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Home My WebLink About1.0 ApplicationJanuary 24, 1995 John Wilson Bershenyi 2833 County Road 117 Glenwood Springs, CO 81601 GARFIELD COUNTY BUILDING AND PLANNING RE: Board of Adjustment Hearing Dear Mr. Bershenyi: Please consider this letter to be official notification that on November 28, 1994, the Garfield County Board of Adjustment approved your appeal of a staff interpretation that a mo vile home once placed on the property could not be replaced due to it no longer qualifying as a nonconforming use as a result of the use being abandoned. Staff's interpretation was overturned by the Garfield County Board of Adjustment. I apologize for the delay in sending you this letter, but we are finally getting caught up. If you have any questions, feel free to contact this office. Sincerely, Stella M. Archuleta Secretary to the Garfield County Board of Adjustment SAisa 109 8th STREET, SUITE 303 • 945-82121625-55711285-7972 . GLENWOOD SPRINGS, COLORADO 81601 REQUEST: APPLICANT: •• • PROJECT INFORMATION AND STAFF COMMENTS Request for an appeal of a staff interpretation of "abandonment" of a nonconforming use John Wilson Bershenyi I. DESCRIPTION OF THE PROPOSAL A. Site Description: The applicant's ranch is located approximately 112 mile southwest of Glenwood Springs, off of C.R.114. The ranch is split by the County road, with the primary residences located on the north side of the road and the barn and other associated building located on the south side of the road. B. Request: The applicant is requesting an appeal of a staff interpretation that a mobile home once placed on the property could not be replaced, due to it no longer qualifying as a nonconforming use as a result of the use being abandoned. Prior to 1972, there was a mobile home on the property used by a ranch hand. Since that timethere has been no mobile homes placed on the site, but all utilities are still in place. The applicant has stated that he never intended to abandon the right to replace the mobile home with another.(See letter p'g.~ II. MAJOR ISSUES AND CONCERNS 1. Zonina: The Zoning Resolution defines "abandonment" of a nonconforming use as follows: "Whenever nonconforming use of a building or land has been discontinued for a period of six(6)months, future use of the land or building shall be in conformity with the provisions of this Resolution." This definition has been in place since the 1973 Zoning Resolution was adopted. 2. Section 9.04 01 states that an individual aggrieved by their inability to obtain a permit an interpretation of the zoning resolution by staff, may appeal that interpretation to the Board of Adjustment. The Board may reverse any order, requirement, decision or determination of any administrative official by the concurring vote of four(4) members of the Board. -,_ • • • 3. The Courts have established the test for abandonment of a nonconforming use is two-fold:(l)whether there is a prolonged period ofnonuse of the property; and(2)whether there is an intent to abandon the use and the vested rights therein. In this case, there has not been a mobile home placed on the property with a building permit since 1972. On the other hand, the applicant has never removed the utility connections from the site that the last mobile home was placed. Any new unit going onto this site would have to replace the individual sewage disposal system, due to dilapidation and new standards. III. SJ !GGESTED FINDINGS 1. That the request for an interpretation was made in a timely manner and consistent with the requirement of Section 9.04 of the Garfield County Zoning Resolution of 1978, as amended; and 2. That the public meeting before the Zoning Board of Adjustment was extensive and complete, that all facts, matters and issues were submitted and that all interested parties were heard at the meeting; and 3. That such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the General Plan or this Resolution; IV. RECOMMENDATION The Board needs to determine whether or not the mobile home that existed prior to 1972 was removed from its location with the intent not to ever replace it. If the Board determines that the mobile home was removed, but there was no intention to abandon the right to replace it, then the staff's interpretation would be overturned. If the Board feels that the mobile home was removed without any intent to replace, then the decision would be to uphold the staff's interpretation. --. • • 0 f. 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' • • § 41.03(6] ZoN1No AND LAND UsE CONTROLS 41-128 ,, ..... or discontinuance of a use is relevant evidence .to show the existence of such intent.••• Moreover, as point(:d out by New York's highest court, because abandonment requires intent, there must be a complete cessation of the owner's nonconforming use. Accordingly, the court unanimously held that it was erroneous for a village to have rejected a permit on the grounds of an alleged to prevent use as an industrial bakery; and plaintiffs stated that neither they nor their parents before them had any intention to abandon such use). Evidence of Nonabandonment: It has been held that a limited continuation of a nonconforming use of property to maintain its nonconforming status is evidence of intent not to abandon such use. See Hilltown Township v. Horn, 13 Pa. Commw. 248, 320 A.2d 153 (1974), rev'd on other grounds, 461 Pa. 745, 337 A.2d 858 (1975). Cf Miorelli v. Zoning Hearing Board of Hazelton, 30 Pa. Commw. 330, 373 A.2d 1158 (1977) (court found no limited continua- tion of nonconforming uses of building as gas station and garage and use of lot as a used car lot so as to rebut presumption under ordinance that there was intention to abandon such uses). The requisite inient refers to that of the parties who were owners as of the date of the rezoning. See In re Concerned Citizens ofMontauk, Inc. v. Lester, 62 A.D.2d 171, 404 N.Y.S.2d 360 (2d Dept. 1978) (intent of present owners who were merely mortgages of the property at the date of the rezoning was immaterial; previous owner could show intent by evidence that it intended to preserve premise as a restaurant, bar and motel, but was prevented from / doing so by factors such as inability to procure a willing tenant or other · substantial impediment over which it had no control) . •••See A. T. & G. Inc., v. Zoning Board of Review, 113 R.I. 458, 322 A.2d 294, 297 (1974). See also: Colorado: Carper v. City & County of Denver, 36 Colo. App. 118, 536 P:2d 874, 879 (1975) ("While there is no immutable rule as to what constitutes sufficient evidence of abandonment, there must be some showing of intent to abandon"). ' Kentucky: Holloway Ready Mix Co. v. Montfort, 474 S.W.2d 80 (Ky. 1971) (evidence showing that property zoned industrial had not been subjected to a nonconforming use as a quarry for ten years when concrete mixing company applied for permit to construct mixing plant showed intent to abandon such use). Michigan: Rudnick v. Mayers, 387 Mich. 379, 196 N.W.2d 770 (1972) (while intention to abandon a nonconforming use can be inferred, facts which would support this inference must be established). Pennsylvania: Tscheschlog v. Board of Sup'rs of Tinicum Township, 489 A.2d 958 (Pa. Commw. Ct. 1985); Borough of West Mifflin v. Zoning Hearing Board of West Mifflin, 3 Pa. Commw. 485, 284 A.2d 320, 57 ALR3d 271 (1971). (M1uhcw Bender & Co .. Inc.) (Rcl.32-2191 Pub.84S) . ' ') i.:i.::1 " : ;. ,, ' I . '; i ·i • • § 41.03(6) ZoNINO AND LAND USE CoNTROLS -' 41-126 .... ' •• -' :·.0.: .,_ requisite intent to abandon a nonconforming use pould.'not have been formulated.117 ; :;' Generally, abandonment of a use is more than the temporary cessation of operations or even their prolonged discontinuance. For example, a New York appellate court upheld the finding of a zoning board of appeals that a nonconforming use had not been abandoned, based solely on evidence that there had never been a complete cessation of the use.us Similarly, the Rhode Island Supreme Court unanimously found that it was reversible error to have found an abandonment of a lawful nonconforming use which had attached to the property in 1965 when the property was designated as residentially limited. The court noted that the mere discontinuation of a nonconforming use for a length of time does not automatically render it an abandonment. Abandon- ment, the court stated, requires proof of intent to abandon and some type of affirmative action or failure to act which leads to the conclusion that the owner does not claim nor retain any interest in the use". Consequently, involuntary acts, such as fires or financial reverses, do not prove the required intent to abandon. The court pointed out that in the case before it, the owners had struggled to retain their use, notwithstanding the illness and death of one of the owhers as well as fire and financial hardships; thus, they had clearly not abandoned their use.1•• In general, the test for determining abandonment of a noncon- forming use is two-fold: one, whether there is a prolonged period · · of nonuse of the property, and two, whether there is an intent I <) ·~-;.~ I ' I• I I' ' I ! 1· I ;·'' ,. '' ·, ' ' 1',' ; : _to abandon the use and the vested rights therein.10•_The cessation _ : ,, , :·-.. _." (Text continued on page 41-128) 1-.· ;•. J 117 Maguire v. City of Charleston, 271 S.C. 447, 247 S.E.2d 817 (1978). 1 \ \ .ti-.'.. i'( J HI Merrick Gables.Ass'n v. Fields, 143 A.D.2d 117, 531 N.Y.S 2d 581 · :'..;,/ "" ·:\')' .;'.i:: .. ·:: (1988). :{s .··· >-) .•·1•~I.' 'j 19~·~.Washington Arcade v. Zoning Board of Review, 528 A.2d 736 (R.I. !f{, ', :_,;."·; .~ i ' " ~~:'iii ·j[~g§E~fg~;;_~ I~~~;; '•.,:[11[·~.:;.·,· •... • F( a permitted nonconforming use, evidenced by an overt act or a failure to ~:-:, ~:1 i'!. ·~! ~ct sufficient to ~upport an implication of such in~nt .... In mostjurisdic; ~J f:< : !.::~ ', , ,1 11 bOnS the cessation or discontinuance Of a USC IS merely evidence that IS '--r''t I .·~;1_.1 '•'~ ,-• •1:r relevant to the issue of the existence of an intent. "[T]he decisive test is '--1.·1'11 · ''/ l·~·-"' 11 1\ "'\'~I'''; ;,~(:' ';if!: (MonhowDeod.,&Co,lool (Rolll-2191 P•b845) /A'.~]'I/'~ i~:'.;,i ~::_: ·'"·;··", ," ' .,f'.·.j: ·'"1i"' '•'1 i' > · -· ~·'t\ "-1: fi!'·1 f · ··: '/~ ,· .,n ·, .. 1 .... :.,!·",~il·.··.·.:~-,'\1l:~~l11~r 11 'i·· [!1i,'l 1 1 il',11 ·l ;;1~ 'i~r 1t",i' ·1r)'1 11 ((~rl'~'~1",,1·. ''f!1 '"'•11 .1 11or'i''1" "~ ('~~:.' "~111~·~ 1.'·;~ 1;•1,1: f·-r.. 1'l1:•fr~.i/11 u! .wi1l1•"c l .i .:~. 1,~ ~lll~'n, 11 ,ril 1,,u1l11 :'.~n \~·~I •1"~1 •. ,1 ~ 11~ I 11 µ.1q: J ,•\·11 · '/1. I " 1::.1i!-· u' 1rcilj! ~· 't ·~'li ' I' I ,,' ~1'l i I I j In !I' I t' f ·11 1' '' h 'I' 11 :1··11 ' . ·111.1 r~r ,11,J'1 1 1 11.11~··1n1.·il' 1:1·ij'. 1 11,1 • ~·11H;· .,11 1· ,11·1·,i;·r· 1M 1 ,:;~ ·' 11 1 ;. : 1, 1 1,' 111 1 , ~ 1'rt!i ) '-~ 1\ , :1· ,, 1 1 i 1 1, I 1 •• 111 .u : r "''I ~' 1! ~,1 "j'1, ,:•·' I I 1 •1 1 ; I' ii .1:·,1-~i ,:! ,., :.1, ,, •1 ,,111 ~.u i:· ! 1111i111, 11, ,1~"· i,·1 I '11 ir: ·{~ '1'1 '1, ~ ,,1·11111·1, ,1,111 i~' I ·1''1· ' , i: i 11111 ! H •' I' I' ,j ~ 1•1 11 1 !~ ~1·, I· 1·1 ·1·1111 ·:111, I 1~ 'I 11 ' " ;1,1··1,···1 11~!~'1f,'11, '•,, tp1 '1111· '1·1 i' ··,.[1 i.'1,li IU' J~')i~~· 11·.:,1' i·i11111·~f·1,r:l 1,1!~111·:+·."·:11111~.1 1i1:~11111,111111," i.j~}}1 i:~ ·'1'' "11l1 : ':'' ·1 · ~ I I• ' I ' I ' ~ , , H '• ~ii ' ' I I ' I I ~ I ' ' ~ t ""1 ~ 11.i I· I ' ' lli' 'I f, ' ' • f .:'~1i:"1i~ .111: I ~ll rli1'rll11111,'·i~~i : 1':llli•,l!1 ~1:111111':[!1 11· I! l,i!11:11 11i:11 !11!'1ij,,: rl,, 1i1t:··:~-,··:·~11'111Jt[i1:1j1,1·:·:;1:1l·~/1~ I\,' f1'•'t ,iit ,,-+ .. • .,,1, J '"' ~ ·W;l 1' ;i.«11 I'· " l ,. , ·''I ·11 'r ,, 11~ . !' •'··i· 11' ,.,,. , ~I ,,, ., "11 "ii '' J.~] ~ 11~ I' 1 •f l1 1,11• ~ l'I ' ~ ,.,! ~'''.I' '1 1 • kt~ 1~~ 1 .,ff ' ! ;~,t.!~ ',,1 tr~ I J:l·r~ l·':1: ,1\~1"1l'r 1,1;·,1 llij·: ·!1W11: 1: f111l1 l11.\lti:r~ in r·1·1f~~.:l1• :11:1 ,:r11! ,1•!l1111:~1'1r·~l~ILl1~ h•I t•,j ; I , i ·' , ~ ' , ~ 11 ~I , i , t ! J n ~ l I ~ I j .. , , 1' r. \ i ~ I , I l : i i, ~ .. ~ "'" • ~ • 1 \ ' :\' i ~ ,1 , I t ~. ~ ) ~ ; . , ·1 ; ~ , •• ;., , 3·1/1~ '.i:·1·.1~,J1.J!:···11.;1:!t·i ~~~~.:~1~1~1!:~ '~.l~:.ii~. ·~1~~:11,i:~.n;,~u1:,Qi.~1~11.i,,l ... 1~E~·~~l~·~l1.1·,1~~.1·;11;·1 ".f _\ 'I ·'·I ,• 'l 1 ·,, 1 ;, 'I . ,, '';. ... ! ;',-• l 1 :-·1 • ' ' :• ( I." 41-127 NONCONFORMING USES § 41.03(6] whether the circumstances surrounding such cessation of use are indicative of an intention to abandon the use and the vested rights therein." (Court's emphasis) See also: Colorado: Carper v. City & County of Denver, 36 Colo. App. 118, 536 P.2d 874 (1975), modified, 191 Colo. 252, 552 P:2d 13 (1976) (while there is no immutable rule as to what constitutes sufficient evidence of abandonment of a nonconforming use, there must be some showing of intent to abandon). Delaware: Sutton v. Board of Adj. of Wilmington, 200 A.2d 835 (Del. 1962). Florida: Lewis v. City of Atlantic Beach, 467 So. 2d 751 (Fla. Dist. Ct. App. 1985) (abandonment requires a finding that the owner intentionally and voluntarily ceased a further nonconforming use of the property; a temporary cessation of a nonconforming use, or a temporary vacancy of a building used for the nonconforming use, is insufficient to effect abandonment). Maryland: Vogl v. Baltimore, 228 Md. 283, 179 A.2d 69.3 (1962). Massachusetts: Medford v. Marinucci Bros & Co., 344 Mass. SO, 181 N.E.2d 584 (1962) (railroad could not be deemed to have abandoned a nonconforming use in regard to existence of line in certain area where it never sought or ,received certificate of abandonment from Interstate Commerce Commission 'and there was no intent to abandon). New Jersey: Borough of Saddle River v. Bobinski, 108 N.J. Super 6, 259 A.2d 727 (1969). New York: Deyo v. Hagen, 41 A.D.2d 790, 341N.Y.S.2d".l28,332 (3d Dept. 1973) (a protracted period of disuse, unaccompanied by circumstances which belie intent to abandon, may be regarded as an abandonment); Matter of Putnam Armonk v. Town of Southeast, 52 A;D.2d 10, 382 N.Y.S.2d 538(2d Dept. 1976). Oregon: Polk County v. Martin, 292 Or. 69, 636 P.2d 952 (1981) (since there was no interruption of the operation ofa nonconforming quarry, as rock was continuously stockpiled on the land sales were made,,from time to time, and periodic quarrying and crushing of rock occurred, there was no showing of abandonment). Pennsylvania: Borough of West Miffiin v. Zoning Hearing Board of West Miffiiii, 3 Pa. Commw. 