II. THE LAW OF NONCONFORMING USES
A. IDENTIFYING AND HANDLING NONCONFORMING USES
Kentucky attorneys involved with real estate and zoning matters need to be familiar with Kentucky’s rules applying to nonconforming uses. Nonconforming uses, nonconforming structures and nonconforming lots are usually valuable assets worthy of protection. As a rule, public policy favors gradual elimination of nonconforming uses, nonconforming structures and nonconforming lots.
Although the rules applying to these uses have no application in counties and communities without zoning laws, it is important to understand these general principles since you may need to advise clients owning property located in a jurisdiction which is in the process of adopting its first Comprehensive Plan and Zoning Regulations.
- THE MEANING OF “GRANDFATHERED” USES AND PERMIT APPLICATIONS
The basic rules pertaining to nonconforming uses were prescribed by the Kentucky General Assembly for cities, counties and other government entities that enact zoning regulations. The General Assembly mandates that the zoning regulations include provisions “for nonconforming use and land and structures”. KRS 100.203(1). Our discussion today begins with a review of the Kentucky Revised Statutes, but is also important to also consider local rules pertaining to “nonconforming uses and structures” set forth in local zoning regulations. For your reference attached are sample regulations on “nonconforming uses and structures” from Jefferson , Oldham and Henry Counties, Kentucky.
KRS 100.111(13) and (21) defines “nonconforming use or structure” and “structure” as follows:
(13) “Nonconforming use or structure” means an activity or a building, sign, structure, or a portion thereof which lawfully existed before the adoption or amendment of the zoning regulation, but which does not conform to all of the regulations contained in the zoning regulation which pertain to the zone in which it is located.
• • • • • •
(21) “Structure” means anything constructed or made, the use of which requires permanent location in or on the ground, including buildings and signs.
The Kentucky statutes do not contain a statutory definition for a “nonconforming lot”. It is probably safe to assume that you can substitute the word “lot” into Chapter 100’s definition of “nonconforming use or structure” and apply the same general rules.
The basic Kentucky rules for a nonconforming use are set out in KRS 100.253 which provides –
(1) The lawful use of a building or premises, existing at the time of the adoption of any zoning regulations affecting it may be continued, although such use does not conform to the provisions of such regulations, except as otherwise provided herein.
(2) The board of adjustment shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted, nor shall the board permit a change from one nonconforming use to another unless the new nonconforming use is in the same or a more restrictive classification, provided, however, the board of adjustment may grant approval, effective to maintain nonconforming –use status, for enlargements or extensions, made or to be made, of the facilities of a nonconforming use, where the use consists of the presenting of a major public attraction or attractions, such as a sports event or events, which has been presented at the same site over such period of years and has such attributes and public acceptance as to have attained international prestige and to have achieved the status of a public tradition, contributing substantially to the economy of the community and state, of which prestige and status the site is an essential element, and where the enlargement or extension was or is designed to maintain the prestige and status by meeting the increasing demands of participants and patrons.
(3) Any use which has existed illegally and does not conform to the provisions of the zoning regulations, and has been in continuous existence for a period of ten (10) years, and which has not been the subject of any adverse order or other adverse action by the administrative official during said period, shall be deemed a nonconforming use. Thereafter, such use shall be governed by the provisions of subsection (2) of this section.
(4) The provisions of subsection (3) of this section shall not apply to counties containing a city of the first class, a city of the second class, or urban-county government.
Shortly after State Government constructed Capitol Avenue from the Kentucky River to the steps of the State Capitol, the City of Frankfort set out to enact zoning ordinances in 1939. Ada Darlington purchased a one-story residence on the corner of Second and Capitol Avenue in Frankfort for the purpose of converting it into a florist shop. In October of 1939 she submitted detailed plans for an expanded structure on the property seeking a building permit to remodel her property for use as a retail florist shop. The Frankfort City Council denied her legitimate request for a permit and enacted an emergency ordinance prohibiting all commercial businesses on Capitol Avenue. Later it passed a zoning ordinance prohibiting a “retail business” on Capitol Avenue. The Franklin Circuit Court sustained the action of the City. Ada Darlington appealed. In Darlington v. Board of Councilmen of City of Frankfort, 282 Ky. 778, 140 S.W.2d 392 (1940), Kentucky’s highest court found that the property owner purchased the property to construct a florist shop and was proceeding forward with the conversion supported by a “restraining order” when both the emergency ordinance and general zoning ordinance in Frankfort were passed. At p. 396, the Court held:
“If she had not thus acquired a vested right to proceed, it is difficult to conceive how such a right could be acquired. Surely it could not be seriously contended that if appellant had completed the alteration of her premises and opened her florist shop, she could have been compelled to demolish her building or discontinue her business. If so, constitutional safeguards of property rights are meaningless. Obviously, it is not the amount of money expended which determinations the vesting of the right, since one property owner might be required to expend more in the preliminary steps of altering his property for the conduct of a particular business than his neighbor would be compelled to expend in completing the alteration of his property for a different type of business.”
