town brought
suit to enjoin this proposed construction and .argued that under the local ordinance,
which prohibited the expansion of nonconforming uses, the homeowner could not make
the planned addition. The Supreme Court of New Hampshire disagreed with the town's
interpretation of its zoning ordinance. "We.interpret that phrase to indicate an
expansion in the nonconforming featureS of the dwelling, rather than an addition
4 See also Gagne v. LewistonCrushed Stone Co.. 367A.2d613 (Me. 1976} (Maine Supreme Court rejects
interpretation :of zoning ordinance that would prohibit the.construction and attachmentofa conforming building and
use to an existing nonconfonning structure).
PS\08/01/95
Memo to the Zoning Board of Adj ustment andPlannihg Staff
August 1 ,1995
Page 11
which entirely conforms to the zoning ordinance.... The [owner's1 storage room ...
[does not] affecfthe proximity of the dwelling to the sidelines. It does not render the lot
sizeproportionaHy more inadequate.1t Id.at183(emphasis added).
Other cases have similarly held that additions to conforming structures or non-
conforming structures are permissible under local zoning. ordinances so. long as the
addition does not increase the nonconformity~and that only an increase to the same
non-conformingfeature is an increase in the nonconformity. That is, an addition to
some other, conforming feature of the structure does not increase the non-conformity
and must be permitted.s As stated in Shell'l1an v.Borough of Harvey Cedars Zoning
Board of Adjustment, 577A.2d170(N.J.Super. Ct. App.Div.1990), cert.denied, 585
A.2d 402 (1990),'Whereanoncoflformingstructureis expanded in size - and the
addition itself does n.otadd tothepre-existing nonconformity, the construction official
can issue a building permit without the need to apply to the Board of Adjustment ...
ft Id. at 171 n.1 (emphasis added).
In addition to the Virginia Beach case cited above, there isa Pennsylvania case
that also discusses non-conformingparking,with respect to additions toa conforming
structure on the site. In Bucks Cty.Hous.Dev.Corp. v.. Bristol Borough Zoning Hearing
'~~4'~' Board, 591A.2d1178 (Pa. Commw Ct. 1991), the owners wished to. convert a one-
story commercial building into a four unit residential apartment, which was a permitted
use in the zoning district. The site was nonconforming , however, with respect to
setbacks, minimum lot area, and parking-it had no off-street parking at all. The Court
analyzed the various nonconformities and concluded that the proposed conversion to
residential units. would either lessen or have .noeffecton the existing noncotlformities.
Specifically, with respect to parking, for example, the Court found that the proposed use
would require fewer parking spaces than the present use.
"According to section 701 ,'of the ordinance, ,the commercial use of the
property requires one parking space for every 150 square feet. The
present commercial space measures 1,900 square feet, according to
5 See also Yocum Zoning Case, 141 A.2d 601 (Pa.1958) (owners residence did not conform to frontand side yard
set-backs; in holding that the owner should be permitted to add on to the 2nd floor, the Pennsylvania Supreme Court
held that the owner-s "plan forthis nonconforming building neither extends nor increases nonconformity ... .1;
Martens v. Zoning Board of Appeals of Marcellus, 600 N.Y.S.2d 600 (N.Y. App. Div. 1993) (addition of 2nd floor to
building that encroaches upon side yard setbacks would not violate the ordinance's prescription 'against enlarging a
nonconforming structure); Spring Garden Civic Assn. v. Zoning Board of Adjustment of Philadelphia, 617 A.2d 61, 65
(pa Commw. Ct.1992) Goinder of one building,. non-confonning to, as to. rearyard, setback,to another conforming.
building. will not increase.the.non-conformi{y, therefore local ordinance does' not apply); Sukthanka~sRadnor
Township Zoning Appeals. 280A.2d467 {Pa.Commw.. Ct ..1971 ) (court . reverses lower court and permits remodeling
of Carriage House that encroached on rear and side yard setbacks, holding that the remodeling was not an addition
to a nonconforming use. because the construction work would not increase any setback nonconfonnity).
PS\08/01195
--, .- -_..~.~
Memo to the Zoning Board of Adjustment and Planning Staff
August1,1995
Page 12
the Board's findings, and thus requires at least twelve parking spaces.