485, 284 A.2d 320, 57 ALR3d 271 (1971). Rhode Island: M.B.T. Constr. Corp. v. Edwards, 528 A.2d 336 (R.I. 1987) (nonconforming use not deemed abandoned by proof of passage of time only); South County Sand & Gravel Co. v. Town of Charlestown, 446 A.2d 1045 (R.I. 1982) (a nonconforming mining operation was held not abandoned merely because the amount of use for a ten-year period was insubstantial and the owner had conCl'ded that his dominant purpose for removing gravel was to keep the. site active in the absence of any evidence that the owner had intended to abandon); Richards v. Zoning Board of Review of Providence, 100 R.I. Z!~ 2f3 A.2d 814 (1965) (no intention to abandon industrial bakery found where oveq was still on premises; premises had not been altered so as (~llhcw bender & Co .. Inc.) (Rcl.32-2191 Pub.843') i 1· !'. ·'.·''.} ,, " !.,.~ ,. i'. !".·· " +.~ 'r' I " 41-125 NONCONFORMING USES § 41.03(6j to use premises for a nonconforming use as was vested in the prior lessor or tenant.'"" However, it has been held that a subsequent purchaser cannot assert his predecessor's mental incompetency to contend that the See also: lllinois: Builders Supply & Lumber Co. v. Village of Hillside, 26 Ill. App. 2d 458, 168 N.E.2d 80 I (1960) (one succeeding to title of property through foreclosure sale succeeds to right of owner to continue a nonconforming use of the property). Montana: Watts v. Helena, IS Mont. 138, 439 P.2d 767 (1968) (right to continue nonconforming use passes to subsequent purchasers). New Jersey: Beers v. Board of Adj. of Wayne Township, 75 N.J. Super 305, 183 A.2d 130 (1962). '""See, e.g .. Dube v. Allman, 333 Ill. App. 538, 77 N.E.2d 855, 856 (1948). Cf Marchese v. Norristown Borough Zoning Board of Adj., 2 Pa. Commw. 84, 277 A.2d 176 (1971). The court found that the own~r of nonconforming use would be presumed under a zoning ordinance to have abandoned the use because of the expiration of a one year period of discontinuance despite a leasing of the premises to a tenant. The court stated in pertinent part that: The right to continue a nonconforming use, once established and not abandoned, runs with the land and this right is not confined to any one individual or corporation. Eitnier v. Kreitz Corp., 404' Pa. 406, 412, 172 A.2d 320, 323 (1961 ). However, where a lessee is a tenant in name only, and the tenancy agreement in effect is a "hollow" lease, the mere existence of the lease without substance should not be heard to toll the running of the one-year limitation period and to freeze the ·nonconforming use indefi- nitely. Otherwise, in contradiction to the established objective of zoning to reduce nonconforming uses to conformity as speedily as possible in a constitutional manner, a straw man lease arrangemCnt could unjustly and indefinitely prolong the life ofa nonconforming use by.means ofa ploy-the landlord claiming no intention to abandon ad infinitum, and the tenant failing in point of fact to use the nonconforming use ad nocumentum. A hollow lease can also occur, as here, where a permissible nonconforming use is changed to an impermissible nonconforming use under a lease agreement, the landlord collects the rent payments without regard to whether the tenant is continuing the permissible nonconforming use, and the tenant in fact has discontinued even the impermissible nonconforming use and has permitted the building or use to be so dormant as to indicate abandonment. In such cases, the one-year limitation period should run, and the presumptiOQ of intent to abandon should arise after the expiration Of one year. . ). · ; · 277 A.2d at' 1s4: For a disOu·sSion ~f ordinances imposing a time limitation on the right to resume a nonconforming use, see § 41.03[6][1] and notes thereto, infra. (Mauhcw lkndcr &. Co .. Inc.) (Rel.32-2191 Pub.B4S) ;.• ' ,,:•1 .,, • • § 41.03(61 ZoNING AND LAND UsE CONTROLS ; . 41-124 ' ....... . over four years could not subsequently be reestabli~hed. In this case, the ordinance governing permitted uses f)rqvided for the establishment of recreational facilities but prohibited commercial amusements. The defendant's lake had been operated as a com- mercial recreation area but had been used for some time by the defendant's family for recreational purposes while the defendant recovered from a stroke. The court held that despite the fact that the nature of the area had not been changed, the nonconforming use had been abandoned and could not be reestablished because zoning ordinances are construed against the indefinite continua- tion of a nonconforming use.us A transfer or change of owner- ship, however, is not an abandonment of the right to a noncon- forming use.11• Thus, a nonconforming use may be transferred to a successor in title.'"• Similarly, a lessee has the same right 101 Forsyth County v. Shelton, 74 N.C. App. 674, 329 S.E.2d 730 (1985). ,.. See, e.g .. People v. Park Ridge, 110 Ill. App. 2d 404, 249 N.E.2d 681 (1969). Plaintiff's predecessors, whose use of property was a legal nonconform- ing use, filed bankruptcy and ceased use of the premises as a restaurant. There was no abandonment of the nonconforming use where plaintiffs acquired the property and shortly thereafter applied for a restaurant remodeling permit.. See also: Ohio: Akron v. Klein, 171 Ohio St. 207, 168 N.E.2d 564 (1960). Rhode Island: South County Sand & Gravel Co. v. Town of Charlestown, 446 A.2d 1045 (R.I. 1982). Utah: Gibbons & Reed Co. v. North Salt Lake City, 19 Utah 2d 329, 431 P.2d 559, 564 (1967) ("lawful existing nonconforming uses are not eradicated by a mere change of ownership"). · The right to a nonconforming use has been said to ."run with the land." See, e.g .. Eitner v. Kreitz Corp., 404 Pa. 406, 172 A.2d 320 (1961). The court stated in pertinent part (172 A.2d at 323): The fact that the nonconforming use was carried on by a tenant and that it is now contemplated to lease the land to a new tenant is not controlling. The right to continue the nonconforming use, once established and not abandoned, runs with the land and this right is not confined to any one individual or corporation. A vested right, unless abandoned, to continue the nonconforming use is in the land. 101 See, e.g .. Village of Brookville, v. Paulgene Realty Corp., 24 Misc. 2d 790, 200 N.Y.S.2d 126, 133 (1960), qff'd, 14 A.D.2d 578, 218 N.Y.S.2d 264 (1961) (zoning amendment could not curtail right to operate a school where defendant has an established preexisting nonconforming use when it was passed and defendant's predecessor in title had been duly issued a certificate of occupancy by the plaintiff village permitting use of plaintiff's present buildings as a "school and summer school"). (M111hcw Bender & Co., Inc.) (Rel.32-2191 Pub.845) I ·.':.'.i'J· I. ... ,..;;;:;.,9 "',' .. '.' ... :.·J 'I' I':·• < ... w.;. '. i'I: ! '. lil :. ,' ' ;( i.:', l:I •• ,, ,, ~ . :: .... · '' ,~· i j ' i I ,. i,: . '!. ··' ':' ' ,. i I I ' ! I 611-- ··.F. ":'•. .. 41-123 NONCONFORMING USES § 41.03(6[ A nonconforming use ceases to be valid after abandonment and cannot subsequently be reestablished by the property owner where such use is otherwise prohibited.'"• Thus, a North Carolina appellate court ruled that a nonconforming use abandoned for interruption or abandonment, unless resumed use conformed to requirements of local ordinances); Dither v. Baker Rock Crushing Co., 249 Or. 640, 440 P.2d 368, 369 (1968) (dicta that further nonconforming use may be enjoined where the use has been abandoned). Pennsylvania: Abrams v. Zoning Board of Adj., 408 Pa. 479, 184 A.2d 791 (1962) (where the nonconforming use of property in a residential area as a garage terminated, the property would thereafter be considered residential). n•see Lawylor v. Town of Salem, 116 N.H. 61, 352 A.2d 721 (1976). See also North Plainfield v. Perone, 54 N.J. Super 1, 148 A.2d 50 (1959), where the court stated (148 A.2d at 56): A use allowable only by virtue of an exception granted cannot, if subse- quently abandoned, leave a property owner with a right to resume such use when he would not have had a similar right if the original use were a nonconforming one, the uninterrupted continuance of which is expressly protected by statute. R.S. 40:-55-48, N.J. . Burden of proof: The general rule is that the party who claims a nonconform- ing use has the burden of establishing that claim (see, e.g., Vogl v. Baltimore, ' 228 Md. 283, 179 A.2d 693 (1962). There is however, support for the proposition that once a legal nonconforming use has been established, the burden of proving termination of that use by abandonment or discontinuance is on the party opposing such use. See, e.g., California Car W.ash v. Zoning Hearing Board, 510 A.2d 931 (Pa. Commw. Ct. 1986); Marchese v. Norris- town Borough Zoning Board of Adj., 2 Pa. Commw. 84, 277 A.2d 176 (1971). See also: Kentucky: Martin v. Beehan, 689 S.W.2d 29 (Ky. Ct. App. 1985). where the court stated that the party asserting abandonment bears the overall burden of proof on that issue. The discontinuance-time limitation provision of the ordinance creates a presumption of abandonment after expiration of such time liriiitation and this presumption carries the burden of proof unless rebutted by evidence. If it is rebutted by evidence, the burden shifts back to the party 1 asserting abandonment. Michigan: Dusdal v. Warren, 387 Mich. 354, 196 N.W.2d 778 (1972) (bur- den of proving abandonment of nonconforming use was on city seeking injunctive relief to abate a claim of nuisance). Pennsylvania: Miorelli v. Zoning Hearing Board of Hazleton, 30 Pa. Commw. 330, 373 A.2d 1158 ( 1977) (burden of proving abandonment is on those who assert abandonqiel)i); Tscheschlog v. Board of Sup'rs of Tinicum Township, 489 A.2d 958 (Pa. Commw. Ct. 1985). ·' For a discussion of resumption of nonconforming uses, see § 4 l .03[6J[f) iefra. ·· " (Manhcw Dender&. Co., Inc.) (Rcl.12-2191 Pub.845) '; I j .. r, • • § 41.03(6) ZoNINO AND LAND USE CONTROLS ; . 41-122 further held that the owner's intent concerning abarld~~-frient of the structure was irrelevant in the use termination' procedure,., . ··' (6(-Abandonment and Discontinuance of a Nonconforming Use (al-Termination Generally The right to a nonconforming use vests only so long as the use continues to exist.••• A nonconforming use may terminate in one of several ways. These include: amortization;u• abandonment; nonuse or discontinuance for a prescribed period; and voluntary or involuntary destruction.110 (bl-Abandonment The right to a nonconforming use of property may be lost where such use is permanently discontinued or abandoned. Many zoning ordinances, in fact, include specific provisions for termina- tion of abandoned nonconforming uses.••• ••1 Union Square Ass'n v. Marc Lounge, 75 Md. App. 465, 541 A.2d 1321 (1988). ua See, e.g., Beyer v. Mayor & City Council of Baltimore, 182 Md. 444, 34 A.2d 765, 769 (1943) (mere cessation of a nonconforming use in zoned area for a reasonable period does not of itself work an abandonment; once, however the abandonment is clearly indicated by intention and action, or failure of action for a sufficient period of time, then the owner has lost his right to a nonconforming use, and must use his property only in conformity with the uses allowed to other properties in the neighborhood). And see generally Annot, Termination of Lawful Noncotif'orming Uses Exist- ing When Zoning Ordinance was Passed, A./ler Use has been Permitted to Continue, 42 ALR2d 1146. ••• For a discussion of termination of nonconforming uses through the technique of amortization, see § 41.04 ltif'ra. no See§§ 41.03[6](bHf] itif'ra. •"1See, e.g .. Manhattan Beach, C&lifMun Code§ 10-3 1501-10-3.1512, noted in Hill v. City of Manhattan Beach, 6 C&l. 2d 279, 98 C&l. Rptr. 785, 491 P.2d 369 (1971). See also: Louisiana: Jefferson Parish v. Boyd, 192 So. 2d 873, (La. Ct. App. 1966). Ohio: City of Lima v. Hempker, 118 Ohio App. 321, 194 N.E.2d 585 (1962). Oregon: Polk County v. Martin, 292 Or. 69, 636 P.2d 952 (1981) (citing Or. Rev Stat § 215.130(7), barring resumption of a use after a period of (M11thew Bender &. Co .. Inc.) (Rel.32-2191 Pub.845) ~ ' ' 1i f·, ... ': . .'! .. ( ! '· ;.: , . 1; I '1·• I ; ,. I ~. : j I ' r· ",1:.'.1 ~ 41-121 NONCONFORMING USES § 41.03(5) The right to restore a nonconforming structure may also be subject to time limitations. Ordinances commonly require the owner to repair or rebuild partially destroyed property within a specified time period. This period may run from six months to as long as three years.