The Darlington opinion held that the property owner had acquired rights protected by the state and federal constitutions which were “vested” and “when, prior to the enactment of such restrictions, the owner has in good faith substantially entered upon the performance of the series of acts necessary to the accomplishment of the end intended.” It follows that not only are nonconforming rights of property owners protected by Kentucky statute, they are also protected by the state and federal constitutions and the courts.
There are three basic ways a nonconforming use can be created. They are:
Ø A prior established use becomes a “nonconforming use” when a community’s first zoning ordinance is enacted, if the use does not conform with the requirements of the new zoning district.
Ø A “nonconforming use” may be created when zoning regulations or zone changes are enacted which result in an existing “conforming use” becoming a “nonconforming use” because of non-compliance with a new regulation. This frequently happens when “area wide” rezonings occur and the Planning Commission or the local government is the applicant. “Area wide rezonings” have taken place occasionally in Jefferson County resulting in an increase in the number of legal “nonconforming uses”.
Ø The ten (10) year rule. Except in counties containing a city of the first class, a city of the second class or an urban-county government an “illegal use” for a period of ten (10) consecutive years that has not been the subject to an adverse action by an administrative official shall be deemed a “nonconforming use”. KRS 100. 253(3). I am unaware of any reported case in which a court has been asked to decide if the ten (10) year rule should apply to all counties and that KRS 100.253(4) is unconstitutional as “special legislation”. I anticipate such a case will eventually make its way to the appellate courts, unless KRS 100.253(4) is removed from Kentucky’s legislation.
As a general rule “contemplation of use” is insufficient to create a nonconforming use status. In 1970 the Scott County Planning Commission placed a freeze on all development which was not an “agricultural use”. At the time a property owner had expended $68,000 of an estimated $85,000 cost to purchase and improve eight acres upon which there was a motel. The property owner had prepared plans, negotiated with contractors, lenders, engineers and utility companies and obtained a health department permit for conversion of the motel into apartments and a trailer park. Citing Darlington v. Board of Councilmen, Kentucky’s highest court held that Kentucky recognized one exception to the general rule that a “nonconforming use” must have been actually demonstrated prior to enactment of the zoning ordinance prohibiting it. A nonconforming use would be established “where substantial construction has been made on the property or substantial expenses incurred relating directly to the construction prior to the ordinance. Perkins v. Joint City-County Planning Commission, Ky., 480 S.W.2d 166, 168 (1972).
Where a property owner has established a “nonconforming use” the provisions of KRS 100.253(1) recognizing the validity of nonconforming use take precedence over any conflicting local ordinance. City of Paducah v. Johnson, Ky., 522 S.W.2d 447 (1975).
In Dempsey v. Newport Board of Adjustments, Ky. App., 941 S.W.2d 483, 485 (1997), the Kentucky Court of Appeals noted that while a nonconforming use may be deemed “undesirable” by some citizens “[i]t nevertheless constitutes a legitimate, vested property right and clearly enjoys broad constitutional protection . . . Vested property rights are not easily lost or voided.” A legal nonconforming use can continue its existence indefinitely if its character remains the same. Grannis v. Schroder, Ky. App., 978 S.W.2d 328, 331 (1998).
2. EXPANSION OR ENLARGEMENT – MEETING TIGHTER RESTRICTIONS
A local board of zoning adjustments shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its original operation. KRS 100.253(2). In general, the zoning regulations of Jefferson County, Oldham County and Henry County prohibit any expansion of nonconforming use. However, § 205(1) of the Oldham County Zoning Regulations create an exception to this general rule for “residential uses on lots of more than one acre . . .”. As a rule, Kentucky courts have prohibited any efforts to expand a nonconforming use. In Ashland Lumber Company v. Williams, Ky., 411 S.W.2d 909 (1967) a nonconforming use by a lumber company was located in a residential zone in Ashland, Kentucky. The owner of the lumber company approached the City Manager and City Attorney for their opinions that construction of an additional building at the lumber company would be a permissible expansion of a lawful nonconforming use. The company obtained a building permit and had substantially completed a new building when neighbors began to protest and filed a lawsuit. The Boyd Circuit Court ruled that the new building must be removed from the property within one year. Recognizing that the lumber company would suffer a substantial loss, the Kentucky Court of Appeals found that the lumber company had taken a deliberate gamble, had hoped to get away with erection of the new building and on appeal did not even suggest that the expansion of the use was legal under zoning regulations.
