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.

Use of Restrictive Covenants in the Zoning Process

Zoning categories and the uses that are allowable in each of them are subject to the possibility of amendment by the legislative body. This means that a property can apply to the planning authority to change his zoning designation or to add uses within that designation that are otherwise prohibited. However, many citizens incorrectly believe that zoning designations are permanent and that uses within each zoning category never change. When a neighboring property owner files to rezone property, asking to amend the zoning ordinance to add a new use to a particular category that is prohibited, the neighbors become alarmed at the potential change to their area. Although neighboring property owners have a right to attend hearings and object to the proposed changes, they have no final say or authority as to whether the governmental body approves it. This can lead to zoning battles.

Sometimes zone change applicants will offer to impose restrictive covenants on the property they are seeking to rezone in order to address neighbor concerns. Restrictive covenants, when recorded and enforceable by the neighbors, are a powerful way to protect property from zoning changes that otherwise the neighbors would consider too intensive or inappropriate.

Sketching Of Building Construction On Flying Book Over Urban SceRestrictive covenants are restrictions on land use that are recorded in the county clerk’s office. Restrictions run with the land and last for a term of years, often in 10 or 20 years renewable terms. They typically spell out who has the power to enforce them and how they are to be enforced. In general, restrictive covenants cannot be removed or modified without the written consent of the party who has the power to enforce them. Restrictive covenants can control issues that generally go beyond the reach of the government to regulate in the zoning process, for example architectural and design features, restricting certain uses or agreeing to preserve certain natural features.

Many governments do not enforce restrictive covenants of this nature because they are rightly considered private agreements. However, restrictive covenants can be a valuable tool to assuage opposition to zoning amendments if the proponent is willing to live with some restrictions on his property in order to reduce neighborhood objection to his proposal and thereby increase the chances the planning body will approve the zoning amendment.

CWestoverChristine 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.

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.

Inverse Condemnation

Inverse condemnation is a far more complex subject than it may seem at the outset. While condemnation proceedings are initiated by the government to acquire property and pay the owner just compensation, the general rule regarding inverse condemnation is that the owner of the property, and not a government entity, seeks to recover damages for a loss in value of the property as a result of governmental action. There are several avenues from which this type of action can arise, as there are multiple ways property can be affected by government activity. Rather than there being a cut and dried standard for what inverse condemnation looks like, each case involving it arises is based on a set of unique factual circumstances.

Inverse condemnation cases generally are initiated when a property owner sues a governmental entity because some action taken by that entity causes a profoundly negative impact on the property. For instance, a governmental restriction on certain types of development can effectively render certain property worthless. This can substantially damage owners who may have longstanding plans to develop the property, because it deprives them of economically-viable use of the property. Such conduct on the part of the government can be considered a de facto “taking” of the property under the Fifth Amendment, even if the government does not actually condemn or take possession of the property. A forced transfer of ownership is not necessary, and indeed one of the hallmarks of inverse condemnation is that the government usually does not take possession of the property permanently.

Yellow Cut truck on the highway construction in front of airport

While the suit in an inverse condemnation case generally begins with the property owner, this is not always the case. In the 2010 Kentucky case of Baston v. Kenton County Airport Board, for instance, the makings of inverse condemnation arose during proceedings in a condemnation suit brought by the Airport Board for Mrs. Baston’s long held property. The Airport Board attempted to buy Mrs. Baston’s property in 1995 as part of a “noise mitigation” effort, which she declined. In 1997, the Airport Board announced its intention to condemn the property for construction of a new runway. The project wasn’t approved until 2001, however, and Mrs. Baston was not required to turn the property over to the Airport Board until 2003. The condemnation proceedings began in 2005. At issue in Baston was the value of the property being condemned, and the novelty here is that Mrs. Baston’s position was that the property was inversely condemned before the actual condemnation, as announcement and widespread knowledge of the Airport Board project stifled development on property that would be acquired by the Board, depressing the fair market value. It’s a subtle argument, but one ultimately upheld by the Kentucky Supreme Court. The actions of the Airport Board had a profound effect on the value of the property prior to condemnation, so the fair market value of the property at the time of the taking did not reflect the full extent of the effect of the taking.

