Non-Conforming Uses

In its most basic form, a nonconforming use is the use of a property which is no longer a permitted use under current zoning regulations but was permitted under prior zoning (or, in some cases, before there was zoning). In effect, a prior permitted use is grandfathered in despite the current zoning status. For instance, imagine the neighborhood where you run a business is rezoned as a residential area. Does this mean you have to shut your doors? No. Non-conforming uses play a key role in real estate development as a creative solution to promote urban infill through reuse of existing properties, as it may allow a use that is not otherwise permissible

sketching of building construction on flying book over urban scene use for civil engineering and land development topic

There are two catches to non-conforming uses. The first catch is that the non-conforming use cannot substantially change the nature of the use in a more intense fashion. For instance, if an office building as non-conforming use has ten stories, the owner of the building cannot add two more stories to the building. The non-conforming use must be of the same type and intensity. The building owner could likely remove two stories from the building, making it an eight-story building. Once the building has been reduced, however, the building owner cannot then build two stories back on to the building, making it a ten-story building again. Once the non-conforming use has been reduced, it cannot be expanded again back to prior form.  In other words, non-conforming uses are a one-way street – you can stay where you are or de-intensify, but you can never expand.

The second catch is that the non-conforming use typically must be continuous. In Lexington, Kentucky, for instance, if a non-conforming use is discontinued for a year or more, the non-conforming use may not be resumed. If the non-conforming use becomes a permitted use, it cannot then revert to a non-conforming use.

The practical upshot of non-conforming use is that land use attorneys can help businesses identify properties with non-conforming uses that are ripe for reuse. For instance, a legal non-conforming restaurant may find new life from a new proprietor, and the practical effect of the updated zoning precludes other restaurants from setting up shop in the immediate area. Non-conforming use is a practical and creative way to give new life to existing structures even after zoning regulations change. The attorneys of McBrayer can help identify potential properties with legal non-conforming uses for businesses and other organizations ready to expand in otherwise inconveniently-zoned areas.

Jacob C. WalbournJacob C. Walbourn is an associate in McBrayer’s Lexington office. Mr. Walbourn focuses his area of practice on planning and zoning law handling a wide variety of land use matters for clients in the private sector. His responsibilities include attending Planning Commission and Board of Adjustment hearings and working with developers, business owners, and government agencies on land use applications, zoning ordinance text amendments, comprehensive plan updates and other land use issues. He can be reached at jwalbourn@mmlk.com or (859) 231-8780, ext. 102.

Advertisements

Where the First Amendment and Land Use Meet: Planet Aid v. City of St. Johns

Generally speaking, land use regulations and zoning laws arise from practical and aesthetic concerns and considerations, and are driven by state and local law. However, sometimes a community’s desire to regulate a seemingly minor issue can implicate our most fundamental rights under the Constitution. Last month, we discussed the Supreme Court’s decision in Reed v. Town of Gilbert, which involved an analysis of the First Amendment’s applicability to local sign ordinances. Finding that restricting signage based on the content of the sign was impermissible under the First Amendment, the Supreme Court struck down Gilbert’s ordinance. Commentators have since described this as the “sleeper case” of the Supreme Court’s term, representing a substantial shift in First Amendment jurisprudence. The case has since been used to justify striking down local and state bans on political “robocalls” and panhandling, and could possibly extend to call in to question laws aimed at consumer protection and securities law. Indeed, Reed and the reaches of the First Amendment are currently in the forefront of controversies involving everything from soda labelling, to the rights of topless performers operating in Times Square.

However, the Supreme Court has not been the only Court to recently address the Constitutional implications of land use regulation. In April, prior the Supreme Court’s decision in Reed, the Sixth Circuit Court of Appeals (which includes Kentucky) reviewed an ordinance banning charitable donation bins as a public nuisance. Planet Aid, a nonprofit charity, placed outdoor donation bins on private property around the town of St. Johns, Michigan in an effort to solicit clothing donations. Believing that the bins constituted a nuisance, in that clutter and trash often collected around them, the City of St. Johns removed Planet Aid’s donation bins. Later, the city enacted an ordinance banning these unattended charitable bins. The Sixth Circuit, applying the same strict scrutiny standard subsequently applied in Reed, found that this ban of unattended charitable donation bins appears to be an impermissible content-based regulation of First Amendment-protected speech, and affirmed the District Court’s grant of a preliminary injunction.

Vertical image of the the first page of the US Bill or Rights on the American flagConsider that again for a moment: the Sixth Circuit has held that the mere presence of a standalone, outdoor, unattended donation bin implicates our rights of free speech and expression.