The 1998 Court of Appeals opinion of Board of Adjustments, Bourbon County v. Brown, Ky. App., 969 S.W.2d 214 (1998), may have created some opportunity for property owners to claim the legal right to a “modest” expansion in a legal nonconforming use. In that case, the property owner operated an auction house as a legal nonconforming use. She later enclosed the front porch of the auction house with siding to add a restroom and increased the number of auctions from two to three per week. The Kentucky Court of Appeals affirmed the decision of the trial court that the physical changes in the auction house and the increase in the number of auctions did not constitute an illegal enlargement or expansion of the nonconforming use prohibited by KRS 100.253(2). The key to the Court’s opinion was the holding of A. L. Carrithers & Son v. City of Louisville, 250 Ky. 462, 63 S.W.2d 493 (1933) where the court found that extending of the walls of a building to enclose space for relocating prior operations was not a substantial change in the building and, as in the expansion of the auction house, the enlargement was limited to an area under the existing roof of the building.
Any enlargement or expansion of a nonconforming use should be avoided, if possible. While minor changes such as those referred to in Brown apparently are legal, court opinions have not established a “bright line” test as to what expansions are illegal.
3. WHAT CONSTITUTES A “CHANGE OF USE?
Where a legal nonconforming use exists property owners occasionally are faced with a question of whether a “change in use” is legal and whether a proposed “change in use” will cause the loss of the legal nonconforming use status. Frequently these issues occur where a property with a nonconforming use is sold or where a new tenant plans to occupy the property with the established a legal nonconforming use. Because the law generally favors elimination of all nonconforming uses, legal scrutiny of any change in use for a nonconforming property is necessary, unless the new use conforms with existing zoning laws. KRS 100.253(2) prohibits a Board of Zoning Adjustments from authorizing a change from one nonconforming use to another unless the new nonconforming use is “in the same or a more restrictive classification, . . .”. Jefferson County regulations allow such changes provided its Board of Zoning Adjustments first finds it will not “change the character in the neighborhood or detract from the enjoyment or value of property in such neighborhood”. In addition, the Jefferson County Board Zoning Adjustments may impose additional conditions on the use. You should consult the local regulations for similar considerations if a change of use is proposed.
In City of Bowling Green v. Miller, Ky., 335 S.W.2d 893 (1960) Kentucky’s highest court decided a case involving a building located in a residential zone which had been previously used by a furnace company to display and store furnaces and parts. A new owner of the property moved his plumbing, heating and sheet metal business into the building with an established legal nonconforming use. The appellate court reversed the decision of the trial court finding that the change in use had shifted the use of the building from a passive use for storage and sales to a manufacturing use which was prohibited. The opinion assumed that the plumbing business was legal, but found that the sheet metal business was unlawful.
In Franklin Planning & Zoning Com’n v. Simpson County Lumber Co., Ky., 394 S.W.2d 593 (1965), the court decided that storage of logs stacked three feet higher than previously stored bricks was not a materially different use and was a lawful “change in use”.
Each case involving a change in use must be considered on its own facts. The Versailles Board of Adjustments denied the right of a property owner to continue to operate a screw company in a building that for the previous twenty years had been used for repair of farm tractors. The Appellate Court reversed the trial court which had affirmed the denial of the proposed use. Kentucky’s highest court found that the operation of a screw company was a less obnoxious and more restricted than prior use of the property as a plumbing business and tractor repair business. Smith v. Howard, Ky., 407 S.W.2d 139, 143 (1966).
4. WHEN A USE IS NO LONGER IN USE –
DEALING WITH ABANDONMENT OR DISCONTINUANCE
Kentucky’s law regarding nonconforming uses involves two conflicting public policies. First, there is the public policy that nonconforming uses are “vested”, constitutionally protected rights. Second, there is a public policy is that nonconforming uses should be gradually eliminated. Between these two policies are rules relating to “abandonment” of a nonconforming use. Jefferson County, Oldham County and Henry County regulations all contain provisions on abandonment and generally provide that a nonconforming use may not be reestablished if it has been discontinued for a period of twelve (12) months. Although the Jefferson County regulations provide that the burden of proof of establishing abandonment is on the party asserting abandonment, that burden shifts to the property owner and there is a presumption of abandonment, if the nonconforming use has not been used for a period of one (1) year.