Zoning regulations that control uses, setbacks and similar matter are sometimes challenged under a regulatory takings claim, but such efforts do not generally succeed. The standard of review that courts use to determine the validity of such regulations is a high hurdle for those claiming a taking, especially because the one claiming the violation has the burden of proof to show harm. Courts will uphold the regulation if the regulation is shown to be rationally related to a legitimate government interest. If such a nexus is present Courts will not find a taking, and the regulation will be upheld as a legitimate exercise of governmental power.

If you believe government action has substantially changed the value or nature of your property, contact the attorneys at McBrayer to help determine if an inverse condemnation action is necessary.

CWestoverChristine 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.

Infill and Adaptive Reuse – Is It Right For My Project?

Fewer words in the context of land use planning come with as negative a connotation as “sprawl.” There’s a good reason for this, as the term denotes a move outwards from the heart of a city, pushing communities further apart into low density suburbs while the core of the area falls into decay. Sprawl has been cited as the cause for everything from environmental damage to community segregation, with inherently negative consequences for cities that fail to plan for sustainable growth. To combat sprawl, however, communities have turned to creative and innovative revitalization efforts such as infill and adaptive reuse as a way to slow the outward push and revitalize existing residential, commercial and even industrial spaces.

A track hoe excavator using its claw thumb to tear down an old hotel to make way for a new commercial development

Infill is the process of identifying sites within existing and developed areas that are either vacant, or can be cleared and redeveloped with new projects. The benefits of an infill project to a community can be substantial: it reduces vacant or blighted land, typically utilizes already existing community infrastructure like roads and sewers, and can reinvigorate growth in stagnant or declining areas. Because of this, many communities encourage infill development by streamlining the process to obtain the approvals necessary to start building, reducing application fees, or providing tax incentives to developers.

Likewise, adaptive reuse projects have also become very popular. Adaptive reuse, in a nutshell, involves recycling an existing building to use it for a purpose other than for which it was built. Vacated warehouses and industrial spaces can find new life as entertainment complexes and craft distilleries and breweries, for example. This highly innovative form of development preserves existing structures and minimizes the new resources required for construction. Adaptive reuse can be highly valuable in areas where historic preservation and community character are paramount, allowing the character of the buildings to guide development, rather than merely the location of the property. Neighbors may be more accepting of adaptive reuse (as opposed to infill or new development) because it preserves the look and feel of their current neighborhood while encouraging growth and reducing vacant and deteriorating structures.

While infill and adaptive reuse can offer exciting and unique opportunities, developers should be conscious of the risks and costs potentially associated with these strategies. Though infill does allow existing infrastructure to be utilized, there needs to be a determination whether this infrastructure can handle uses likely never contemplated when it was installed. Similarly, before starting an adaptive reuse project, developers need to truly evaluate the costs and benefits of such a project. Renovation and rehabilitation costs may exceed the expense of new building, or environmental contamination may prove too high a barrier. Buildings designed without regard for energy conservation may pose a problem for energy-conscious developers as well.

It is also crucial for communities to develop responsible infill and adaptive reuse policies. Unregulated infill policies can alter the character of neighborhoods, can see historic structures destroyed or inexorably altered, and may even displace residents. A neighborhood may delighted to hear that a vacant, unkempt parcel is going to be developed, only to later decry the used car lot built on the property that floods their homes with lights used to highlight the inventory at night. Adaptive reuse can also pose problems, as reused facilities may incorporate uses never envisioned when the property was originally developed. These new uses may negatively impact traffic and parking, and may require communities to upgrade infrastructure sooner than planned.

Infill and adaptive reuse are valuable tools for both developers and communities – but as with any tool, these may not always be the correct choices for the job at hand. Both methods can strengthen the core of a city while preventing sprawl, but the costs and benefits to both communities and developers must be evaluated before undertaking such a project. Responsible policies should be adopted by cities in accord with their comprehensive vision for the community. Developers may find that community inducements make infill development attractive, but should consider whether the benefits offered outweigh the costs associated, and whether these types of development are right for their project.

So, is infill development or adaptive reuse right for your project? For more information on the costs and benefits of these development strategies for your specific project, contact the attorneys at 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.