However, this conclusion is not as extreme as it may seem at first glance. The notion of charitable solicitations as speech is not new to First Amendment jurisprudence; as the Sixth Circuit pointed out in favor of upholding the injunction, it has a long history of protected status. In the Court’s view, even unattended donation bins inherently solicit and advocate for charitable causes, and thus are a form of speech. The court likened such bins to a person standing by the side of the road and holding a sign. The ordinance, the Court found, impermissibly attempted to regulate the content of its speech, as the ban applied only to charitable donation bins and not all varieties collection bins. Thus, bins with a charitable purpose were prohibited, where other bins, like recycling bins, would be free from restriction.

With hindsight, we can now see that the decision in Planet Aid tracks the same content-regulation rationale the Supreme Court espoused some two months later in Reed. These decisions should have state and local governments scrambling to review their regulations for potentially serious Constitutional defects. Cases like Reed and Planet Aid will likely have wide-ranging impacts on any variety of land use restrictions. Few laws survive “strict scrutiny” judicial review, and it appears that any regulation of any component of expression that regulates based on content will now be subject to that level of review. As such, even seemingly mundane land use restrictions must now be evaluated as potential infringements on some our most basic rights. The attorneys at McBrayer can assist local governments in reviewing their regulations for compliance with the brave new world of Reed and Planet Aid, working to bring regulations within acceptable Constitutional limits.

Jacob C. WalbournJacob C. Walbourn is an associate in McBrayer’s Lexington office. Mr. Walbourn focuses his area of practice on planning and zoning law handling a wide variety of land use matters for clients in the private sector. His responsibilities include attending Planning Commission and Board of Adjustment hearings and working with developers, business owners, and government agencies on land use applications, zoning ordinance text amendments, comprehensive plan updates and other land use issues. He can be reached at jwalbourn@mmlk.com or (859) 231-8780, ext. 102.

The Newest Sign for Some Sign Ordinances: Stop

Sign ordinances and regulations are a fixture of city and county zoning and land use regulations, designed to prevent unattractive clutter from obstructing the public view. In creating these regulations, however, local governments run the risk of infringing some of the most basic constitutional rights. Signs inherently include a component of speech, and regulation of the former may unintentionally interfere with the latter. The town of Gilbert, Arizona, learned this lesson the hard way in the recent U.S. Supreme Court decision of Reed v. Town of Gilbert.

a photo image of a business man's hand with a stop sign ** Note: Slight graininess, best at smaller sizes

Gilbert enacted a comprehensive sign code that governed the display of virtually all varieties of outdoor signs. This code divided the signs into several categories, such as “Temporary Directional Signs Relating to a Qualifying Event,” “Ideological Signs,” and “Political Signs.” A local community church lacked a permanent meeting space, so they would post signs on Saturday morning and remove them around noon on Sundays to direct the public to the location of their services for any given week. The town’s Sign Code compliance manager cited the church twice for exceeding the time limits (twelve hours) for displaying temporary directional signs. The church tried to ask the city for an accommodation, but was unsuccessful. The church was told that there would be no leniency under the code.

The Supreme Court, in a unanimous decision, held that the Gilbert’s sign ordinance was an impermissible content-based regulation of speech and did not survive strict scrutiny review. The court said that, “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”[1] The sign ordinance in effect in Gilbert literally created distinctions among signs based almost entirely of the content of the signs, creating separate rules for different classes of content. Any restrictions on signs depended entirely on the communicative content of the signs themselves, a step the court said went too far. It made no difference to the court that the sign code itself did not discriminate among viewpoints or that there was no evidence of differential treatment between differing viewpoints or discriminatory application of the code. The sign code in Gilbert made content distinctions on its face, and was therefore a violation of the First Amendment.

The actual impact of Reed is subject to substantial debate, even among the Supreme Court Justices themselves. While all the Justices agreed that Gilbert’s regulations went too far, the appropriate standard or review was a hotly debated topic. Justice Alito believes that the Court’s application of strict scrutiny review “will not prevent cities from regulating signs in a way that fully protects public safety and… legitimate esthetic objectives,”[2] but Justice Kagan theorizes that because of the harsh standard applied, the Supreme Court “may soon find itself a veritable Supreme Board of Sign Review.”[3]

What is clear from Reed is that any government entity with a sign code, ordinance, regulation or the like should study its outcome very carefully. Distinctions based upon the communicative content of the sign are now clearly impermissible after this case, and local governments would be well advised to review their sign regulations with a fine-toothed comb. The attorneys at McBrayer can assist with that process, keeping all land use ordinances, even sign regulations, compliant with changing areas of the law.