In situations where abandonment of a nonconforming use is an issue, a careful review of local regulations is important. The general rules regarding abandonment are set forth in a series of Kentucky cases. A finding of abandonment by a final court order is significant, because thereafter the former nonconforming use may not be reestablished.
One of the leading cases on abandonment is Martin v. Beehan, Ky. App., 689 S.W.2d 29 (1985) which sets forth some of the general rules pertaining to abandonment. They are:
¨ A nonconforming use is a constitutionally protected property right.
¨ Whether the nonconforming use has been abandoned depends on the “intent” of the property owner. Intent to abandon may be inferred from a long period of disuse.
¨ Discontinuance of a nonconforming use does not itself constitute abandonment.
¨ An ordinance may properly create a presumption of abandonment.
¨ The presumption of abandonment may be overcome by substantial evidence.
In Martin a hotel building located in a residential zone had not been operated for ten to fifteen years. The property owner had periodically sought to sell the property as a hotel. The Kentucky Court of Appeals affirmed the decision of the Kenton Circuit Court that the property owners had failed to prove their “intent” to continue the nonconforming use either as a hotel or as an acceptable substituted use. The owners of the hotel did not participate in the litigation and the Court concluded simply that it was their intention to sell the property and there was an “intent” to abandon its use rather than perpetuate it. Martin also confirmed that where a legal nonconforming use had been abandoned, it “cannot be revived”.
In Smith v. Howard, supra, the court found that the inability of a property owner for approximately one year to lease his property to continue its “nonconforming use” was not “abandonment”. Particularly since there was no evidence that the property owner intended to give up the vested use and had exercised due diligence to lease the property. The court in City of Bowling Green v. Miller, supra, p. 894, reached a similar result although the nonconforming property had been vacant for nine months.
These cases should be contrasted with Holloway Ready Mix Company v. Monfort, Ky., 474 S.W.2d 80, 83 (1971). In that case the court concluded that a ten-year period of non-use of a quarry was sufficient to show an intention to abandon the quarry. Particularly, when coupled with testimony from one of the owners that he had told neighbors his company had no intention of operating a quarry in the future.
5. MODIFYING THE USE – RECEIVING ADMINISTRATIVE APPROVAL
Kentucky statutes contemplate that a Board of Zoning Adjustment may permit a change from one nonconforming use to another new nonconforming use, if the Board first determines that the new nonconforming use “is in the same or a more restrictive classification.” The current Jefferson County Regulations provide that the local Board of Zoning Adjustments may permit such change in use under specific conditions provided the new use is less intrusive than the old use and the local neighborhood is protected. There are no known appellate cases which address this issue specifically. Perhaps because such modifications in uses are similar to “down zoning” they are not controversial and as a rule do not lead to litigation.
B. DISTINGUISHING NONCONFORMING LOTS AND STRUCTURES
1. SIMILARITIES AND DIFFERENCES FROM NONCONFORMING USE
Kentucky statutes define a “nonconforming structure” as a building, sign or structure or a portion thereof which lawfully existed before the adoption or amendment of a zoning regulation, but does not conform with the zoning regulations for the zone where it is located. KRS 100.111(13). There is no statutory definition for a “nonconforming lot”. HIn practice and by many local zoning regulations it is a lot which was created before the adoption of the current local zoning regulations that is smaller than the current minimum lot size required in a particular zoning district. Many of the same rules that apply to a nonconforming use apply to nonconforming structures and lots. Nonconforming structures and lots are created by the enactment or amendment of zoning regulations.
The ten year rule which applies to the creation of “nonconforming uses” does not apply to nonconforming structures and lots. KRS 100.253(3) applies only to the creation of a new “nonconforming use”. Lay people frequently refer to nonconforming structures and lots as being “grandfathered”, i.e. exempt from zoning regulations. The common characteristic of nonconforming structures and lots is that typically they do not meet the dimensional characteristics established for a specific zone.
Nonconforming structures are often easily identified because they in some way are different in appearance than nearby structures. A nonconforming structure was the subject of City of Bowling Green v. Miller, supra p. 894. In 1958 the City of Bowling Green zoned an area residential. At the time, a “commercial type” building existed on a residential street. Usually nonconforming structures are offices, commercial buildings and industrial buildings located in residential zones or industrial buildings located in commercial zones. Occasionally, nonconforming structures conform with the general type of zoning classification such as single-family or apartment zoning, but do not conform with subsequently enacted zoning regulations relating to permitted size, including height of buildings, or do not conform with setback requirements. Grannis v. Schroder,supra, in part involved a barn constructed before the adoption of Harrison County’s zoning regulations which violated those regulations which required a 75’ building setback. Thus, making the barn a nonconforming structure.