[The existing two units would require an . additional 4 spaces] Thus to
conform to the ordinance, the entire present use of the property
requires 16 parking spaces.... In contrast, for a low rise apartment
building, the ordinance requires one space for every .5 dwelling unit
[sic]. The four.. apartments would therefore require 8 parking spaces.
Hence, the. proposed use would decrease the parking nonconformity
by 8 spaces.1t
Id. at 1180-81. Thus, expansions to conforming buildings that do not increase the area
of nonconformity of a .separate structure or feature-such as off-street parking or
landscaping-should be permitted.
This is not to say, however, that any and all expansions of conforming structures
have.. .no effect on the off-street parking or landscaping requirements iand that the
expansion to the conforming structure must be permitted without limitation whenever
the parking or landscaping is legally nonconforming. Where, as in ColleQe9t~tion, the
off-street parking and landscaping ordinances are linked to . the size,iof any new
construction or the enlargement of an existing building, , . theowner;may-as a
"~<r. consequence-be required to provide additional off~streetparking orlan9~~ping: thus
affecting (enlarging) the very feature. orstrl.l?fure th~tisnonconforming.. .In this case,
then,thenonconforllling ordif"lancewillapply becaus~theClctual nonconforming feature
is being enlarged rather than another ,conforming feature of the site.
In College Station, both the Parking Ordinance, Section 9, and the Landscaping
Ordinance, Section 11, apply whenever abuilding permit is necessary fora given site-
although they use dif{erentwording and inthe 9<ise oflandscaping, the requirements do
not apply to single family or duplex development.
"9.2 OFF-STREET PARKING SPACES REQUIRED:, In all districts,
for all uses, at .thetimeany building or structure is erected or
enlarged orincreased!incapacity,oratany time any other use is
established, thereshall.be provided off-street parking spaces for
motor vehiclesim:acbordance with the requirements specified herein."
(emphasis.added). '
"11.1 APPLICATION OF SECTION:
A. ...Suchlandscaping requirementsshaU become applicable as
to eachindividuallotat:such timea~apptication fora building permit
on such lot is made."
PS\08l01/9 5
Memo to the Zoning Board of Adjustment and Planning Staff
August 1, 1995
Page 13
Accordingly, ifthe proposed enlargement of a conforming building would-under either
or both of these ordinances-require enlargement of a nonconforming parking lot or the
addition of landscaping to a site with nonconforming landscaping, then the
nonconforming use ordinance also applies to insure that the expansion of these
features is no more than . 25% of the original area of 11 onconformityor that the entire
feature is retrofitted to conform.
This interpretation is also supported by the case law. In the only case that I
could find that discussed nonconformillg landscaping (as welt as. a nonconforming off-
street parking lot), the court held that a municipality could require a grocery store, V'hich
was a conforming use in the district, to install conforming parking and landscaping as a
condition ofenlargi~gthe conforming store structure. See Bastian v. City of Twin ,Falls,
658 P. 2d 978 (Idqho Ct. App. 1983t The reason, however, that the court .uph~!d the
city's action wasll()t because the enlargement of the conforming store was cpn~trued
to be an expansion of a nonconforming use. Rather, the rationale was tt)qt the
proposed expansion of the grocery store building"triggeredcertainlanqsca~iflg a~d off-
street parking requirements under the municipal code." Id. at98D. If. asthe>~wl[ler
desired, the off-strEPet parking and landscaping were not added to ke~p pace with the
enlarged floor space of the store (as required by the ordinanpe), the actual
~' non<~onforming fe~tures..:..the inadequate landscaping and. parking--w~:>uld themselves
be impermissiblyehlarged. That is, the site would have gone froql, a deficit of,for
example, 20 pave<:i spaces and 50. landscaping points to a greater deficit of 3D paved
spaces and 75 landiscapingpoints.6
c. Other Authorities. At least one of the commentators has also
recognized the unique nature of structural, or "bulk", nonconformities and, in fact,
devoted an entire' chapter of. his treatise to addressing this issue. See 4A NORMAN
WILLIAMS, JR., AMERICAN LAND PLANNING LAw gS117.D1 - .0.3 (1986). At the risk of
plagiarizing this author, I quote at length several of the relevant sections.