••• For example, a Maryland appellate court held that a tavern, which constituted a nonconforming use in a residential area, was not entitled to reconstruction more than one year after its destruction by fire where a city statute provided that a nonconforming use is eliminated where the structure housing the nonconforming use is destroyed by fire or other calamity, and reconstruction is not begun within one year. The tavern owner alleged that because of delays on the part of the insurance carrier, the premises remained vacant for twelve months after a fire destroyed the structure. When the tavern owner later. applied to the zoning appeals board for occupancy permits for the building, ~he. application was denied under the city statute. The court for termination of nonconforming uses upon damage to the extent of SO% of assessed value was found invalid as establishing an unreasonable restriction upon « property owner's rights to continue a lawful nonconforming use. Texas: Adcock v. King, 520 S.W.2d 418 (Tex. Civ. App. 19,75) (ordinance was unconstitutional as applied where only one building of five was partially destroyed, thereby not exceeding sixty percent of its "reasonable value" as specified by ordinance). •4• See, e.g., Kellman v. McShain, 369 Pa. 14, 85 A.2d 32 (1951) (require- ment of zoning ordinance which limited right to rebuild to three years where property was destroyed by fire did not apply to right to rebuild after explosion). See also: Colorado: Service Oil Co. v. Rhodus, 179 Colo. 335, 500 P.2d 807 (1972) (ordinance was reasonable and proper which allowed 180 days for owner of destroyed property to rebuild after which nonconforming use would be terminated). Mississippi: Palazzola v. Gulfport, 211 Miss. 737, 52 So. 2d 611 (1951) (sustaining constitutionality of ordinance permitting restoration of noncon- forming buildings damaged by fire or other casualties, provided building had not been damaged beyond fifty percent of its fair value and providing reconstruction took place within twelve months). . New Hampshire:. Wunderlich v. Town of Webster, 371 A.2d 1177 (N.H. 1977) (town. zo~lng· ordinance provision that any and all nonconforming property partiqlly ·or totally destroyed by obsolescence could be restored if done witfii•l'two years applied only to obsolesence occurring after ordinance's enactment). · ' (M111hcw Dender & Co .. Inc.I (Rel.32-2191 Pub.84S) 1d I: 1'.~, ! ' "'' ; . f, ~ . ~ ' '!'I i' I d ! : ~·. ,. ·.-~ " tif W'; ~'l'l: ,) ,,1j_.· rlj: ·. "'I' I I:' (· .1 41-129 NONCONFORMING USES § 41.03(6) abandonment of a nonconforming use where (I) one-family and three-family homes were occupied as nonconforming uses until 1969; (2) subsequently, between 1969 and 1984, the one-family house was vacant although the other house continued to be used; and (3) in 1984, a new owner sought renovation of the one-story dwelling.••• Similarly, an overt act or failure to act or specific statements may support a finding of intent to abandon.••• 102 Marzella v. Munroe, 69 N.Y.2d 967, 509 N.E.2d 342, 516 N.Y.S.2d . 647 (1987). •••See, e.g .. Marchese v. Norristown Borough Zoning Board of Adj., 2 Pa. c;ommw. 84, 277 A.2d 176 ( 1971 ). The court, in a decision finding "abandon- ment" of premises for a nonconforming garage use, stated in pertinent part that (277 A.2d at 183): As distinguished from mere discontinuance, the concept of the term abandonment includes the intention to abandon. Consequently, the aban- donment of a nonconforming use and the consequent' termination of any legal right thereto results from a concurrence of facts, circumstances, and the intention of the owner of the premises or other person entitled to the use. Intention with respect to the abandonment of a nonconforming use is to be ascertained from overt acts, or failure to act, as well as statements. See also: Connecticut: Blum v. Lisbon Leasing Corp. Inc., 173 Conn. 17 5, 3 77 A.2d 280 (1977). The court held that abandonment is a question of fact and implies a voluntary and intentional renunciation. The intent, however. may be ·<inferred as a fact from the surrounding circumstances. In the instant case, evidence supported the conclusion that a nonconforming use of premises as a service station and automobile repair ship had been abandoned. When asked whether any uses were being made of the premises other than radiator cleaning, tire recapping, truck repair, truck intershipping and truck leasing, the corporate president had responded: "That just about covers it." 377 A.2d at 283 Additional supporting evidence of abandonment was the fact that the corporation was incorporated after the adoption of the zoning resolution placing the property in a residential district. Massachusetts: Dawson v. Board of Appeals, 18 Mass. App. 962, 469 N.E.2d 509 (1984) (because a nonconforming nursing home was abandoned for a period. of in excess of two years, it could not be converted to a nonconforming apartment house pursuant to the ordinance). Pennsylvania: Tantlinger v. Zoning Hearing Board of S. Union, 519 A.2d 1071 (Pa. Cornrow. Ct. 1987) (total removal of a nonconforming structure and its replacemen\wifh a different type of structure is deemed an abandonment of the nonconforming use); Tscheschlog v. Board of Sup'rs of Tinicum Township, 489 A.2d 958 (Pa. Commw. Ct. 1985). supra (an intention to abandon minconforming use may be determined by overt acts or a failure to act, ~s 'well as by statements, with the burden of proof on the asserters of (Mauhcw Ucnder & Co .. Inc.) (Rrl.32-2191 Pub.845) i·. I I ! : I .. I f ' • • § 41.03(6( ZoNING AND LAND USE CONTROLS 4.1-130 For example, a drive-in movie theater was foµ.~d to have abandoned. its nonconforming use as an adult movie theater, where its manager had testified that although the theater contin- ued for over a year and a half to show movies depicting nude males and females, such nudity was merely incidental to the movies rather than their emphasis. There was ample evidence presented to indicate that the theater did not show adult movies for a two-year period prior to this one-and-one-half-year period of showing movies with "incidental" nudity, which was beyond the ordinance's one-year period necessary to prove discontinu- ance of a special use. Therefore, the court explained that addi" tional proof of intent to abandon was not necessary and the effect of the ordinance concerning abandonment was to automatically foreclose any inquiry as to the owner's intent to abandon, if the· specified period is reasonable on its face. If a factual dicontlnu-· ance of vacancy continues for the specified period, the right to resume the nonconforming use is terminated.1 •• Significantly, a pennsylvania court pointed out that property owners have a constitutional right to continue a nonconforming use, unless the municipality proves that such use has been abandoned_, with the burden of proving abandonment upon the municipality. Accordingly, it was held that where an owner merely proposed to reduce the space or property devoted to a nonconforming use and to add to it a conforming use there was no abandonment.••• abandonment); Schaefer v. Zoning Board of Adj. of Pittsburgh, 435 A.2d 289 (Pa. Commw. 1981) (an intention to abandon a nonconforming four-Unit use of a residence was deemed supported by evidence of the former owner's ·. application for, and receipt of, a three-unit occupancy permit); Miorelli v. ZoningHearingBoardofHazleton, 30 Pa. Commw. 330, 373 A.2d 1158, 1159 (1977) (the question of abandonment is one of fact which depends upon an examination of all the various factors present in an individual case; the burden of proving an abandonment is on those who assert the abandonment); Appeal ofLangol, 175 Pa. Super 320, 104 A.2d 343 (1954) (no abandonment of premises for use as store where property was vacant for over a year but where during this period owners attempted to rent it for store purposes). 11• Texas National Theatres v. City of Albuquerque, 97 N.M. 282, 639 P.2d 569 (1982). 11• Feldman v. Zoning Hearing Board, 492 A.2d 468 (Pa. Commw. 1985). For a discussion of constitutional considerations generally, see§ 41.01 [3) supra. (M1t1hcw Bender & Co., Inc.) (Rcl.32-2191 Pub.84S) i: ~) ....... . . ~ '. '. I j ,· :) '.,._,- ·l 4" ~ . .. 'l! ' . ' '. -.:i ;1 41-131 NONCONFORMING USES § 41.03(6) A Florida appellate court has held that the involuntary cessa- tion of the nonconforming use of premises for the sale of alcoholic beverages, due to the loss of a beverage license in administrative disciplinary proceedings, does not constitute abandonment and termination of the nonconforming use, without proof of an intent to abandon such use.111 Similarly, where the nonuse period was directly linked to foreclosure litigation, a Pennsylvania appellate court unanimously reversed the denial of a permit application by prospective buyers for the continuation of a nonconforming restaurant because there was lack of evidence of an actual aban- donment. The court concluded that the delay due to the litigation was not an appropriate means of measuring the period of non- use.187 Lapse of time is not per se a decisive factor in the finding of itbandonment of a nonconforming use.••• In some cases, the courts have refused to find abandonment even though the use had ceased for considerable period of time.18 • Usually, however, 111 Lewis v. City of Atlantic Beach, 467 So. 2d 751 (Fla. Dist. Ct. App. 1985). 187 Raye! v. Bridgeton Township Zoning Hearing Board, 511 A.2d 933 (Pa. Commw. Ct. 1986). 110 See. e.g., Marchese v. Norristown Borough Zoning Board of Adj., 2 Pa. Commw. 84, 277 A.2d 176 (1971) (absent a specific provision in a zoning ordinance, lapse of time is not per se decisive as to whether a nonconforming '* has been abandoned). See also: J/linois: People v. Morris, 334 Ill. App. 557, 79 N.E.2d 839 (1948) (mere cessation of use of apartment building for three years without showing intent to abandon held not to result in loss of right to resume use). Kentucky: Martin v. Beehan, 687 S.W.2d 29 (Ky. Ct. App.) (discontinuance of use is considered but a single factor, albeit a strong one, in determining intent to abandon nonconforming uses). Rhode Island: A. T. & G., Inc. v. Zoning Board of Review of North Smith- field, 113 R.J .. 458, 322 A.2d 294 (1974) (abandonment not conclusively established by cessation of use alone). 180 See, e.g., Borough of Saddle River v. Bobinski, 108 N.J. Super 6, 259 A.2d 727 (1969) (no abandonment of structure as a stable after twenty-seven years where the structure had been continually repaired and maintained by the owner over il\e years, it continued to be usable as a stable, and there was no contrary µ'se during that period). See'~(so: · New York:· Braun v. McGillian, 180 Misc. 711, 40 N.Y.S.2d 791 (1943). (Manhcw Hender & Co .. Inc.) (Rel.ll-2191 Pub.84S) ~ .. ' . '' r. 1'·_,· ·1.· ', .. '' '·· ',: , ,:I " ' :~ • • § 41.03(6( ZoNING AND LAND UsE CONTROLS 41-132 • . .,.; ~ cessation of a nonconforming use for a consider~bl{period of time will result in a finding of intent to abandon,!•~. excepi where the accompanying circumstances disprove such intent,111 North Dakota: Minot v. Fisher, 212 N.W.2d 837 (N.D. 1973) (presumption of abandonment after three years nonuse of premises did not apply where there was evidence that failure to use building in rionconforming manfler ·was caused by circumstances beyond owner's control, including a flood which extensively damaged the building). See also § 4 l.03[6][e) infra. 170 See, e.g., Borough of West Mifflin v. Zoning Hearing Board of West Mifflin Borough, 3 Pa. Commw, 485, 284 A.2d 320 (1971). Prior to adoption of zoning ordinance and entry into army, owner•s son had conducted a nonconforming commercial trucking operation on premises. The son returned to that use thirteen years after his army discharge. The court found that the use had been abandoned. See also: Arkansas: Branch v. Powers, 210 Ark. 836, 197 S.W.2d 928 (1946) (aban- donment of garage for nonconforming use after nine years of conforming use). Massachusetts: Bartlett v. Board of Appeal of Lakeville, 23 Mass. App. 664, SOS N.E.2d 193 (1987) (where two of three of owner's dwelling units in a nonconforming building had not been used for ten years prior to filing for a renovation permit, a clear abandonment was found pursuant to a state statute and town ordinance providing for extinction of nonconforming uses if they were not used for .two years). North Carolina: Forsyth County v. Shelton, 329 S.E.2d 730 (N.C. Ct. App. 198S) (since the owners of lake property had discontinued their nonconform' ing use of commercial amusements for at least four years, within the prescribed time limits of the ordinance constituting abandonment, the land could not be reestablished for commercial amusement uses). Ohio: State v. DePledge, 81 Ohio L Abst 463,.162 N.E.2d 234 (19S8) (nonconforming cottage vacant almost two years and repairs not made). 111 See, e.g., Brown v. Gerhardt, S Ill. 2d 106, 12S N.E.2d 53 (I 9SS), where it was held there was no intention to abandon a nonconforming use of a dwelling as a multi-family unit where the entire dwelling had been leased for six years to a single family, who occupied the building without removal of fixtures to make a one family unit. See also Town of Highland Park v. Marshall, 23S S.W.2d 6S8 (Tex. Civ. App. 19SO) (mere cessation of use for a reasonable period of time does not work an abandonment, whether building is permitted to remain vacant or is temporarily utilized for a conforming use with intent that nonconforming use be resumed when the opportunity should arise, and there is no change of character of use due to periods of interruption caused by lack of demand, inability to get a tenant and financial difficulty). An intent to preserve a usage may be found where, for example, the (Mauhew Bender &. Co .. Inc.) (Rel.32-2191 Pub.84.SJ ;., <; r '• ,, I.,·· I ' ;'t ·," >.'. ll<I" ·(, ''l --·· J1 -_f ,,, . I ' ·I " ' " ! "'I ·' I I I 1 '.I ' I c~.· .,, .,.,, 41-133 NONCONFORMING USES § 41.03(6( On the other hand, some courts do not consider intent to be a necessary prerequisite to proving that a nonconforming use was abandoned. For example, an Arkansas appellate court held that an owner's lack of intent to abandon a nonconforming use was not relevant to a determination of whether the discontinuance of the use for more than thirty days resulted in a termination of the use pursuant to the ordinance, unless it was reinstituted within a prescribed time period. The court pointed out that the state courts had previously implemented such ordinances, and held that the failure to reinstitute the use within the prescribed period ·Of time was per se determinative, without regard to intent.112 (cl-Discontinuance or Nonuse Nonuse or discontinuance may constitute an abandonment, i.e., termination, of a nonconforming use.11• It should be noted, lessor--0wner is prevented from operating premises for that use because of his inability to procure a willing tenant or other substantial impediment over which he has no control. See, e.g., In re Concerned Citizens, Inc. v. Lester, 62 A.D.2d 171, 104 N.Y.S.2d 360 (1978) (case remanded to Zoning Board of Appeals for further consideration of abandonment issue in accordance with SP,CCific guidelines. 