2. APPLYING LOCAL ORDINANCES – EXPANSION OR ENLARGEMENT MATTERS
As a general rule, nonconforming structures may be repaired and maintained indefinitely. It is essential to consult zoning regulations to determine what rules, if any, apply to expansion or enlargement of a nonconforming structure. For example, in Oldham County and Henry County, an addition for substantial remodeling of a nonconforming structure may be granted after public hearing by the Board of Zoning Adjustments if it first determines that the addition or substantial remodeling will not expand a nonconforming use. In contrast, Jefferson County, Kentucky, regulation § 803(b) allows expansion of a nonconforming structure may be expanded for uses permitted in the district where it was located only if the expansion does not increase the nonconforming aspect of the structure. For example, if the nonconforming structure does not conform to height regulations it may be permissible to increase the square footage of the building provided its height is not increased and provided it otherwise conforms with the zoning laws.
3. ELIMINATING NONCONFORMING LOTS – MERGERS AS AN OPTION?
There is no reported case concerning nonconforming lots in Kentucky. Certainly it should be assumed that zoning principles require the elimination of nonconforming lots over time. One common technique to eliminate a nonconforming lot is to merge it with an adjoining lot to create either a larger nonconforming lot or a conforming lot. Local legislation may include provisions regarding the elimination of nonconforming lots.
Gates v. Jarvis, Cornette & Payton, Ky., 465 S.W.2d 278 (1971) provides insight as to how a Kentucky court would view an “amortization” ordinance requiring elimination of a nonconforming lot. In that case the City of Greenville in 1958 adopted an ordinance authorizing continuation of nonconforming uses but requiring the “amortization” within two years of adoption of the ordinance of certain kinds of nonconforming uses involving signs, billboards, junk yards and lumber yards . The court in Gates held that the “amortization” provision of the ordinance should be strictly construed based on principles of strict construction and the court determined that the “amortization” did not apply to the elimination of a nonconforming “trailer park”. Similarly, in City of Paducah v. Johnson, supra, p.448 the court held that KRS 100.253 which authorized the continuation of nonconforming uses prevailed over the provisions of a Paducah “amortization” ordinance which required the elimination of nonconforming junk yards in Paducah within two years of the enactment of the ordinance. The appellate court affirmed the trial court’s summary judgment invalidating the provisions of the city ordinance because they conflicted with the provisions of KRS 100.253.
It should be anticipated, that although nonconforming lots are not specifically recognized by Kentucky statutes, an appellate court would likely invalidate an “amortization” ordinance which sought to require the elimination of nonconforming lots in part because the existence of and ownership of the lot cannot properly be destroyed and forfeited.
WHEN THE STRUCTURE BECOMES ABANDONED –
VOLUNTARILY OR THROUGH DESTRUCTION
Jefferson County Zoning Regulation Article 8, §8.3(F.) provides that a nonconforming structure looses that status in the event of a voluntary demolition of the structure. If a nonconforming structure is involuntarily removed or destroyed the property owner has one year to reestablish the structure which requires obtaining all necessary permits and approvals and executing contracts for the improvement or in the absence of contracts to reconstruct that the new improvement is under construction “to a substantial degree” within one year.
As opposed to a “nonconforming use” which may have a perpetual life a “nonconforming structure” while it may be repaired and maintained may not be replaced under Jefferson County regulations unless it was involuntarily destroyed or removed. There are no reported Kentucky cases addressing this issue expressly however, in Whiteco Metrocom Corporation v. Commonwealth, Ky. App., 14 S.W.3d 24 (2000) the court affirmed a summary judgment for the Transportation Cabinet in a case involving a billboard regulated by Kentucky’s Billboard Act. The billboard had been constructed near the Pennyrile Parkway in 1967 and it operated legally until 1990 when a statutory change altered its status to that of a nonconforming advertising device. It continued in that status until it was destroyed in a storm in 1995. Although Kentucky regulations permitted routine maintenance to the sign, they provided that when major repairs were made on a billboard the nonconforming status was lost and the billboard became illegal. The Kentucky Court of Appeals affirmed a trial count judgment that nonconforming use status of the billboard was lost, after the billboard was destroyed as a result of storm damage.
It should be noted that the Whiteco Metrocom Corporation case was decided by a divided Court of Appeals panel in a 2-1 decision. Although the Whiteco opinion may be cited if a similar issue is litigated concerning a nonconforming structure, the outcome may be different in an appeal based on different facts and principles of zoning law.