"mhere is a different kind of nonconformity, which raises far different
qnd far less serious problems-nonconformity with the various bulk
regulations. For example, in what is perhaps the most typical
situation, many buildings in older neighborhoods have yards
(especially side yards) which are much smaller than would be
desirablefornewbuitdings and the applicable bulk regulations
6 It is not dear from the court1s opinion whetherthe owner in this case was only required to install the additional
landscaping. and parking necessary to accommodate the enlargement of the store. or whether she was also required
to retrofit the rest of the existing site: ,this would have depended on the exact text of the local ordinance and whether
it permitted expansions of nonconformitiesup to a certain percentage (without retrofitting). or whether no expansion
is permitted' atall--in which case the'entire site would have to be brought into compliance.
PS\OB/01195
Memo to the Zoning Board of AdJustment and Planning Staff
August 1, 1995 r
Page 14
impose stricter requirements for new buildings, .... However, such
regulations really have no relation to the principle zoning problem in
such areas. ...Insuch a situation, it is quite reasonable to insist that,
if a yard is already too small, no construction shauldbe permitted
which would make such a yard smaller--th;atis, speaking mare
generally, that no existing nonconformity should be increased.
H:owever, there is no re.asonwhy such buildings should not be
expanded . inotherr~spects,where such. ~)(pansion would not
violate the bulk regulatio~sfor new buildings. In the situation
described above, Wart addition is needed, itsnould be permitted at
the rear, satang as itdoesnatinvade the required rear yard.
Id. at9117.01, pp. 283~84 (emphasisadded).7
III. Nonconforming Signs
Thetast paragraph of Section 12.1 of the Zoning Ordinance provides as follows:
'~'~~~N'.'.
"The Council finds that it is imperative that enforcement officials apply
this section as it is written, in the interest of equality and fair and
impartial application to all persons"..and that.the use,'of, the. variance
procedureshaU remain the sole administrative means to obtain any
exception to the terms hereof. " Id. (emphasis added).
This language arguably limits the means by which a nonconforming sign <?wner may
legally expand, alter, substitute, or reconstruct her sign. Whereas owners of other
nonconforming structures may apply for a special exception, the nonconforming sign
owner can only apply for a variance., Accordingly, the Planning Department's current
practice-bringing aU applications for changes to nonconforming signs to the Board as
applications for variances rather than as special exceptions to a nonconformity-is
co rrect 0
Of course, this ordinance does not-nor could it-affect the right of a
nonconforming sign owner to simply maintain the existing nonconforming sign as it is.
7 In a footnote,the author describes a nearly identical fact pattemfrom a real case in New Jersey. The property
was nonconforming in that it lacked sufficient street frontage. The owner planned an addition to his garage in back,
and "[t] he local officials refused a permit, on the ground that this was a nonconforming use and so could not be
enlarged In anyway. ... A wise local lawyer, on hearing of the problem, commented that this was not a case of
nonconforming use, it was merely a case of non compos mentis." lQ. ats 117.01, p. 285 n.1 (citing Princeton, N.J.
Borough Board of Adj ustment, meeting of May 6, 1954, item No. 2.) Given authorial license, there is at least some
possibility that the author is quoting himself.
PS\08/0119 5
Memo to the Zoning Board of Adjustment and Planning Staff
August 1, 1995
Page 15
Also, the ordinance only limits the owner's administrative remedies, it does not limit her
right to seek direct judicial relief.
IV. Change or Substitution of Use: One Conforming Use to Another on Site
with Structural or Bulk Nonconformities.
The Planning Department's current interpretation and practice with respect to
changes in use ''where the zoning allows both the new and the previous use" is to allow
the change and "not even require board action" if the "negative impact" of the structural
or bulk nonconformity is "diminished" or if the use of the nonconforming feature-such
as landscaping-will be the same but the overall use of the rest of the property is clearly
"less intense."Conversely,if the new conforming use of the property will require an
expansion of the nonconforming feature-such as parking or landscaping-or if the new
conforming use won't require an expansion of the nonconforming feature but will require
a more intense use of the property in some otherrespect,orif the new conforming use
is not clearly "less intense," the Planning Department interprets this to be a change in
use "and all protection under nonconforming status is lost and all new standards apply." .