112 Anderson v. City of Paragould, 16 Ark. App. 10, 695 S.W.2d 851 (1985). 111 See. e.g., Hartford County v. McDonough, 74 Md. App. 119, 536 A.2d 724 (1988). In Hartford County, the county discontinued the 'use of a noncon- forming boat ramp because of its deterioration and the inherent dangers created by that deterioration but fully intended to reopen the ramp upon completion of repairs. Due to delays in appropriating the necessary funding for the repairs, however, rehabilitation work did not begin until more than two years after the ramp was closed. The applicable zoning ordinance provided that a nonconforming use which ceased for one year was deemed abandoned. Thus, when rebuilding of the ramp began, adjacent property owners sought an interpretation by the county zoning administrator as to whether the ramp had been abandoned. The administrator ruled that there had been no aban- donment and this decision was affirmed by the board of zoning appeals. However, upon .. later appeals, the court of special appeals upheld the circuit court•s findings disregarding the county's intent, strictly construing the applica- ble one year nonuse statute, and holding the use was, in fact, abandoned. See also: Maryland: Canada's Tavern, Inc. v. Town of Glen Echo, 260 Md. 206, 271 A.2d 664 (1970). , . New Jerse)dltaie v. Casper, 5 N.J. Super 150, 68 A.2d 545 (1949) (there was abandon~ent through discontinuance where rooming house was closed (Manhcw Bender & Co., Inc.) (Rcl.32-2191 Pub.845) - - - - - --,-,--'" I • • § 41.03(6( ZoNJNG AND LAND UsE CONTROLS 41-134 .. however, that the Louisiana Supreme Court found -that-although all except one unit of a nonconforming multiple-family· dwelling had been vacant for more thal) six consecutive· months, the building did not terminate as a nonconforming use. The court pointed out that since the entire building was a single noncon- forming use, it would have to be entirely vacant in order for it to lose its nonconforming status pursuant to the-applicable ordinance.••• The term "discontinued" in ordinances prohibiting the resumption of a nonconforming use which has been "discon- tinued" for a specified period, has been generally held to be equivalent in meaning to "abandoned."1 10 Consequently, for four years). New York: Sun Oil Co. of Pennsylvania v. Zoning Board of Appeals of Harrison, 157 A.D.2d 627, 393 N.Y.S.2d 760 (1977) (upholding reasonable- ness of town ordinance which provided that nonconforming use discontinued in excess often months was to be deemed abandoned; this automatically ruled out inquiry into intent to abandon if, as in present case specified period of. time was reasonable on its face); Deyo v. Hagen, 41 A.D.2d 790, 341 N.Y.S.2d 328, 332 (3d Dept. 1973) ("a protracte1 period of disuse, unaccompanied by circumstances which belie intent to abandon may be regarded as an abandon- ment" of a nonconforming use). •••Lozes v. Waterson, 513 So. 2d 1155 (La. 1987). 110 See, e.g., Dubitzky v. Liquor Control Comm'n, 160 Conn. 120, 273 A.2d 876 (1970), where the court stated in pertinent part that: In Town of Darien v. Webb, 115 Conn. 581, 162 A. 690, we held that an ordinance which provided that a previously existing use "may be continued" did not prohibit the reestablishment of such a use once it had been discontinued unless there was a definite intent on the part of the owner to abandon the use evidenced by overt acts of failure to act sufficient to constitute proof of that intent. In Ullman, State's Attorney ex rel. Eramo v. Payne, 127 Conn. 239, 242, 16 A.2d 286, we emphasized that the proof of the owner's intent was the crucial element in Darien v. Webb .... We have held that the word "discontinued" in ordinances prohibiting the resumption of a nonconforming use which has been discontinued for a specified period is equivalent in meaning to "abandoned," and evidence of an intent by the owner permanently to cease the use is required, and .we have held that the mere fact of nonuser for a period of insufficient to constitute an abandonment. Ullman, State's Attorney ex rel. Eramo v. Payne, supra, 127 Conn. 241, 16 A.2d 286; see also Town of West Hartford v. Willetts, 125 Conn. 266, 5 A.2d 13; 2 Rathkopf, op. cit. § 4, p. 61-5. 273 A.2d at 879. See also: Illinois: McCoy v. City of Knoxville, 41 Ill. App. 2d 378, 190 N.E.2d 622 (Matthew Bender & Co., Inc.) (Rel.32-2191 Pub.14S) ·,,·::·11- 1 _._ .. _-::i.· ;' ",_,) ............. ''jg''· (._ ... ,._ . • I' .. · ., " ~ .. ,' ' ' ... ' . ,,, ' i·' .. ,'.',, '!•: . f • .·· ... ' . c ·.\ ' •. . ' -, F. ·' •.· ' ·• I ,·•i!' ~-·· :.1 ~ ;' ' ' ' ' ' ;. .1 I I '· i j I • . 'I ' I i' j I I ,, I ,. '' .' 1 fl; ' I ' i'~: .. \:l (1963) (no abandonment of nonconforming use of filling station under zoning ordinance providing that in event nonconforming use was abandoned for period of two years or more, the premises could only be used in conformity with zoning regulations). Kansas: Union Quarries, Inc. v. Board of County Comm'rs of Johnson County, 206 Kan. 268, 478 P.2d 181, 186 (1970) (rock quarrying operation not abandoned). New York: Daggett v. Putnam, 40 A.D.2d 576, 334 N.Y.S.2d 556 (1972) (there is no abandonment unless discontinuance of use is complete) . Texas: Plemons-Fakle Neighborhood v. City of Amarillo, 694 S.W.2d 218 (Tex. Ct. App. 1985), where the court stated that discontinuance ofa noncon- forming use requires the concurrence of an intent to abandon and some overt act or failure to act which carries the implication of abandonment. Therefore, where the owner and her lessee had entered into an agreement for the purchase of the owner's equipment and building and the buyer would continue the nonconforming business, there was a clear intent demonstrated by both parties that the operations would continue. 178 See Dubitzky v. Liquor Control Comm'n, 160 Conn. 120, 273 A.2d 876 (1970). . See also: Connecticut: Magnano v. Zoning Board of App., 188 Conn. 225, 449 A.2d 148 (1982) (the mere cessation of a nonconforming use for more than one year, without any intent to abandon the use, was insufficient to terrninate the Qse). · Illinois: People v. Park Ridge, 110 Ill. App. 2d 404, 249 N.E.2d 681, 686 ( 1969) (a claim that a nonconforming use has been abandoned must be shown by more than a mere cessation of use; it must appear there is an intent to abandon the nonconforming use). Kentucky: Smith v. Howard, 407 S.W.2d 139, 141 (Ky. I 966)(the discontin- uance of a use sufficient to forfeit a nonconforming use must "either be intentional or ·fraught with such lack of diligence" as to amount to an abandonment for the required period). Cf Minot v. Fisher, 212 N.W.2d 837 (N.D. 1973). 111 See, e.g .. FpreJich v. Beach Point Club, Inc., 202 N.Y.S.2d 115 (Sup. Ct. 1960), where i~e court stated in pertinent part that: The discqn'tiOuance of the nonconforming use of an entrance driveway to a coµtttr)' club for 21 months without an intent to abandon would seem (Ma11hcw Ucndcr & Co,, Inc.) (Rel.32-2191 Pub.84S) ;1:1 ff '· "~· .. ~ ,l''i '!·· I ·' ,I " ' . I Ii ' ·, • • § 41.03(61 ZoNINO AND LAND USE CONTROLS 41-136 For a discussion of abandonment, see§ 41.03[6](\l] supra. Some zoning ordinances provide that if a nonconfor~ing use is discontinued for a designated period of tinie,' such fact is conclusive evidence of discontinuance.'7• Most ordinances unusual, but the length of discontinuance of a use is only some evidence of the intent and not a positive indication of abandonment, unless it be for many years and is not explained by other circumstances or is by the ordinance made conclusive evidence of abandonment. The plaintiffs offer nothing to show an intent to abandon except the discontinuance and in no way challenge the statement of defendant's president in his affidavit verified May 10, 1960 that the cause of discontinuance was disrepair, that the discontinuance was temporary and that it has lasted only "until the club appropriated sufficient funds with which to repair the same," apparently using the word "appropriated" as a substitute for "accumulated." Although the statement was not supported by any other evidence offered by the defendant, it stands unchallenged; and if the closing was intended to. continue only until the club had sufficient funds available for the repair of the driveway, it would not constitute an abandonment, even for four or five years. 202 N.Y.S.2d at 117. See also: Kentucky: Smith v. Howard, 407 S.W.2d 139 (Ky. 1966) (property owner did not forfeit right to continue nonconforming use of his property by his inability to lease the property for approximately one year, where due diligence to lease the property was exercised, and there was no evidence of intenl to abandon the use; this was despite ordinance provision that no nonconforming use could be reestablished after discontinuance for one year). New York: In re Concerned Citizens, Inc. v. Lester, 62 A.D. 2D 171, 104 N.Y.S. 2d 360 (1978). 110 See, e.g., Chicago Zoning Ord § 6.5-2, which provides: Discontinuance. If a nonconforming use of a building or structure, all or substantially all of which building or structure is designed or intended for a use permitted in the district in which it is located, is discontinued for a period of six consecutive months, it shall not be renewed and any subse- quent use of the building or structure shall conform to the use regulations of the district in which the premises are located. See also: Colorado: Service Oil Co. v. Rhodus, 179 Colo. 335, 500 P.2d 807 (1972) (180 days was reasonable). Delaware: Auditorium, Inc. v. Board of Adj. of Mayor, Etc., 191 A.2d 528 (Del. 1952) (where there has been nonuse ofa nonconforming use for more than two years, it must conclusively be presumed to be an abandonment of such use under zoning ordinance prohibiting resumption of any nonconform- ing use in excess of two years). (~buhcw Bender & Co .. Inc.) (Rel.32-2/91 Pub.84~) i''."' '. ;) . ; .';t• ·• ...... 1;·' I' i '\ -~ ' i l'' I ~- ' .. '· . I. i•r \ I r ·~·:1 i'·' 1 ~. f : ' i,; 41-137 NONCONFORMING USES § 41.03(6( impose a one-year time period."• although some specify a period Michigan: Norton Shores v. Carr, 81 Mich. App. 715, 265 N.W.2d 802 (1978). Nebraska: City of Lincoln v. Bruce, 221 Neb. 61, 375 N.W .. 2d 118 (1985) (holding that the discontinuance of defendants' nonconforming mobile home use for a period of over two years forfeited the right to reestablish that use thereafter; the court noted that once the mobile home nonconforming use was abandoned, the right to have the nonconforming use on the land was forfeited). New York: Swartz v. Wallace, 87 A.D.2d 926, 450 N.Y.S.2d 65 (1982) (city zoning board lacked authority to waive a provision of a zoning ordinance that provided for termination of nonconforming uses after a period of discontinu- ance of twelve months or more); Hanna v. Crossly, 40 A.D.2d 577, 334 N.Y.S.2d 443 (4th Dept. 1972). An ordinance provided that vacancy ofa building utilized for a nonconforming use for a period of twelve consecutive months would be deemed a discontinuance and thus could not be reestab- lished. The court found that the nonconforming use was discontinued for the req~isite time period because there was ample proof that use of the premises as a gasoline station had been abandoned for five years, notwithstanding the fact that the petitioner-owner had relinquished possession to a tenant. Ohio: Newman Co. v. Board of Zoning Appeals of Painesville Township, Lake County, 24 Ohio Misc. 251, 265 N.E.2d 336 (1970) (forfeiture of nonconforming use upon discontinuation of use for two years sustained). Wisconsin: State v. Burt, 42 Wis. 2d 284, 166 N.W.2d 207 (1969) (use of residential buildings not included as a permitted use in area zoned for manufacturing and which had remained vacant and unoccupied for a continu- ous period of one year was "discontinued" under ordinance providing for relinquishment of nonconforming use where such use was discontinued for a continuous period of one year). See generally Spicer v. Holihan, 550 N.Y.S.2d 943 (App. Div. 1990). Strict construction: Zoning ordinances which require conformance after a nonconforming use is discontinued for a designated period of time must be strictly construed. See, e.g., Smith v. Howard, 407 S.W.2d 139, 141 (Ky. 1966) ("Zoning ordinances containing provisions in derogation of common law property rights:are strictly construed"). For a ·&tailed discussion of construction of zoning ordinances, see ch. 36 supra. 179 See, e.g.: Alabama: Board of Zoning Adj. v. Boykin, 265 Ala. 504, 92 So. 2d 906 (1957). • ~ .1 481 Sn ?rl 666 (I a. Ct. App. 1986) . "' • • § 41.03161 ZoNING AND LAND USE CONTROLS 41-138 as limited as sixty days.100 Some regulations simply termi~ate the use upon voluntary discontinuance.••• Such ordinances are in- valid, however, if they conflict with a state eniibling act which specifically allows continuance of a nonconforming use.102 Some ordinances use the term "discontinued" rather than "abandoned." This is apparently done to avoid the problem of having to prove intent, which is generally required in abandon- ment cases.10• Thus, a New York appellate court upheld the denial of a subsequent owner's application for building permits to renovate and operate a restaurant which had previously operated as a nonconforming tavern in a residential area but had been vacant for two and a half years. In that case, the applicable ordinance provided that if a nonconforming use was discontinued for more than one year, reestablishment of the discontinued use was barred.10• This device has been successful in a few cases where the courts interpreted such ordinances to do away with the requirement of. showing intent to abandon.