Jacob C. WalbournJacob C. Walbourn is an associate in McBrayer’s Lexington office. Mr. Walbourn focuses his area of practice on planning and zoning law handling a wide variety of land use matters for clients in the private sector. His responsibilities include attending Planning Commission and Board of Adjustment hearings and working with developers, business owners, and government agencies on land use applications, zoning ordinance text amendments, comprehensive plan updates and other land use issues. He can be reached at jwalbourn@mmlk.com or (859) 231-8780, ext. 102.

[1] Reed v. Town of Gilbert, 576 U.S.___(2015) at 6.

[2] Id. at 2 (Alito, J. concurring).

[3] Id. at 6 (Kagan, J. concurring).

The Role of the Comprehensive Plan in Land Use Planning

The comprehensive plan is the most important tool in land use planning. In its most basic function, it provides a roadmap for the development of a community’s most limited resource, the land itself. More than just a rigid set of directions, however, the comprehensive plan lays out a community’s vision for the future, providing guidance as to how the community will grow and thrive while striking an appropriate balance between competing uses.

Sketching Of Building Construction On Flying Book Over Urban SceA well-conceived comprehensive plan is mainly a policy instrument that creates a broad outline for how a community will achieve its goals with a view to an extended time horizon. In addition to the general role as a guide, however, a comprehensive plan will serve many purposes as an invaluable tool in a planner’s tool bag. For example, a comprehensive plan gives a community continuity and stability across administrations and agencies for addressing land use issues, preventing short-term changes and successive upheaval. This in turn provides predictability and stability for businesses, developers and others with interest in land use, encouraging growth and development free from uncertainty. The comprehensive plan further fosters economic development by providing valuable information for companies making location decisions. In addition to fostering growth, a comprehensive plan may also serve as a governor against unfocused growth or excessive sprawl, and may even encourage re-development in declining areas. The plan may also provide justification for zoning decisions.

A community can also create and express a sense of self through a comprehensive plan. Through a comprehensive plan, a community can decide how to use or protect local resources; preserve historic buildings or areas; create a certain community appearance in line with traditional community aesthetics and character; or foster certain facets of community life, such as the arts or sports teams. A comprehensive plan also speaks to parks, schools, police stations, libraries and other public resources, expressing a community’s plan for the overall wellbeing of its citizens. A well-constructed comprehensive plan includes a heavy public input element to best effectuate the desires of the community at large. Communities may also craft additional or supplementary plans to address specific goals, or to address unique areas of the community. In Lexington, for instance, a separate plan addresses the community’s goals with regard to rural land management.

In a basic sense, a comprehensive plan is also a technical blueprint for physical change. It can help a community anticipate infrastructure needs and increase the efficiency of development by coordinating improvements and directing growth. A comprehensive plan will also provide for development in an orderly manner, weighing and balancing competing private interests in land use. Top-down planning maximizes the most beneficial uses for the greatest number of individuals, as well as avoiding conflicts between land uses that can arise to the level of nuisances.

In Kentucky, a comprehensive plan is governed by KRS 100.187 and must contain at least a statement of goals and objectives, a land use plan, a transportation plan, a community facilities plan and provisions to accommodate any military installations of a certain size that may be included in or abutting the planning unit. KRS 100.197 requires a planning commission to amend or readopt the plan elements every five years.

In effect, a comprehensive plan is a community’s collective statement on what it would like to grow into and how it will accomplish that goal. It then guides the technical and regulatory process to create a system of development and resource allotment designed to fulfill a community’s sense of place.

If your community needs assistance in the creation, review or amendment of a comprehensive plan, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Jacob C. WalbournJacob C. Walbourn is an associate in McBrayer’s Lexington office. Mr. Walbourn focuses his area of practice on planning and zoning law handling a wide variety of land use matters for clients in the private sector. His responsibilities include attending Planning Commission and   Board of Adjustment hearings and working with developers, business owners, and government agencies on land use applications, zoning ordinance text amendments, comprehensive plan updates and other land use issues. He can be reached at jwalbourn@mmlk.com or (859) 231-8780, ext. 102.

What Does the Board of Adjustment Do?

In communities that have adopted zoning regulations, boards of adjustment serve as a relief valve that can allow for the use of property that is not otherwise permitted under the property’s specific zoning category . Boards of adjustment have the power to grant dimensional variances, which are deviations from the dimensional requirements of a zoning ordinance pertaining to height, width, location of structures, or setbacks. For example, if a property owner wants to build or extend a structure within the required side, front or rear yard, she can appeal to the board to request permission to build closer to the property line. Applicants for a variance must show a need for the variance and that they are not unnecessarily trying to circumvent the zoning regulations. An unusually shaped lot or other unique physical characteristics of the particular property that make it hard to comply with the setback or height requirements are typically justifications for a variance. In one Kentucky case, the appellate court found that it was appropriate to grant a variance to allow building a house closer to the street because there was a sinkhole in the rear yard that prevented building the house farther back. When a board grants a variance it must make certain statutorily required findings of fact. Variances run with the land, so subsequent owners acquire the benefit without further approvals.