What this means in practice is that if a conforming retail store with a
~tJf" nonconforming building, . parking area, or landscaping is changed in use to an also
conforming use in that district, such asa day care center or restaurant, the Planning
Department applies the nonconforming use ordinance and either al.lows the change in
use ''without board. action" if the neW use isclearly"less intense" ,or requires theimatter
to come. before the Boatd fora special exception andiadetermination that the n~wuse
is lessintense.Potentiall~,thiscouldmean that apennitted use in the 'distri~w9uld be
prohibited because ofalegal nonconformity in landscaping, parking, or even a building
setbackline.8
A. The City Ordinance Sections. Section 6.3 of the Nonconforming Use
Ordinance provides as follows (emphasis added):
"An existing use or structure that is not in compliance with this
Ordinance or classification amendment applicable to the use or
structure shall nofbeenlarged, extended, reconstructed, substituted,
or structurally altered (except should same be required superior law
or by Court order) unless:
8 I don't know whether the Planning Department also applies the "setback exception," which they use in cases of
expansions to nonconforming structures, to cases of substitutions or changes in use so that changes in
conforming uses of buildings. that are nonconforming ,solely because of encroachment over a setback line are
permitted.
PS\08/01195
Memo to the Zoning Board of Adjustment and Planning Staff
August 1, 1995
Page 16
A. The use or structure is brought into compliance with this
ordinance; or
B. ExceptasfoUows:
1. When authorized by the Board of Adjustment in
accordance with theprqvisions of Section 15, the substitution for a
non--conforming use of another non-conforming use, or an extension
of a non-confornling use, may be made. U
Section 15.2.C.1:, then, provides:
"Allow the substitution of one non-conforming use for another non-
conforming use when the extent of the substituted use is found to be
less detrimental 'to the environment than the first."g
..:;~~~.,
Leaving aside the quite .awkward syntax section 6, the literal meaning of the ordinance
appears to be that the ordinance only. applies to the substitution ofa "use or structure
that is not in compliance with" ~tte ordinance. If the substitution is of a conforming use
for a conforming use, however, and the nonconforming structure is to be used in the
same way-for parking for example-in which case there is no change in use for that
nonconforming structure, then the ordinance should not apply. More laconically, the
change in use is conforming and there is.no change in the structure.
If, on the other hand, the change in. use also required an expan~ion of the
existing parking .or landscaping, then the "expansion" section of the ordinanc~ would
apply as discussed above. Again,.the issue becomes whether to treat landscaping and
parking requirements asa"use" of the property or as a "bulk" or "structural" regulation-
like setback lines, lot sizes, and building code requirements. For the reasons set forth
in the section discussing expansions of nonconforming structures,. I think that the better
practice is to treat landScaping and parking as structural or "bulk" nonconformities,
which are not necessarily changed or affected (though they may be) whenever the
"useu of the property changes.
9 Reading the ordinancestrictfy, and as with expansions (discussed above). the substitution section of the
ordinance only applies to a "non...conforming use'" and not nonconforming buildings or structures. Given the factors
discussed in footnote 3 above, itisatleastambiguousas to whether the Council intended for the term "non-
conforming use" to be exclusive of structural or bulknonconformities.Also, to exdudestructural non conformities
altogether from the application of this ordinance subsectionwouldpennit an owner to change a structurally
nonconforming parking area intoastructuraUy nonconforming storage area orsome structurally nonconforming
building so long as the "use" was permitted. In aU likelihood, thiswasprobab1ynot the intent of the Council.
PS\08l01195
Memo to the Zoning Board of Adjustment and Planning Staff
August 1, 1995
Page 17
B. The Case'Law.
There are very few cases, at all, that discuss changes in use of nonconforming
structures as opposed to changes in nonconforming uses of the property.10 Clearly,
however, where the proposed change in use is in fact pennitted, or canfonning, in the
given district, a structural nonconformity that is not affected by the change in use does
not prohibit the owner from making the conforming change. See Petruzzi v. Zoning
Board · of App~als, 408 A.2d. 243 (00nn.1979).ln Petruzzi, the owner wanted to
change the use of a site from a church to a single family residence, both of which were
permitted .uses in the district. Thelot,however, did notconfonn to the city's area,
setback, and frontage requirements. . The trial court found that the proposed use
violated,the city's zoning ordinance, which provided that "onenonconfonning .use may
not.besubstituted fOl"another." The Connecticut Supreme Court, however, recognized
the difference betWeen a nonconforrning use of the land. and "a building or lot having a
condition of legal nonconfonnity." ~n~ where the nonconforming building is not
changed in any way,only the use oftf1~building is changed ftomone permitted use to
anothen the zoning orAinancedo~sn9t apply. See alsp SeCisideProperties etal. v.