••• The Colorado 134, 179 N.E.2d 82 (1960). Wisconsin: State ex rel. Brill v. Mortenson, 6 Wis. 2d 331, 96 N.W.2d 603 (19S9). 1ao See, e.g., Consolidated Rock Products Co. v. Los Angeles, S7 Cal. 2d SIS, 20 Cal. Rptf. 638, 370 P.2d 342, appeal dismissed, 371 U.S. 36 (1962). 1a1 See, e.g .. Atty Gen. v. Johnson, 3SS S.W.2d 30S (Ky. 1962). 112 See A.T. & G., Inc. v. Zoning Board of Review, 113 R.I. 4S8, 322 A.2d. 294 (1974) (court invalidated an ordinance which terminated right to a nonconforming use after one year's discontinuance because it conflicted with. a statute which prohibited adoption of a zoning ordinance designed to prevent continuance of a nonconforming use). ,., See generally, Note, Abatement of Nonconforming Uses and Structures, 44 Conn. BJ S89 (1970). •••Spicer v. Holihan, SSO N.Y.S.2d 943 (App. Div. 1990). 181 See. e.g., Franmor Realty Corp. v. LeBoeuf, 201 Misc. 220, · 104 N.Y.S.2d 247 (19SI), qff'd, 279 A.D. 79S, 109 N.Y.S.2d S2S, appeal denied, 279 A.D. 874, I 10 N.Y.S.2d 910 (2d Dept. 19S2) (it was unnecessary to show intent to abandon gasoline station discontinued because of wartime restric- tions because the ordinance specifically terminated the nonconforming use upon discontinuance for the prescribed twelve month period); see also Sun Oil Co. of Pennsylvania v. Board of Zoning Appeals of Harrison, S7 A.D.2d 627, 393 N.Y.S.2d 760 (1977); Spencerport v. Webaco Oil Co., 33 A.D.2d 634, 30S N.Y.S.2d 20 (4th Dept. 1969). See also: Federal: League to Save Lake Tahoe v. Crystal Enters., 68S F.2d 1142 (9th (Manhcw Bender&. Co., Inc.) ) -· .·• ") , .. .,, \_~ r· ~ ' i:';' ' I i J. ,· ! 'I' ij' I ,· ' I I• j. ' .~ ··' ·1, 1 . ."' ·•.: ! ',J! i .I r. I ; '~ ·::' ',' t I ·:,. 41-139 NONCONFORMING USES § 41.03(6( Supreme Court, for example, unanimously overruled an estab- lished precedent that proof of intent was required in discontinua- tion ordinances.11• In most cases, however, the courts have refused to make such a distinction, and still require proof of interit.111 (Text continued on page 41-143) Cir. 1982) (where construction could constitute a nonconforming use under an ordinance, the discontinuance of construction for one year on a parking garage and hotel tower was deemed a loss of rights under the nonconforming ·use; proof of intent to abandon was unnecessary, since such proof was not required under the ordinance); C. F. Lytle Co. v. Clark, 491 F.2d 834 (10th Cir. 1974) (intent not essential element of cessation where ordinance provides that a nonconforming use which has been discontinued for a period of one year need not be reestablished). Louisiana: Fuller v. New Orleans, Dept. of Safety & Permits, 311 So. 2d 466 (La. Ct. App. 197 5) (where ordinance provides that iiltention is not pertinent to abandonment, neither intent to continue nonconforming use nor make-shift use will preserve nonconforming status). ·Maryland: Canada's Tavern, Inc. v. Glen Echo, 260 Md. 206, 271 A.2d 6~4, 27 A.2d 664 (1970) (extinguishment of nonconforming use requires only cessation of such use for a period of six months or more; it is not necessary to show accompanying intent to abandon). Cf McLay v. Maryland Assem- blies, Inc. 265 Md. 465, 306 A.2d 524 (1973) (involuntary discontinuance of .nonconforming use due to lack of business was an "involuntary cessation" of Ilse rather than discontinuance or abandonment under ordinance which provided that discontinuance or abandonment of a nonconforming use for six consecutive months during a three year period precluded further use). Wisconsin: State v. Burt, 42 Wis. 2d 284, 166 N.W.2d 207 (1969) (a noncon- forming use which had been continuously unoccupied and vacant for a period of at least one year constituted a discontinuance under the ordinance; the city did not have to prove intent to abandon the use). See generally Essex Leasing v. Zoning Board of Appeals, 9 Conn. App. 391, 518 A.2d 970 (1986). 10•Hartley v. City of Colorado Springs, 764 P.2d 1216 (Col. 1988). 1a1 See, e.g.: Alabama: Quinnelly v. Prichard, 292 Ala. 178, 291 So. 2d 295 (1974). Connecticut: Ullman ex rel. Eramo v. Payne, 127 Conn. 239, 16 A.2d 286 (1940). Illinois: McCoy v. Knoxville, 41 Ill. App. 2d 378, 190 N.E.2d 622 (1963); Douglas v. Melrpse Park, 389 Ill. 98, 58 N.E.2d 864 (1945). · Kentucky: S,hith ·v. Howard, 407 S.W.2d 139 (Ky. 1969). Mas~afhUsetts: Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560, 120 N,E.2d 913 (1954). North Carolina: Southern Equipment Co. v. Winstead, 80 N.C. App. 526, (M111hew Bender & Co., Inc.) (Rel.32-2191 Pub.84S) '•' I ~ ,,._.· " ' • • § 41.03161 ZoNING AND LAND USE CONTROLS 41-140 ,, . 342 S.E.2d 524 (1986). , Pennsylvania: West Mifflin v, Zoning Hearing Board, 3, Pa:'commw. 485, 284 A.2d 320 (1971). . Rhode Island: Town of East Greenwich v. Day, 375 A.2d 953 (R.I. 1977); A. T. & G., Inc. v. Zoning Board of Review, 113 R,I. 458, 322 A.2d 294 (1974). Oregon: Dither v. Baker Rock Crushing Co,, 249 Or. 640, 438 P.2d 988 (1968), modrd on other grounds, 249 Or. 652, 440 P.2d 368 (1968). Divergent Judicial Views: In Minot v. Fisher, 212 N.W.2d 837 (N,D. 1973), the Supreme Court of North Dakota discussed in detail three divergent judicial views regarding whether proof of intent to abandon is necessary where an ordinance contains a specified period of discontinuance designed to prevent resumption of a nonconforming use. The court stated in pertinent part (212 N.W.2d at 839-841): Section 23--0317( I) (c) of the Minot Zoning Ordinance provides: •'Whenever a nonconforming use of a building or portion thereof is discontinued for a continuous period of two years, any future use orsuch building or portion thereof shall be in conformity with the regulations of the district in which such building is located!' Intent to abandon, and overt acts of abandonment, are the elements .of abandonment, and the City of Minot [hereinafter City] asserts that the element of intent to abandon should not be necessary to prove, due to the presence in the ordinance of a definite period of time of discontinuance of a nonconforming use that prohibits the resumption of such nonconforming use. The appellees, on the other hand, assert that despite the presence in the ordinance of a definite period of discontinuance of a nonconforming use, both elements of abandonment must be proved before a party can be denied a nonconforming use of property because of discontinuance of such noncon' forming use for two years. The district court agreed with the appellees and dismissed the City's action. The City appeals from that judgment of dismissal and presents the following issues for review: I. The Court erred in requiring proof of the element of abandonment to .discontinue a nonconforming use under the Alinot ordinances. There appear to be three judicial views relevant to the first issue. One view has been that there must be shown an intent to abandon a nonconform, ing use before its resumption can be prohibited: this despite the presence of an ordinance containing a specified period of discontinuance designed to prevent resumption of a nonconforming use. Representative of this holding is the case ofDubitzky v. Liquor Control Commission, 160 Conn. 120, 273 A.2d 876 (1970), wherein Dubitzky lost a permit to sell liquor in a drugstore because of the actions of his lessee. The ordinance involved in the Dubitzky case provided that in any building where liquor was sold, where such use 'has been voluntarily discontinued or has been voluntarily (M11thcw Bender&. Co .. Inc.) (Rcl.32-2/91 Pub.84') ( ) ~: 7•'' . ' ' i'· .',' !'; ') ~ l_. ' .-,,., \' j'' ; .. ,, : ' ';> ·'' ' ' ., ·,;,, . ' '' " ~'' i ... :l ' ' . j ••• " I I .< \ ' ( c• .. •:h 41-141 NONCONFORMING USES § 41.03(61 inoperative for a period of thirty (30) days, such use shall not be resumed except in conformity with the provisions of paragraph 281.3'. Paragraph 281.3 [East Hartford Zoning Ordinance) prohibited the sale ofliquor within I 500 feet of another liquor outlet. Dubitzky's lessee ceased to sell liquor more than thirty days before the termination of his lease, which cessation resulted in the Liquor Control Commission denying Dubitzky's application for a liquor license. Dubitzky was diligent in attempting to show that he had no intention of abandoning his nonconforming use of the building for the sale ofliquor and that he intended to resume the sale of liquor on such premises at his first opportunity. Dubitzky's request for a liquor permit was denied by municipal authorities: however, after several appeals, the Su- preme Court of Connecticut decided that his liquor permit should have been sranted. The Connecticut court stated, in Dubitzky, supra, 213 A.2d at 879: We have held that the word "discontinued" in ordinances prohibiting the resumption of a nonconforming use which has been discontinued for a specified period is equivalent in meaning to "abandoned, 11 and evidence of an intent by the owner permanently to cease the use is required, and we have held that the mere fact of nonuser for a period is insufficient to constitute an abandonment. [Second View] . A second judicial view on this issue is that the inclusion of a discontinu- ance period in a zoning ordinance on nonconforming uses removes the necessity of proving intent to abandon such a use, and, therefore, passage of the required discontinuance period of time alone prevents the resumption of the nonconforming use. This rule was applied in the case of Canada's :Tavern, Inc. v. Town of Glen Echo, 260 Md. 206, 271 A.2d 664 (1970), where the ordinance in question read, in pertinent part: ... No nonconforming use, once abandoned, shall thereafter be reestablished. For the purpose of this section, "abandoned" shall be defined as the cessation of a nonconforming use for a period of six months or more. In Canada's Tavern the plaintiff owned a building in which a restaurant was operated, which constituted a nonconforming use in its area. The plaintiff in Canada's Tavern rented the building, but it became vacant and was unused as a restaurant for a period in excess of six months. The County Board of Appeals found that the plaintiff in Canada's Tavern had been diligent in her efforts to lease the building and decided that the certificate of occupancy was properly issued to the new lessee. A trial court reversed the board's decision and the Maryland Court of Appeals affirmed and denied the certificate of occupancy. The decision to deny the certificate of occu- pancy was made despite the fact that the plaintiff had been diligent in attempting )0 find a tenant for the building. W,it~. res!lect to the ordinance in question in Canada's Tavern, supra, 271 A.2d at 666, the Maryland Court of Appeals said: (Matthew Bender&. C'o., Inc.) (Rtl.32-2191 Pub.84j) I ,. I t',· .• ;, ,1 1-I• ,, .. , I I' ~ I 1: . ii' 1;:,1: I"'' 1:4 .. I" f.. ,·· ~' I ~ t .:.' • • § 41.03(6( ZoN1No AND LAND UsE CONTROLS 41-142 ··:.:. We think the Council, having in mind a larger purpose;· intended to align itself with those local governments which have .fourtd it desirable to delete ihe factor of intent in respect of the abandonment, discontinu- ance or cessation of nonconforming uses rather than continuing to run the gamut of its judicial determination in a succession of infinitely variable factual situations. · For a similar holding, see State ex rel. Peterson v. Burt, 42 Wis. 2d 284, 166 N.W.2d 207 (1969). (Third vlewl A third judicial view on this issue is represented by the case of Marchese v. Norristown Borough Zoning Board of Adjustment, 2 Pa.Commw. 84, 277 A.2d 176 (1971) (the Pennsylvania Commonwealth Court is an appellate court composed of seven judges]. In Marchese, the ordinance involved read · as follows, in pertinent part: Whenever a nonconforming use of a building or portion thereof, has been discontinued for a period of at least one (I) year, such nonconform- ing use shall not thereafter be reestablished, and the future use shall be in conformity with the provisions of this Ordinance, [Article IV,§ 19, subsec. 5 (approved January I, 1956), Borough of Norristown Zoning Ordinance.] The building in question in the Marchese case was a large garage, the use of which was nonconforming under the ordinance. The building was first used for daily·parking ofa contractor's trucks and its use was later changed to a more restrictive one of seasonal storage of specialty contracting · equipment with Infrequent minor maintenance work being done there. The owner subsequently tried to lease the building for a less restrictive nonconi forming use. The trial court in Marchese affirmed the decision that the nonconforming use was lost through abandonment, since the building was not used from the fall of 1961 until January 9, 19.68-well over the one-year period set forth in the ordinance. The appellate court in the Marchese case affirmed the trial court and established the rule, in 277 A.2d at 183: But where, as here, a one-year time limitation on the right to resume the nonconforming use is imposed by the zoning ordinance, the intention to surrender the right is presumed from the expiration of the designated period. We do not feel that the one-year limitation period is unreasonably short, nor do we foresee injustice in giving rise to this presumption as long as this one-year limitation is not applied in situations where the cessation of use was beyond the control of the property owner. The third judicial view of the loss of nonconforming uses is, we believe, the most equitable. This view presumes abandonment after the designated period of non use has passed, but avoids a due process challenge by not applying the presumption of abandonment in situations where the cessation of use was beyond the control of the property owner. (Manhcw Bender &. Co., Inc,) (Rcl.32-2191 Pub.114S) ( ......... '!c ;• ) ' ..