Subdividing Land

When we think of subdivisions, we generally think of large housing estates with a house on each lot, but technically the subdivision of land means the creation of saleable lots by splitting a tract into smaller parcels. In communities that have adopted land use regulations, the subdivision of property is typically handled by submitting a subdivision plat to the planning commission in the jurisdiction where the property is located. The subdivision of land is considered a ministerial matter. This means that if the proposal meets the minimum requirements of the zone in which it is located, the planning commission must approve it. Unlike rezoning of property, which requires notice to surrounding property owners and a full due process hearing, a subdivision plat does not trigger notice and hearing procedures. Typically all that is required is submission of a subdivision plat that meets the minimum requirements set out in the zoning ordinance and land subdivision regulations as well as the payment of a processing fee. Under Kentucky law, the planning jurisdiction has the power to assign the review and approval of subdivision plats to a staff person. After a plat is approved, it is recorded in the county clerks’ office. A recorded subdivision plat creates the new lots. No new lot can be sold until after the subdivision plat is recorded.

Shrinking FarmlandThe fact that approving subdivision plats is ministerial and that neighbors do not receive actual notice that the plat is under review does not prevent neighborhood opposition in some cases. For example, in many older neighborhoods, the lots are much larger than the minimum lot size for underlying zoning classification. The owners of such properties sometimes submit a plat to subdivide their property to create a new lot of record in what has been their side yard. Often, neighboring owners are opposed to such a subdivision because it adds more density and changes the streetscape and overall look or character of their neighborhood. However, in Kentucky, the case law makes clear that the planning commission cannot disapprove the plat based on any of those arguments, nor can it use comprehensive plan recommendations as a basis to deny the plat. The sole criterion is whether the plat meets the minimum dimensional requirements of the underlying zone.

The division of land for agricultural purposes is not included within the definition of a subdivision under Kentucky law. The owner of land that is intended to be used as for agricultural purposes, as defined in state statute, does not typically go through the subdivision plat approval process and can be accomplished merely by dividing the property by deed. Occasionally this can create problems for subsequent owners or zoning enforcement officials if the new owner or his successor applies for a building permit to construct a house on the property, because under state law such a structure must be used for persons engaged in agriculture. Making the determination that a person is engaged in agriculture on the property can be difficult.

If you need help in subdividing your property, or if you are facing problems with your property due to a past subdivision of agricultural land, consult the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

CWestoverChristine 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.

The Rise of Agritourism & Important Considerations

Agritourism is becoming an increasingly popular way for rural property owners to earn additional income from agricultural properties.   In additional to more traditional farm tours and seasonal activities such as hay rides, corn mazes and u-pick fruits, farm owners are devising new ways to bring people to their door by offering more entertainment-oriented activities. Some farmers are offering their barns as venues for weddings, parties, dances and other special events.  Others are opening their homes to visitors for vacations so guests can experience life on a working farm by helping out with routine farm chores such as feeding or herding the livestock, milking the animals, making cheese, collecting eggs, picking vegetables and preparing farm fresh meals.   This may sound simple and easy to accomplish but often those who want to offer agritourism activities on their rural properties are blindsided when they run in to unanticipated difficulties with regulatory authorities over building code, fire code or zoning issues.

In general, barns used for agricultural purposes are exempt from state building codes. Converting them to a rustic setting for special events can change the classification and necessitate often expensive retrofitting of the structure to make it safe for public assembly. The renovations may include fire separation walls, sprinklers, new water lines, larger septic systems, code compliant bathrooms and other improvements. Not only can these be expensive, they can diminish the rustic look that some people are looking for when they select an event site.

In addition to building code issues, using agricultural properties for special events, farm stays, corn mazes, serving farm raised meals, wineries with associated entertainment and other types of agritourism typically requires special permits from the local zoning authorities, such as a conditional use permit, that trigger the need for a hearing and notice to neighbors in the notification area. It is important to check with the local zoning authorities about whether such permits are required before opening for business. Regardless of whether special zoning permits are required, consideration must be given to the impact of the use on other properties in the area and address potential issues before they become a problem. For example, limiting the number of events could reduce neighborhood safety concerns about too much traffic on an unlit, narrow country road. Not allowing outdoor amplified music or requiring music to cease after a certain time would go a long way to prevent neighborhood complaints that the use adversely impacts the rural quality of the area.

A Hay Ride Returns From A Pumpkin Patch

Agrituourism has tremendous potential to provide an alternative source of income for rural property owners and can boost tourism in many areas that do not have the more urban type of activities that attract people to the area. But it is important to fully investigate local and state codes and regulations, as well as anticipate neighborhood concerns before starting up the new business.

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.