Zoning Board of Appeals ofFairfi~I~'542 A.2d746 (C€mn"1\pp. Ct. 1988) (following
Petruzzi,and holdingthatanownere<:>>uld expand theppnfo"11ingseasonal use of his
.~ single f~~i1y cottages to . a conformin~Jear-roundsirn~lefanli~y use even though the
properf1 ~as noncof")fonning witmTe~~7rt tplot size ~n~ setp.~cks); Bucks Cty. Hous.
Dev. C@r~, v. BristoIBorOughZon~n~~~aring Board,~~1 A.~d 1178 (Pa.Commw Ct.
1991). (P?nnittingchange in. us~fr~rn nonconfo~in~"J ....C<)mmercial. to confonning
residenti~1 even th01l9mstructuralnon<fpformities woul~stiU 1~ist); . Spring Garden Civic
Assn. vf ~oning Boar~:Lof Adjustrn~n~()!f?hiladelphia, 6.17A.2q61, 65 (Pa. Commw. Ct.
1992) ("An existing non-confonning structure may be put to any use pennitted 'in the
district so long as the altered use doe not increase the non-confonnity of the
structure. U).
Of the severa'l hundred cases and the seven or eight treatises that I have
consulted, all of the remaining cases andcommenta.-yaddressed changes in the use of
the property and not. situations involving one or more structural or bulk
nonconfonniti~s. Accordingly, I would argue that there is. very. little support for an
interpretation of our City's zoning ordinance that would prohibit changes from one
confonningilise to another confonning use '{'here there is some structural
nonconfonnitY on site that is nof beimgaffected b~the changei in Use. Where the
change in use, however, also requires or proposes to enlarge,.. structurally alter, or
10 It may be sunnised that part of the explanation for this relative dearth of case law is thatfew municipalities have
attempted t~ interprettheir ordinances so as to prohibit changes in conforming uses where there is a structural
nonconformity on the site.
PS\08/01195
Memo to'the ZoningB.oardof Adjustment and Planning Staff
August 1, 1995
Page 18
substitute the actual and speCific nonconfofjllling structure or feature, that change may
be regulated as follows. First. and as stated tabove, if the change in use of the property
also requires additional parking or an expansion of the building on the site thatwill then
require additional landscaping, then this enlargement of. the actual nonconforming
feature will require application of the zoriingordinance in the manner previously
discussed. Second, if the change in use of the property proposes to alter or substitute
the use of the actual nonconforming structure into some other nonconforming use or
nonconforming structure (e.g. change ndnconformingparking area. into an i also
nonconforming skating rink), then ... that .change . will requireappljcation of. the
"substitution" portion of. the ordinance,.. a special e)(~ption, . and a d~tern;tin~tion. of
whether ''the extent of the substituted use is .u less detrimental to the environment that
the first [use]."Section15.2.C.1.
v. Reconstruction
The Legal Department has at various times advised the Planning Department
that the portion of the City's zoning ordinance that restricts an owner's right to
reconstruct a damaged or destroyed nonconforming use is either unconstitutional, or its
not, take your pick. ;',
~,~~'
A. The Ordinance
Section 15.2 C.3. of the City Zoning Ordinance permits a nonconforming
structure to be reconstructed as follows.
15.2 POWERS AND DUTIES: The Board of Adjustment shall have the r
following powers:
***
c. To hear and decide requests for special exceptions to:
***
3. Allow the reconstruction of a non-conforming structure or building on
the lot or tract occupied by such building if the cost of reconstruction is
less than sixty percent. (60%) of the appraised value of the structure or
building and if the reconstruction would not prevent the return of such
property to a conforming use or increase the non..,conformity of such non-
conforming structure or buHding.11
11 Perversely. the section of the. Zoning Ordinance that specifically addresses non..conforming uses does not
address the reconstruction of anon~nforming use. Compare 99 6.38.1, 2, and 3. Undoubtedly, this section
should be changed so that itconforms with section 15.2.