• :~· f ii:) <~' ''I " ' . , . ' . ' . ' . lj .!') .• ::1'.j '' ·'1 . ·:1 ' ' r ) .. , .. ., ., " ; \ ' I, ·1 I :i;J ··,:, ' I i1 • I .\ ' (·'··· ' ' , .. ,, ( 41-143 NONCONFORMING USES § 41.03(6) [di-Destruction of Nonconforming Uses or Buildings The destruction of a nonconforming use or of a building housing a nonconforming use may, under some circumstances, constitute an abandonment of the right to continue such use.11• In one case, for example, the tearing down of a nonconforming hedge and wire fence and its replacement by a wood fence was held to be an abandonment of the right to .maintain the nonconformity.••• The court, in Marchese, supra. 217 A.2d at 186 [quoting from Appeal of Lord, 368 Pa. 121, 12S-126, 81 A.2d S33, S3S (19SI)], said: It is not well settled that zoning acts and ordinances passed under them are valid and constitutional as structural or general legislation whenever they are necessary for the preservation of public health, sefety, morals or general welfare, and not unjustly discriminatory, or arbitrary, or unreasonable, or c01ifiscatory in their application to a particular or .. specific piece of property.[Emphasis in original.] · We believe that the ordinance in question in the instant case, when interpreted according to this third judicial view of not applying the presump- tion of abandonment in situations where the cessation of use was beyond tlie control of the property owner, is reasonable and nonconfiscatory ordinance. Some situations that have been held to be beyond the control of the property owner are: . . . war ... fire; hurricane; flood; financial inability of the owner to continue in business; inability to find a tenant desirous of using the premises for a purpose permissible as a nonconforming use; ... nonuse because of necessary repairs. 110 See, e.g .. Weldon v. Zoning Board of Des Moines, 2SO N.W.2d 396 (Iowa 1977) (under original Des Moines zoning ordinance, a nonconforming use of a building was extinguished when building housing the use was tom down. See also: North Carolina: Pamlico Marine v. N.C. Dept. of Natural Resources, 80 N.C. App. 201, 341 S.E.2d 108 (1986) (a nonconforming use's right to exemptions from zoning regulations terminates upon the destruction of the use). Pennsylvania: Antonini v. Zoning Hearing Board of Marble Township, 9S Pa. Commw. 420, SOS A.2d 1076 (1986)(when an owner razed a nonconform- ing office building this constituted an abandonment of the use). See generally Sitgreaves v. Board of Adj., 136 NJL 21, S4 A.2d 4S I (1947). •••Bomscheuer v. Corbett, 6 A.D.2d 83S, 17S N.Y.S.2d 913 (19S8). The court stated (IJ~ N.Y.S.2d at 914-9IS): Se~ti.s>ri 408 of the Building Zone Ordinance of the Town of Brookhaven, which limits the height of fences that may be erected on side-lot lines in (Manhcw Bender&. C~ .. Inc.) (Rel.)2-2191 Pub.845) . ;~f' I." • • § 41.03(6( ZoNINO AND LAND USE CONTROLS 41-144 Where a structure housing a nonconforming use is invoh:mtar- ily destroyed, the property owner may be allowed .to replace the structure to continue the nonconforming use.109. Thus, a New the B residence district to 6 feet along the portion which is to the rear of the rear-foundation line of the dwelling and to 4 feet with respect to the frontyard line, was first enacted in 1954 .... It is alleged in the petition that the hedge and wire fence had been in existence on this lot line for a period of years prior to the enactment of said ordinance provision and that the present fence was erected in substitution thereof. On the basis of the said statement at the hearing before the appellant board the Special Term held that, if the claim that on the date of the enactment of the said ordinance provision the respondent had a right to maintain the hedge and wire fence as a nonconforming use can be established by competent proof, there was no abandonment of the use or an extension of the nonconforming use, and for that reason remitted the matter to the appellant board. In our opinion the tearing down of the hedge and wire fence was an abandonment of all right to the maintenance thereof as against the ordinance provision, and the erection and maintenance of the wood fence may not be considered as a continuance of the said nonconforming hedge and wire fence. Cf Cross- roads Recreation v. Broz, 4 N.Y.2d 39,172 N.Y.S.2d 129, affirming 2d Dept., 2A.D.2d 862, 156 N.Y.S.2d 1010; Sitgreaves v. Board of Adjustment of Town of Nutley, 136 N.J.L. 21, 54 A.2d 451; People v. Miller, 304 N.Y. 105, 109, 106 N.E.2d 34, 36. In the Miller case (supra, 304 N.Y. at page 109) it was pointed out that the rule which permits the continuance of nonconforming uses is applicable only to avoid rendering valueless substan- tial improvements or businesses built up over the years with resultant serious financial harm to the property owner, and does not extend to a purely incidental use of property for recreational or amusement purposes only. 100 See, e.g.: New Jersey: Krul v. Board of Adj., 122 N.J. Super 18, 298 A.2d 308 (1972), affd, 126 N.J. Super 150, 313 A.2d 220 (1973) (holding that building destroyed by fire, which was the main structure of a complex housing plaintiff's business, came within statute authorizing continuation of a nonconforming use or structure by repair of restoration after partial destruction). New Mexico: Las Cruces v. Neff, 65 N.M. 414, 338 P.2d 731 (1959) (mere temporary suspension of nonconforming use by forces beyond owner's control did not constitute abandonment or discontinuance under ordinance). New York: Brous v. Town of Hempstead, 272 A.O. 31, 69 N.Y.S.2d 258 (2d Dept. 1947) (cabanas destroyed by hurricane could be replaced). Rhode Island: Bates v. Stiteley, 84 R.I. 458, 125 A.2d 108 (1956) (owner could resume nonconforming use on lots after buildings thereon where destroyed by hurricane). See also: Pennsylvania: Schuylkill Haven v. Zoning Hearing Board, 514 A.2d 282 (Pa. Commw. Ct. 1986). (M11thew Bender & Co., Inc.) (Rel.32-2191 Pub.84S) .J ) ( ' ,, ' ~ i I' ,, :.i I ( ' I I ". I ~".I I ' ' ,l I I I I , I ( ,;· I~ " ("' ~ ·. ,·,i . I" 41-145 NONCONFORMING USES § 41.03(6) York appellate court concluded that the mere closing of a restau- rant to the public for reconstruction after a fire was not a discontinuance of a nonconforming use as a matter of law under the village ordinance. The court reasoned that since the village had authorized a building permit for the reconstruction, which was completed within the prescribed time period, the restaurant owners could resume the prior nonconforming use."' Many zoning ordinances, however, specifically terminate the right to replace a nonconforming building where a substantial portion, or more than a certain percentage of the value, of a building is destroyed by fire or other cause.112 Moreover, as illustrated by a New York appellate court's decision, the right to restore a nonconforming use may be subject to time restrictions by ordinance. In the New York case, a town ordinance provided that if a nonconforming structure was de- stroyed by fire, reconstruction of the use had to begin within one year of the destruction in order for the use to be continued. According to the court, the filing of a building permit application did n·ot satisfy the initiation of construction requirement pursuant to the ordinance since the issuance of a permit was only a prerequisite to commencing reconstruction. Significantly, the court's determination was expressly made withou,t prejudice to the owner's applying for a variance.'"• The Rhode Island Supreme Court, however, unanimously struck down a municipal zoning ordinance that provided that any ~onconforming building destroyed to more than eighty percent of its replacement value by fire or other casualty should not be reconstructed unless reconstruction was commenced within a twelve-month period after date of destruction, and that such reconstruction be diligently pursued until completion. The court concluded that the absolute time restrictions of the ordinance were void because they were in derogation of rights conveyed by the state in iis enabling legislation.' .. 111 Hoffman v. Board of Zoning & Appeals, 155 A.D.2d 600, 547 N.Y.S.2d 657 (1989). . •02 See§ 4L03'(5J• supra. "•Smith v. town of Penfield, 115 A.D.2d 262, 495 N.Y.S.2d 841 (1985), 11• M.ll:-r. Conslr. Corp. v. Edwards, 528 A.D.2d 336 (R.I. 1987). <Manhcw Bender & Co .. Inc.) (Rel.32-2191 Pub.84S) . ' '· :',I'• <, . ~! -~··' ... ,, '•' :·;11 • • § 41.03161 ZoNING AND LAND UsE CONTROLS 41-146 Some ordinances provide for a permissible repair fotITl~fa that varies the time in which repairs must be initiated or completed depending on the degree of damage to the nonconforming struc- ture. For example, in one case, a New York village ordinance provided that if a nonconforming building was damaged to the extent of fifty percent or more of its real value, it could be replaced as long as substantial reconstruction was commenced within one year after the damage. Otherwise, the property was required to be occupied thereafter as a conforming use. Since the property owners in the New York case did not not undertake any actual reconstruction, not only in the one year after the fire, but also in the twelve months after a building permit was granted, and because the only reconstruction during this time was limited to the boarding up of the building, clearing debris and miscella- neous means of protecting the building, the court held that the 12-month time pe1iod restricted the plaintiffs rights to replace the nonconforming structure."• Significantly, in another New York case, an appellate court found that it was reversible error to hold that the fire destruction of one of two multiple-family buildings resulted in the forfeiture of a nonconforming use pursuant to a local zoning ordinance that provided that nonconforming structures damaged to at least fifty percent of their value could not be rebuilt except in compliance with current ordinances. Jn this case, two apartment buildings were owned and operated for more than fifty years as a single complex on one parcel, with single ownership and common access and parking facilities. The court noted that the mere fact that the undamaged building was economically viable without the damaged building was not determinative of whether recon- struction violated the ordinance. The court also pointed out that the crucial focus in such an inquiry is the nature of the use of both buildings located on the property .... Where a state condemns some land on which there is a noncon- forming business, the question is raised whether the owner can lawfully be barred by a local zoning ordinance from moving his operations to another part of the property. A Minnesota court 111 Frankel v. Boycott, 118 A.D.2d 645, 499 N.Y.S.2d 799 (1986). 100 Pelham Esplanade v. Board of Trustees, 154 A.D.2d 599, 546 N.Y.S.2d 427 (1989). (f.bllhew Bender & Co., Int.) (Rel.32-2191 Pub.845) '' ' ... '''.'') f ·''I ··' ___ ,;> '··~ -· "'''" 1.41 ~ '' i" . '·! ! ,, !'.''! •' ' ,i· 'l' ,, < '. t'. I ' ,1;1 •i ' ; , .,, ·.-] ! ~. i 'I' ; ~ I :1 ,!i ·I ' ,l·i!'i ii ! • ... ;. c , .. . ,-~ .;I 'I !14 '" ,, I ,·'1, ':1 I .{':i· :}; t~ : ;·· \' '::, :--·: 41-147 NONCONFORMING USES § 41.03(6) answered this question in the affirmative, holding that a contrary interpretation would amount to an unreasonable, i.e., unconstitu- tional, restriction on the right of use of private property.1•1 Similarly, a later Minnesota case held that where a nonconform- ing building was substantially destroyed by condernnation, addi- tional expenses incurred by the owner in complying with existing 197 See Connor v. Township of Chanhassen, 249 Minn, 205, 81 N.W.2d 789 (1957). The court stated in pertinent part (81 N.W.2d at 796-798): We are presented with the question as to whether the fortuitous exercise of the sovereign right of eminent domain may operate to bring into play the prohibition of section 1 l(a) of the ordinance so as to deprive the plaintiffs of their vested interest in the use of the premises for the purpose of carrying on an established business. It is true the plaintiffs were compen- sated by the state for the property taken from them; but it does not follow that such compensation included the loss of their business with its goodwill. There is nothing in the record to warrant the assumption that the price paid ·for condemnation included as well the compensation to plaintiffs for the loss of the right to continue their business. The state, on taking land for a public use, is not required to pay the owner for expense of removing his business to another place, or for damage from interruption of business and good will. [Citations omitted]. The sovereign right of eminent domain which autho'rized the taking of property for public use also contemplates compensation for such taking. The police power, however, which is authority for the ordinance in question, operates in the interest of public welfare by restricting an individual in the use of his property with no provision for compensation for loss. State ex rel. Beery v. Houghton, 164 Minn. 146, 204 N.W. 569, 54 A.L.R. 1012 A right to conduct a business, together with the right to the goodwill thereof, is property within the due process cJause of the constitution. [Citations omitted.I This court has held that goodwill may be regarded as personal property incident to the business to which it is attached and may be a subject of substantial value because of the reasonable expectation of its continuance. ·[Citations omitted.) The police power, as expressed in an ordinance, is subordinate to the constitution which is the supreme law of the land. U.S. Const. art. I,§ 10; Id. art. VI; Minn. Const. art. I, § 7; 16 CJ.S., Constitu- tional Law, § 196; 12 CJ., Constitutional Law, § 440. We think th_at section l l(a) of the ordinance insofar as its interpretation would deny the plaintiffs the right to continue the operation of their business on the remain~er ·of their property constitutes an unreasonable police regulation restricting the right of use of the plaintiffs' property for business purposeS.con.tr~ry to the provisions of the constitution. [Citations omitted.) (Mauhcw Hender & Co .