Boards of adjustment also have the power to grant conditional uses. Conditional uses are those that are not allowed by right in the zone, but may be approved by the board if there is evidence that the use is suitable for the particular property. Typically, conditions are attached to a permit that ensures that the proposed use will be compatible with the area. For example, a conditional use permit that approves pilates or yoga classes in a private residential home may include conditions limiting the number of students or times of classes. A conditional use that allows live music, perhaps for a nightclub, may include limits on outdoor music or speakers.

Another function of boards of adjustment is to decide administrative appeals. For example, if a property owner applies for a building permit or a certificate of occupancy for a particular use and the permit is denied, the owner can appeal to the board on the basis that the official made an error or misinterpreted the law. The board has the power to overturn the building or zoning official’s decision and order the permit to be issued.   Another type of administrative appeal is when a property owner wants to change one type of legal nonconforming use to another . A legal nonconforming use is one that has been ongoing on the property and was once legal in that zoning category, but the zoning regulations subsequently changed to prohibit it.   In appeals that involve the changing nonconforming uses the board must determine that the new use is as intensive or less intensive than the previous use. If the change of use is approved the property owner does not need to obtain a zone change to engage in the proposed use.

Board of adjustment matters are considered due process proceedings.   Notice letters are sent to neighboring property owners, and they have a right to attend the hearing and speak. Many local regulations also require the posting of a sign to give notice of the hearing. A legal advertisement appears in the local newspaper as well. Because neighbors are given notice, it is always a good idea to talk to them in advance of the hearing to discuss any concerns they may have about the proposal prior to the hearing.

 

CWestover

 

Christine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

Check the Zoning Regulations Before Operating a Business Out of Your Home!

Modern technology and our ever-changing economy   are causing more people to consider starting up or basing their existing businesses from home.  Many communities have embraced this concept and have enacted zoning regulations that make it easier to do just that.  Some jurisdictions, however, still have regulations on their books that make operating a business from home a real challenge.  Regardless of where your community falls on this spectrum, it is important to know what the rules are before you start operating a business from your residence.  If you live in a community without any zoning regulations you can do just about anything you want to on your property but it is advisable to check to make sure there are no recorded restrictive covenants that limit or prohibit non-residential or commercial activities in the subdivision.  Assuming that there are zoning laws that apply to the property, or if you are uncertain whether your area is subject to zoning, the first step is to call the local government.  There are many different names for the division of government that may regulate such matters, such as building inspection, codes and permits, or the zoning office, but if you call the general city or county  number and explain what  you need to know, they will direct you to the right place.

Some communities allow home offices and home occupations, but limit the types of uses, square footage  of the non-residential use within the house, prohibit the use of accessory buildings for this purpose or limit employees to those who reside in the house. In some communities home occupations and home offices are permitted by right, but in others, such uses are allowed only as a conditional use that must be approved by the local board of adjustment after a public hearing, including notice to adjoining property owners.    There is also wide variety as to which uses are allowed as home occupations or home offices.  For example in some communities,   artists, music teachers and upholsterers  may  sell  their services or products  from  their residences, but  beauticians, yoga instructors   or caterers  may not.   Further, the type of home occupation permitted in a community can vary by the zone in which the property is located.  For example, in some places persons who live in a residence in an agricultural zone are permitted to engage in a wider range of home business activities than those in residential zones.

If you live in an area that allows home occupations as a conditional use, and your business activity fits within what is permitted by the regulations, you will need to complete and file an application that must be approved before you can start your home business. .   It is always a good idea to contact your neighbors prior to the hearing to inform them of your proposed activities.  It is always better to answer their questions or address their concerns before the public hearing. Boards of adjustment have the discretion to impose conditions on the operation of the use, and can deny the permit if the evidence shows that the use could be disruptive or out of character with the area.  Reaching out to the neighbors will go far in obtaining a favorable outcome.

If you live in a community that does not allow the proposed use in your home, do not despair.  Many local jurisdictions are coming around to the modern reality that business needs are changing. To retain and attract new residents they must move with the times and enact regulations that are more accommodating to the current economic environment.  The way to change the law is to talk to the local planning office and elected officials about enacting a zoning ordinance text amendment that would allow more flexibility in operating businesses from the home.

In addition to obtaining local zoning permits, many home-based businesses are subject to state or local health department regulations.  Child care operators, caterers, and bed and breakfast establishments, among other businesses,   must also comply with other applicable regulations.

CWestover

Christine Neal Westover is an attorney in the Lexington office of McBrayer . Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

This article is intended as a summary of  federal and state law and does not constitute legal advice.