PS\08l0 1/95
q;r
Memo to the Zoning. Board of Adjustment and Planning Staff
August 1, 1995
Page 19
B. The Case Law
It is true that there is a widely reported Texas case that declares unconstitutional
a city ordinance, substantively identical to the College Station ordinance, that allowed
for reconstruction of a non-conforming use only where the cost did not exceed 60%- of
the reasonable value of the use. ~Adcock v.King, 520 S.W.2d 418 (Tex. Civ. App.-
Texarkana 1975, no writ). ltisalso true that with respect to the issue of when or if a
nonconforming use has been lost through abandonment, the Texas courts and this
officeha"e stated. that abandonment requires a separate act evincing an intent to
abandon the use-in addition to the physical destruction by fire or other accidental
means of the structure: . See Plemon~-Eakle Neighborhood V. Ci{yof ~marillo, 694
S.W2d 218 (Tex.. App>..Amarillo1985, writ refd n.r-e.); .and.Memorandum from · Cathy
L.ocke, City Attorney, to Sabine Kuenzel 2 (June 28, 1991) (on file in Legal
Department). Thus, if the question ... were solely wheth~r. the destruction of a
noncqnforrning building were sufficient to <x>nstitute an' ab~nd9nment so as to permit
the Gity to prevent reconstruction, the answer is "no". Texas>case law is clear that
destruction alone is not an abandonment of the non-conformity, and in the absence of
any other applicable ordinance, the owner must be allowed to rebuild,....even if the
~ structure were completely destroyed. See PI~mons-Eakle, 694S.W.2d at 221.
As the above italics suggest, however, the Adco~k and Plemons-Eakle cases
should not be reads()broadly so as to construe as unconstitutional all applications of
the 60% reconstruction rule. AdCOck .00erelystates that Texarkana's interpretation, or
application, of the 60% ruletothe particular facts ofthatcase was unconstitutional. In
. Adcock, the owner operated an auto salvage business, anon-conforming use. One of
the business's five buildings burned (beyond 60% of its v~lue), and the City refused to
grant the owner abuilding pennit to rebuild based on thez()ning ordinance. The owner
requested a hearing before the Board of Adjust.ment, ~l)ich also. denied the owner's
application for a permit. The trial court, however, found the ordinance to be
unconstitu~ionaland ordered the City to issl.le the permit. Upon appeal, by the City, the
Court of Civil Appeals foun~ that the "partially destroyed~uildingwascUlintegrat part
of the businessard represe?ted blve~typercent of the business value' of the buildings
used in theopera~ion."/ Ad~pk520S.W.2(tat 422. (emphasisa<:ided).Orrthesefacts,
then, the Gourt fuelq thattme "orpinance, interpreted .as the city atternptsto do, is
unconstitutional as applied ~() [t~70wnerl.ll. Jd. at 422-23. Thu~, th76p% ordi'1'ancr is
unconstitutionalonl~ wflen ~ppliedto nOJl~nformin~ uses and when the total value of
aU the structures is not included in the determination of the percentage.