• Inc.) (Rcl.32-2191 Pub.84S) • • § 41.03161 ZoNING AND LAND USE CONTROLS 41-148 -... :. restrictions could be considered in determining tl)e· property's market value after the taking.10• (el-Temporary Cessation of Use The temporary cessation of nonconforming use does not, in the absence of a contrary statute, constitute abandonment of such use.10• Thus, there is no abandonment where interruption of the HB See State v. Pahl, 254 Minn. 349, 95 N.W.2d 85 (1959). Condemnation by the state caused the substantial destruction or a building which did not conform to a sixty-foot setback provision of a municipal zoning ordinance passed after the building was constructed. The owner had to comply with the new setback provision because an ordinance prohibited the continuance or a nonconforming use where a building was "substantially destroyed." The court held there was a "substantial destruction" within the meaning of the local ordinance. The court based its decision on the fact that the condemnation "took" the front 1,hirty-five feet or a building 133 by 200 feet and that the' "taken" portion included all the important components, including a lavatory, display room, offices and lunchroom and the balance or the building (consist- ing or a warehouse). 100 See, e.g., Mclay v. Maryland Assemblies, Inc. 269 Md. 465, 306 A.2d 524 (1973) (there was no abandonment or nonconforming manufacturing use where there was no production at plant for more than two years because or lack or orders; there was no change in the buildings, no equipment was removed, and the office remained open). See also: Alabama: Quinnelly v. Prichard, 292 Ala. 178, 291 So. 2d 295 (1974) (temporary interruption of nonconforming use without substitution of a ;•r. ::1: conforming use or without a definite and substantial departure from previous "'•· ,., ) .... :. 'J ' __ ,, ... / ' !','; I . i ~ " ·: .. ~1; I'' .,, 1' \, " " ~~" ' ' ''. .··.' .. . · :.: !:~·! existing conditions caused by accident or unpropitious circumstances does not ,:./;~:;i :,~~ii'!'! terminate the right to resume a nonconforming use). :::-. ~ ·. : i}i.J• : .'.'/ Illinois: City or Des Plaines v. LaSalle Nat'l Bank of Chicago, 3 Ill. Dec. 't . ,:/ ·.•: .. ,11 ,,11 513,358N.E.2dll98,1202(1976)(merecessationofusewillnotnecessarily i(\' 'I['.·.•• :}}(: .·.'.·!'; .• ~1·.:.:.t.'f ~~a~~~~ ~~:su~: ~~~: ~~ ~~~~n~t~a~;dl~~~~o;,;~~gr~i"ir:~af~'.u~:t~n~~~a:~ <:;~,:) r\ ;.~ ~l;e ··{'!' ' , , Ridge, 110 Ill. App. 2d 404, 249 N.E.2d 681 (1969). c:;.; i· · ''1 ' !ii,,]: \{i or~e~~~~~~~;:~;·~:Hc:'~~~~ ~eJ~s~~i~1~e~~:: ;:!~~~7:~ ~t~~~;~:~~~ ~.·;,· .. ,i.':··.' 1.1!·,'.',/ :. :.:'.·i·'·Ji·.(.~ ..... ~.~.::::, ·.,.-:: 1 : 1 ,!1:;;:· cessation of the use). ,~ _1 • ' ' ~ :< ~ ~:' !tii\: ·if,. 52~~~~11)~t~:~:;~r~:':~::~~i:,i;,d!~~h:~~~~~~~r!~~:~~e4:.;.1s9:o~~~~i,T?h !·.· .. '· t!i' . :::!';,": ':~"tl abandonment of that use). ) ·, ! ~ii:.··),, ·'·ii"; ; : ·[ l Rhode Island: A. T. & G., Inc. v. Zoning Board of Review or North Smith-,·~. ,1,·, 11 • .,., · ,• 11' field, 113 R.I. 458, 322 A.2d 294, 297 (1974) (cessation ora use for some c 'Iii," j';;i.'. ~·:: l period or time prescribed in an ordinance will not, standing alone, support !1 ,' · ·' 1 , r::1i ;, · · I. ,I H (M11thcw Bender & Co .. Inc.) (Rcl.32-2191 Pub.845) 1·.I , 1'' .' .: ;. '·;:ii }.P· , ·: 'b !I'~ i : ' ··.·.:I '··· : .· .1 " 1".· , . ,_,. ··1''111 ',,1:. :~··.-.i'I . ·~ y r. ·, '"ll/i"''l,1:1· ·~ ' l'f i·1,.::~ -: ,; {1~· I} I ~ r~ .· , 1'1 ,~ I ' • · ( I .. i! t II ' 1, ;·(;· ~.fi./ 1:,, ! .' :t~ !:.i·:; #ft' : ': 1{!,ii,r i ! ·::11i I ;r i 1': 1, : d' ~ l,'. 'l',!,i it: t,/1~ .. ,,lm': ' f: (J,i r·:l:~·l 11,l H: '~,i''.' :),p ;~::r [~; 1": a ITf ,i' i ·1" ' i: 1' ·~~· ~ ~ ~ ' '1 l~l'i'~ I '1IR~· ul 1!Q' ,fl ·1·~ I~ '1'J:1 ,11'~ ~ I 'n 1·~··11 I "~ 1ff'.·~~!~ ~~ 1,fl,11· . i~::.,r t:I~ 1~i'ii1!11~11!, .. f:~:1~\1l111.,1, lm11~·1;, ii! ' .. ·~:t~if.l;]:lij1:~r1 ··~:I ,11,1 11,; ii :::;,~~~1 :~11 ··1 ·~ ;.'l~;l:;t '! .. ··!I 1~' 'I t-1i1 ,""·''fr'· q 11~, 1 ,,,1 1.,11 .111 ~ 1 :, h :Lt ·~1,,1~ ti'iA~ 1h ..... · ,.,, .111,"'jtl ,.11iw1•.; ~~.1 i' 1 .. (1j·H: i·!'i.: lii~1 w.! .:I.~~ ·:1:~,. ~,:: ~:,\:~1i:,l·1W~'1 1 1:;:.J~ ,u.;·:· .. ff i:: 1:.J-~.;l1\1 ·;1 : ,'·:'lfti ;ti! ,];f;J;*·l:1·;·i 1:ri!·t~I;~ .:J:'1,i1'J, ff~flti ::' .. '.r:. J • 1'.!1 1 1ln .. ~ .1 -1 11 ~ ~ ,/1~1 .'~ ~.1 ~11 .!' l ~~ ~~ ~ J' ;1'~~1 ·i.lJt, ~ ,, ·:,.", r11 1 : ~ ,,l ,~r., 1:1~~· '' I .i~ I i··11~ ~k .~I JKt' ', j.~!' ~·~ r~!i J ,11 l~ ·~1·t,J, I!,' t~• I tf, ~l.f ~ ~~t ,1 ~t J I I vt; _'i,f_\·/1 ' 1 1~·1 lf 111 1; ld'ifrirl/1~1 1 J/~··f .. ~.11~H'1 !1'''11' Ilt 1 !1JlI~r. }~,~~ :~·f·~· ~~1 11 ~.~t i.1~~,~~.J'Ll~1 11_ t~' -.-:~ •'' ' " , .... , :; r :·- ' ~· ,, I :~ ,,1 ;.1 ; ;.:i I :.:' I r I I 1'1'; ,,;. .. , · I'! (' ~·· ' . . ' . . ' .. , I .. ,1) ,1·\' ·,1 :; ! 1 I I (, .,., , (;·, · .. ··· ' " ! ~. 41-149 NONCONFORMING UsEs § 41.03(6( use has been caused by financial difficulties;>•• efforts to lease or sell premises for a nonconforming use;••• or the repair••• or (Text continued on page 41-151) a conclusion that the use has been terminated), South Carolina: Friarsgate, Inc. v. Town of Irmo, 290 S.C. 266, 349 S.E.2d 891 (1986) (developer's suspension operations held warranted and not an abandonment; developer was justified in not constructing five condominium units where town official threatened to institute a suit to stop further construc- tion). See generally California Car Wash v. Zoning Hearing Board, 510 A.2d 931 (Pa. Commw. Ct. 1986). For a discussion of ordinances which prohibit resumption of a nonconform- ing use after expiration of a specified time period, see§ 41.03[6J(c] supra. 200 See, e.g., Southern Equip. Co. v. Winstead, 80 N.C. App. 526, 342 S.E.2d 524 (N.C. Ct. 1986). In this case, the court held that an owner's temporary failure to operate land classified as a nonconforming use did not cause the property owner to forfeit the nonconforming use when business was resumed shortly thereafter and the business was not stopped with the intent of terminating operations. The applicable ordinance provided that noncon- forming uses were forfeited when such uses ceased for any reason for a period of six months of more. Due to a slump in business, the concrete mixing plant at issue was not operated for more than six months, but the plant, equipment, inventories and utilities were maintainec) as before, and operations could have been resumed "within two hours." Under these circumstances, the court construed the word "cease" to mean "terminate business,'' rather than to simply temporarily discontinue business operations with no intent of end all .: operations, and held that the property owner's use did not cease within the meaning of the ordinance. See also Hammond v. City of Chicago, 139 Ill. App. 3d 98, 487 N.E.2d 87, 93 Ill. Dec. 643 (1985) (halting ofa nonconforming use found not an abandonment since stoppage was due to a bankruptcy proceeding which lasted about one year and zoning board's policy was not to not allow discontinuances if property was tied up in litigation); People v. Park Ridge, 110 Ill. App. 2d , 404, 249 N.E.2d 681 (1969) (closing of restaurant because of filing of bank- ruptcy did not constitute abandonment of a nonconforming use where subse- : quent purchaser some months later applied for permit to remodel restaurant) . See generally National Lumber Products Co. v. Ponzio, 133 NJL 95, 42 A.2d 753, 755 (1945). 201 See. e.g., Dobbs v. Board of Appeals of Northampton, 339 Mass. 684, 162 N.E.2d 32, 33-34 (1959) (court, after noting that a finding of discontinu- ance of a noriconforming use requires evidence of abandonment-that is, intent to aban16n ~nd of voluntary conduct carrying that implication-held that the owner s'.itte111pts to rent the property for business use rather than to conyert Jt.fo residential use indicated a lack intent to abandon the former use). ·.·7· See also: (Mauhcw Bender & Co., Inc.) (Rel.32-2/91 Pub.845J ... ',:1 ;·'.:' ,, • • § 41.03(61 ZoNING AND LAND USE CONTROLS 41-150 ·4.,;. Connecticut: Magnano v. Zoning Board of App., 188 Conn. hs, 449 A.2d 148 (1982) (a nonconforming gasoline station use deemecj not discontinued, although the owner's predecessor in title had ceased to operate the station for over one year and the ordinance had a one-year discontinuance time limita•;nn provision, since there was unrefuted testimony that the prior owner had sought to sell the property during the entire period). Illinois: McCoy v. Knoxville, 41 Ill. App. 2d 378, 190 N.E.2d 622 (1963) (use of property as a filling station had been valid nonconforming use and property owners, after suspension of the station's operation by lessees and termination of the lease, had made numerous attempts to lease or sell property as a filling station; court held there was no abandonment or discontinuance of preexisting nonconforming use for two year period within zoning ordinance which provided that premises could only be used on conformity with zoning regulations in the event a nonconforming use was discontinued for two years or more). North Dakota: Minot v. Fisher, 212 N.W.2d 837 (N.D. 1973) (zoning provi- sion for termination of nonconforming use discontinued for two years did not, apply where interruption was caused by flood damage soon after tenant vacated, repairs were required and it appeared there was no lack of diligence on part of owner to find a suitable tenant). Texas: Town of Highland Park v. Marshall, 235 S.W.2d 658, 664 (Tex. Civ. App. 1950) (the mere cessation ofa nonconforming use for a reasonable period does not by itself work an abandonment; this is so whether the building is, permitted to remain vacant or is temporarily devoted to a conforming use with intent that the nonconforming use be resumed when opportunity later arises; moreover periods of interruption due to lack of demand, inability to attract a tenant, and financial difficulty do not change the character of use). Contra: City of Chicago v. Cohen, 49 Ill. App. 3d 342, 364 N.E.2d 335 (1977) (a commercial legal nonconforming use was involuntarily discontinued for a period of six consecutive months specified in zoning ordinance because of the owner's inability to find a tenant; the court held that thereby forfeited·· his right to such use). And see generally, Annot., Right to Resume Noncoeforming Use of Premises After Involuntary Break in the Continuity of Noncoeforming Use Caused by Difficulties Unrelated to Governmental Activity, 56 ALR3d 14. 202 See, e.g., City of Las Cruces v. Neff, 65 N.M. 414, 338 P.2d 731 (1959) (where sign was damaged by wind, the mere temporary suspension of the use was from causes beyond the control of owner and did not constitute an abandonment or discontinuance within the meaning of a zoning ordinance; thus, there was no termination of owner's right to nonconforming use of property). See also: Alabama: Board of Zoning Adj. of Lanett v. Boykin, 265 Ala. 504, 92 So. 2d 906 (1957) (remodeling or repairing of dwelling showed intention to continue and not to abandon a nonconforming use). North Dakota: Minot v. Fisher, 212 N.W.2d 837 (N.D. 1973). (M111hew Bender & Co .. Inc.) (Rel.32-2191 l'llb.84.5) , ..... I, t) ·.~·· .... ''.: " . 'o. I '' ! i I·,: " ':. ... ,.; I : I ! ~" ·'::' ·l. ·'·'. (' 41-151 NONCONFORMING USES § 41.03(6) remodeling•0 • of a building. The prevailing view is that where the cessation or interruption of a nonconforming use is due to war or other emergency condi- tions, or particularly where the cessation is mandated by federal or state law, there is no discontinuance or abandonment of such use so as to preclude its resumption.••• A Massachusetts court, 203 See Diggs v. Wilson, 25 N.C. App. 464, 213 S.E.2d 443 (1975). The city issued a permit to alter and remodel an existing building, without setting a time period as to when the remodeling was to be completed. The court held that the closing of the business to the general public while the remodeling process was being completed did not constitute a "discontinuance" of a nonconforming use within the meaning of an ordinance which provided that ifa nonconforming use was discontinued for a continuous period of more than 180 days, any future use of the land would have to conform to the zoning ordinance. " In general, temporary cessation of a nonconforming use will not constitute an abandonment of such use where the evidence (e.g., surrounding circum- stances and statements of the owner) clearly shows an intention not to abandon the use. See, e.g., Morin v. Board of Appeals of Leominster, 352 Mass. 620, , 227 N.E.2d 466 (1967) (no forfeiture of nonconforming use of barn where nonconforming use existed as to dwelling and barn and was subsequently carried out only in the dwelling); Quinnelly v. Prichar4, 292 Ala. 178, 291 So. 2d 295 (1974) (no abandonment of nonconforming use of property as commercial dirt pit). But see§ 41.03[6J[c] supra. 