PS\08/01195
Memo to the Zoning Board of Adjustment and Planning Staff
August 1 , 1995
Page 20
Thus and as applied to non-conforming structures (or uses if the total value of
the non-conforming use is taken into account), ordinances of this type remain
constitutional and are flusually sustained by the courts, except where they are shown to
be unreasonable or arbitrary."12 As noted by Mixon in J!3~as Municipal Z~>ning, Law, the
court in Zoning Board of Adjustment pftubbock v. ~raham &.AssQcigtes. Inc., 664
S.W.2d 430 (Tex. App.-ArnariU01983, nowrit), "did not question the constitutionaHtyof
a Lubbock ordinance thafallowedthe reconstruction of nonconforming uses if the cost
of restoration would not exceed seventy-five percent of total replacement COSt."13
As pointed out by the Adcock case. however, there are some serious limitations
on how such reconstruction limits may be applied. First, if the nonconformity is a use,
the value of the entire use must be considered. Second, if the nonconformity.is a use,
the value of both the site and the value of the business on that particulqr sit~mU$t,be
considered as well as the value of the destroyed structure. As stated by Mixon,"[i~f the
primary value of a nonconforming Use lies. in its devotion.. to a particuJarbusin~$s'and
not to a particular structure, then the location and business may continue to hrvr value
for continued operation of thei b~sjn~ss, even though, the structure i1 destr~yed."14
Third, the case law is replete wittiC8sesholding that ord,iqances based on "a~sessed
valuefl are unconstitutional beCClu~Eathe. assessed valpef~ils to accur~~ely re~:ect the
.~ fair market value of the structureo~ use and thus effect;Si~nunconstitutional t~king. of
private property .15 And fourth, .... thr ~rider1ying theoW!: behind the.'! reconstruction
ordinances-that after the destru~~iqn of the nonconfo"T'j~, the properi)' has as much
value to.the owner if developedj~ Cilpornforming man~Ear~ften fails to account for the
full value of the site when used f~f ?par;ticuJar business:~~d the effect of insurance on
the calculations of continuing value... For all these refl~ons, I recommend that each
case involving destruction ofa nonconformity be submitted to the Legal Department for
a case-by-case review and. analysis.
126 PatrickJ. Rohan, Zoning ~nd L-anc;i U~eControlss 41.03[5], pp. 41-90 - 91 (1986) (and cases cited therein); ~
also Robert M. Anderson, American Law pfZoning S 6.58, p. 490 (1976 edition) (and cases cited therein).
13 Mixon. at 913.19. p.13-24 (1993).
14 Id.. at p.13-23.
15 See, e.g., O'Mara v, Coungl & City of Newark, 48Cal Rptr. 208 (1965) (75% of assessed value equaled only
18% of real value and application of ordinance under this ratio held to be arbitrary and invalid); Incorporated Village
of North H9mell v., Rauber, 40 N.Y .S.2d 938 (Sup. Cl Stueben County, 1943) (75% of assessed value equaled only
23% of true value); and State ex reI. Home Ins. Co. v. Burt. 127 N.W.2d270 CVVis. 1964) (property was far
underassessed) .
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Memo to the Zoning Board of Adjustment and Planning Staff
August 1 t 1995
Page 21
Summary:... Nonconforming Structures-Parking & Landscaping
.~.
By reference to Nonconforming "Uses and Structure" and "[a]n existing use or
structure", the City's ordinance sections clearly indicate that both kinds of
nonconformities (use and structural) are contemplated within the scOpe of the zoning
ordinance. The.ordinance sections also indicate that enlargements. or additions that-do
not "increase the area of. the building devoted to a nonconforming. use" are not
prohibited and should be permitted as a matter of right. Whatis less clear, however; is
which property rights are intended to be treated as "nonconforming u~es" of the entire
site and which are to be treated as nonconforming structures...l..()~ which only that
structure or its nonconforming feature is barred from expansion.,\lVith respect to
nonconformities resulting from encroachments over setback Iines,fMe City~s zoning
official interprets the ordinances as only applying to that "portion of~rr buildingtha~is
actually encroaching" and if ''the expansion is planned on thesi~e'that doesflot
encroach," the special exception ordinance is not applied and the owrer! need n'?ts~~k
Board approval. As discussed above, this interepretation isconsis~ent with theqca~e
law, all of which supports the general interpretation .that"b~lk'\ or str-uctufal
nonconformities-such as setbacks and lot size-shot.lld .oot bar,: .th~ owner{~~rn
expanding separate conforming stru?tures or uses. All pf mecomrn~nt~tors re~og:n~e
the significance of the difference between the two types?fnone<;>nfp~ities. Ami ,the
one commentator to address this isrue at any .Iength cleCiqycon(ilu~e~: that structural
nonconformities should not prohibit an owner from,e)(p~pding:,,~t~er conforming
structures on the site. The question; then, is whether nonco~~~rmin~ll!~~i1kingareas and
nonconforming landscaping should qe treated in the s9Ifl'1e,f!1~nneF~sthese structural
("bulk") nonconformities or as nonconforming uses of the entire site.
As cited above, there is one Texas case that holds that a parking area is 'a
nonconforming structure. See City of Jersey Village v. Texas No.3 Ltd., 809 S.W.2d
312 (Tex. App.-Houston [14th Dist.] 1991, no writ). Otherwise, and with respect to
landscaping, however, there are no Texas cases directly on point. There aretwo more
recent cases from other jurisdictions, Masterson. v. Zoning Board of App~als, 353
S.E.2d 727,733 Wa. 1987)and6ucks Cty. Hpus. Dev.Corp. v. Bristol Bo[ough Zoning
Hearing Board, 591 A.2d 1,178 (Pa.CommwCt.1991)-both discussed above-that
treat off-street parking as a structural or bulk nonconformity and hold that the presence
of nonconforming parking should not bar the expansion of other, conforming structures
on the site so long as the proposed expansion does not itself increase the
nonconformity of the parking.
My own view is that both off-street parking and landscaping requirements are
much more akin foother structural, or building code, or bulk requirements than they are
to the type of "use" of the property. I also believe that to treat landscaping and off-
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Memo to the Zoning Board of Adjustment and Planning Staff
August1,1995
Page 22
street parking as nonconforming uses that prohibit any other expansion of any structure
or feature on the site, whether conforming or not, will eventually expose the City to
litigation. This conclusion is based on 3 rationale: (1) the strict construction of zoning
ordinances in favor of property owners and against municipalities, (2) the case law
clearly treats parking requirements as a structural nonconformity and the reasoning of
these cases would appearto..apply with equal or greater force to landscaping issues;
and (3) the contemporary trend inland use cases: favoring individual property rights
over the power of governmental entities to regulate that property.
Accordingly, I would suggest that proposed additions to conforming buildings
and uses, where there is nonconforming parking or landscaping, be permitted as a
matter of right whenever the addition will. not require any additional p~rking or
landscaping. When the addition to the building does require additional parking and
landscaping, the owner should seek Board approval of a special excepti~n for the
required expansion of the parking 011 landscaping and must limit the expansion of that
feature to 25% or less of the "original area of nonconformity" (the whole parking Ipt if
the whole lot is unpaved,or just the number of sitesthflt actually encroach qver a
setback if that is the nonconfor01i~). In the case of lCindscaping, . the;'defieit" of
landscaping points should beuseqii~~the basis for the"pri~inal area of non9pnfomnity."
For example, if the site has a d~fi8i~ of 1 00 points,th~ ...Iandscaping could only be
expanded by 25 points without;~r~~rg to retrofit the <iH]'ire site. For any required
expansion of parking or landsca~Jir~that would exce~~~5% of the "original area of
nonconformity" or for which the!i~~~er fails to obtairy! 13pard approval of a special
exception, the ownermust both C<J>,~~lnJct and install thraqpitional required parking and
landscaping in a conforming manner and retrofit the "original area of nonconformity" as
welt.16 '
16 I realize that it is yet an open question as to whether an owner must construct the additional parking or
landscaping in a confonning manner when he obtains a special exception to enlarge that particular nonconfonning
structure or feature. As with much else, the City's ordinances are not dear on this point. The general policy of
discouraging and tenninating all nonconfonnities supports an interpretation that requires the additional elements to
be confonning even when the special exception is obtained (the exceptionwould just pennit the expansion of the
feature without the need to bting the existing parking or landscaping into compliance). The arguments on the other
side are (1) the sttictconstruction of land-tJse ordinances in favor of property owners'tights that is required by state
and federal law; . (2) consistency with the Planning Department's "setback exception", which pennits the size of the
nonconfonnity to increase up to 25% in setback cases; and (3) the idea that enlargement means enlargement of the
degree of nonconfonn.ity. not justenlargement of the structure without increasing the degree of nonconfonnity. In
light of the foregoing, I Wouldsl.lggest that the ordinance as written does not require the additional construction to
confonn if a special exception is granted. Short of amending the ordinance. however. the ZBA could consider this
issue under its requir~rnent to determihe whether the exception "will prolong the life of the nonconfonning use or
prevent a retumof such property toa conforming use." Section 152.C.2. oUhe Zoning.ordinance. In addition. the
Board could requir~ that the e)(panded area be constructed in a confonning manner as a condition of granting . the
special exception.
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