20• See, e.g., In re Appeal of Assoc. Contractors, 391 Pa. 347, 138 A.2d 99 (1958) (use of office building located in residential zone as dwelling during wartime housing shortage did not constitute abandonment of the nonconform- ing business use so as to preclude its resumption). See also: Florida: Crandon v. State, 158 Fla. 133, 28 So. 2d 159 (1946) (provision of zoning resolution that discontinuance of a nonconforming use for a period of six months precluded its subsequent reuse did not bar reopening of nonconforming airport discontinued during war by civil aeronautics author- ' ity). New Jersey.: Haulenbeck v. Borough of Allenhurst, 136 NJL 557, 57 A.2d 52 (1948) (nonconforming hotel use not abandoned by army's occupancy during war). New York: Gauthier v. Village of Larchmont, 30 A.D.2d 303, 291 N.Y.S.2d 584 (1968) (fact'*~' bar was not in use when zoning ordinance was enacted during period:of prohibition did not deprive it of status as a vested noncon- forming'llse "where principal use of property as a hotel was in existence prior to zoning ordinance and was not abandoned). (Manhcw Dt:ndcr & Co .. Inc.) (Rel.ll-2191 Pub.84S) • • § 41.03(6( ZoNING AND LAND USE CONTROLS 41-152 for example, held that a printer who had used a re~ideifo~ and barn for a one man printing office did not abandon s~ch" noncon- forming use when he entered military service.20• : · There have, however, been several decisions to the contrary.208 A New York court, for example, held that an ordinance which provided that nonconforming uses could not be resumed after their discontinuance for a period exceeding twelve months barred a gasoline station from resuming operation after an eight-year period.207 The court reached this result even though the nonuse was caused by World War II and there was no intent to abandon the business.208 200 See Morin v. Board of Appeals of Leominster, 352 Mass. 620, 227 N.E.2d 466 (1967). See also Cleveland Supply Co. v. Garfield Heights, 102 Ohio App. 69, 2 Ohio Ops.2d 65, 136 N.E.2d 105 (1956) (no abandonment of nonconforming use under ordinance where mine producing shale for brick manufacturing was, not being operated on date it was placed in residential zone due to governmen-, ta! restrictions on building materials during Second World War). 208 See, e.g., Harz v. New Orleans, 216 La. 849, 44 So. 2d 889 (1950), where the appellate court found that the evidence sustained the trial court's finding that the right to operate a nonconforming pharmacy in a residential district was lost under the provisions of the applicable zoning ordinance. The owner in 1943 closed the establishment "for the duration" of the war and did not apply for a city or state license to operate the pharmacy until 1949. The zoning ordinance authorized an owner to continue an existing use provided the property did not become and remain "vacant" for a continuous period of six months. The word "vacant" was defined to mean a building which was not bona fide or used for a nonconforming commercial purpose for six months. The court held that the facts clearly indicated an abandonment of the drugstore business for the duration of the war. See.also Franmor Realty Corp., v. La Boeuf, 201 Misc. 220, 104 N.Y.S.2d 247 (1951), qff'd, 279 A.D. 795, 109 N.Y.S.2d 525, appeal denied, 219 A.O. 874, 110 N.Y.S.2d (1952). 201 Franmor Realty Corp. v. LeBoeuf, 201 Misc. 220, 104 N.Y.S.2d 247 (1951), qff'd, 279 App. Div. 795, 109 N.Y.S.2d 525 (1952), appeal denied, 279 App. Div. 874, 110 N.Y.S.2d 910 (1952). 208 The lower court explained in relevant part (104 N.Y.S.2d at 250-254): The right to resume a nonconforming use after a period ofnonuse depends in most cases on the question of what amounts to an abandonment or discontinuance of the use, and upon the effect of such abandonment or discontinuance under the applicable zoning statute or ordinance. The general rule is that the right of a property owner to continue a nonconform- ing use may be lost through abandonment of such use. However an (M111hcw Dender & C'o., Inc.) (Rtl.32-2191 Pub.845} I " .. I 1·:.-·· JI· . ; ' ~·! ' ti , " ; i,I' ,, ' f;.- " • ' ,,. ,>I /;., ' i ; r·. ! ;i t· ' ~~ .. 41-153 NONCONFORMING USES § 41.03(6( (fl-Right to Resume Abandoned or Discontinued Nonconforming Use Nonconforming uses which have been legally terminated may not, as general rule, be resumed.20• Most zoning ordinances provide that if a nonconforming use is discontinued, any future use of the premises must be in conformance with existing zoning laws.210 abandonment, within the meaning of the rule under consideration, connotes a voluntary, affirmative, completed act. 58 Am.Jur. 1024, Zoning§ 153 and cases cited. Abandonment was defined in Longo v. Eilers et al., 196 Misc. ·909, at page 913, 93 N.Y.S.2d 517, 521, as follows: An abandonment within the meaning of such rules connotes a voluntary affirmative completed act. It means something more than a mere suspension, a temporary nonoccu- j>ancy of a building or a temporary cessation of business. City of Bingham- ton v. Garten, 275 App.Div. 457, 90 N.Y.S.2d 556. An abandonment is the voluntary intentional relinquishment of a known right. There must be a concurring intention to abandon and an actual relinquishment of the right. For a Wisconsin decision sustaining a similarly worded ordinance without proof of abandonment, see State ex rel. Peterson v. Burt, 42 Wis. 2d 284, 166 N.W.2d 207 (1969). See also Fuller v. New Orleans, Dept. of Safety & Permits, 311 So. 2d 466 (la. Ct. App. 1975) (where ordinance provides that intention is not pertinent to abandonment, neither intent to continue a nonconforming use nor makeshift use will preserve nonconforming status). And see§ 41.0316][c) supra. •••See, e.g., Barbarisi v. Board of Adj., 30 N.J. Super II, 103 A.2d 164 (1954) (the original nonconforming use of premises as automobile repair shop was succeeded by an invalid nonconforming rug cleaning business; the original use was held to be abandoned and could not be revived). See also: Colorado: Fishman v. Tupps, 127 Colo. 463, 257 P.2d 579 (1953) (discon- tinuance of trailer camp for period exceeding that permitted by ordinance). Delaware: In re Auditorium, Inc., 84 A.2d 598 (Del. 1951) (ordinance forbid ·resumption of nonconforming use after abandonment for over two years). Maine: Town of Windham v. Sprague, 219 A.2d 548 (Me. 1966) (owner deprived of right to continue nonconforming house trailer use). And see generally, Anno!, Resumption of Noncotiforming Use After Period of Nonuse or of a Different Use From That in Effect at or Before the Time of Zoning, 18 ALR2d 725. 210 See, e.g.: Connecticut: D~(j~~ian v. Zoning Board of Appeals of Bridgeport, 135 Conn. 706, 68 A.2q 123 (1949). Maine; Tow~ of Windham v. Sprague, 219 A.2d 548 (Me, 1966) (removal of house trailer and its replacement by a new trailer located in same spot (Mauhew Bender & Co .. Inc.) (Rel.32-2191 Pub.84S) .), '~ ' ;!, " ,·•, "~ ', \ .' • • § 41.03161 ZoNING AND LAND USE CONTROLS 41-"154 Some ordinances permit resumption of a discontinqed nohcon- forming use where it is resumed as the same class· of use, but prohibit resumption as a nonconforming use of a lower class.211 Other ordinances permit resumption of a nonconforming use where the discontinuance does not exceed a specified period of time.21• constituted abandonment of owner's nonconforming use under zoning ordi· nance; owner was therefor prohibited from resuming such use). Pennsylvania: Bachman v. Zoning Hearing Board of Bern Township, 494 A. 2d 1102 (Pa. 1985) (zoning board found to have properly barred the initiation of a nonconforming use that had been extinguished); Rendi,n v. Zoning Hearing Board of Media, 488 A.2d 391 (Pa. Cornrow. Ct. 1985) (where the owner-occupant had practiced medicine under a nonconforming accessory professional office use until his retirement, his two sons' subsequent use of the office space for a detective agency and security business and his son-in- law's location of a law office in the building were deemed an improper resumption of the owner's nonconforming use); Darling v. Zoning Board of Adj. of Philadelphia, 357 Pa. 428, 54 A.2d 829 (1947) (building formerly used as office for builders, architects and real estate operators could not be resumed as tailoring shop). 211 See, e.g., Luciany v. Zoning Board of Adj., 399 Pa. 176, 159 A.2d 701 (1960); Null v. Power, 391 Pa. SI, 137 A.2d 316 (1958); Darling v. Zoni·ng Board of Adj., 357 Pa. 428, 54 A.2d 829 (1947). In Darling, supra, the Supreme Court of Pennsylvania held that a lower court had erred in directing issuance of a permit for the repair and use .of a vacant building as a tailor shop. 212 See, e.g., Blundell v. West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975) (no abandonment of trailer spaces under ordinance which prohibited reestab- lishment of nonconforming uses discontinued for a period of six months). See also: Maine: Toulouse v. Board of Zoning Adj., 147 ME 387, 87 A.2d 670 (1952). A zoning ordinance which permitted continuance of preexisting nonconform- ing uses defined such uses to include a building erected or replaced within one year after its destruction or removal, and provided for abandonment of such use by discontinuance of the use for one year. The owners of premises in a restricted residential zone and her vendees were held entitled to continue a preexisting nonconforming poultry business on the premises within one year after the sale and removal of a poultry house from the premises, and to erect a new poultry house on the premises upon application within one year after such removal. Pennsylvania: Marchese v. Norristown Borough Zoning Board of Adj., 2 Pa. Cornrow. 84, 277 A.2d 176 (1971) (it was still necessary to show concur- rent overt acts or failure to act which indicated abandonment even though expiration of one year time limit on right to resume nonconforming use was (Manhcw Bender &. Co .. Inc.) (Rtl.32-2/91 Pub.84.S) I : : ') .~J. .. :) ,•.· ·~,_,,, ' i I ' . . 1 '!;'. l.'!'" I '•\ " '.t ' I .... !. ,, i ),. ··.'ij " !' " I, " ' ' I i l ' ! ~ ,·: ' l j ' ' ' ' ·! ! I I ·1 ·\·;· i (i ,..y·· .. "·· ... I ' .·, , \' . : (, \.,, 41-ISS NONCONFORMING USES § 41.03161 presumed upon expiration of designated period). See§ 41.03[6][c) supra. And see generally Annot, "Right to Resume Nonconforming Use of Prem- ises Aller Voluntary or Unexplained Break in the Continuity of Nonconform- ing Use," 57 ALR3d 279. ':<"·. CMaUhcw Dender&. Co .. Inc.} (Rcl.32-2/91 Pub.84S) I' J: .r :! ' ' . ( ;:'. i :'· ··-i•'i ' ,.i. ·:'~' ,·,11 ·1,·: ~-'. " '' . -·., ~ ·:,";:, • • § 41.04(1( ZoNJNG AND LAND USE CONTROI,S 41-156 § 41.04 Termination of Nonconforming Uses Th~i>ugh Amortization · ' · ·« . · ,· (1 (-Policy Considerations and Goals Attempts to achieve the gradual elimination of nonconforming uses through various statutory limitations' have· not proven successful. Despite the many prohibitions on change, expansion and reconstruction, nonconforming uses have not only continued to exist but have prospered.• This problem has been intensified by the development of new methods of building and by greater mobility. These, in turn, have created uses that could not have been anticipated when many zoning ordinances were first adopted.• While most zoning ordinances continue to include the same standardized regulations, some communities have experi- mented with a technique called "amortization," or "tolerance," which has gained increasing acceptance with the courts.• Essen- tially, amortization regulations give the user of a nonconforming use a specified grace period to continue and amortize his invest- ment, after which the nonconforming use must be discontinued . These laws are based on the principle that the property owner 1 See § 41.03 supra. 2 See Babcock, What Should and Can be Done With Nonconforming Uses, 1972 Institute on Planning, Zoning and Eminent Domain 23, 29-30 (SW Legal, Found, Matthew Bender). (See also Holfman v. Kinealy, 389 S.W.2d 745 (Mo. 1965) "preexisting lawful nonconforming uses have not faded out or eliminated themselves as quickly as had been anticipated.) •See Report of the ABA Advisory Committee on Housing and Urban Growth, Housing For All Under Law, 45 (Ballinger Pub. Co, 1978). •According to a report of the American Bar Association (see Housing For All Under Law, n.3 supra, at 45, n.220), present-day zoning ordinances: ... generally limit amortization to open uses involving no substantial structures to uses deemed especially objectionable, like auto wrecking, junk yards, coal storage dumps, and to heavy service establishments not designed for such use. The report continues that such amortization provisions "raise perplexing constitutional issues," citing the leading amortization case of Los Angeles v. Gage, 127 Cal. App. 2d 442, 274 P.2d 34 (1954) See text accompanying ns.19 et seq., illfra. See also Hagman, Urban Planning and Land Development Control Law 154-162 (1975); ALI code, A Model Land Development Code. Art. JV (1976). IMaUhew Bender & Co .. Inc.) IRd.32-2191 Pub.84.SJ I' .. i i . I' L. I i ; " ~' ' " .'I<' i !"' Ii .. . ; J . . .''I • 1' ,,', ' § 41.04(2( ZoNINO AND LAND UsE CoNTROLS 41-158 A number of state zoning enabling acts authorize'municipali- ties to terminate nonconforming uses.• In ·most jurisdictions, however, the authority to terminate nonconforming u8es (through amortization or otherwise) is based on two concepts: one, the general delegation of zoning power to local government entities,•• and, two, the pervasive judicial commitment to the proposition that zoning policy requires the limitation and eventual termina- tion of nonconforming uses.11 Although the amortization technique has become fairly com- mon since the 19 50's, there is little evidence that any substantial number of such nonconforming uses have been eliminated.12 Some amortization provisions are limited to the termination of junkyards and other environmentally harmful or otherwise espe- cially objectionable uses.n Other provisions, which are broader in scope, involve industrial and commercial uses in specified residential districts ... (2(-Amortization Provisions Sustained Where Reasonable The technique of terminating nonconforming uses through amortization has been approved by a majority of courts in· the United States.11 The majority rule is that provisions for (Text continued onpage4/-/61J) •See, e.g.: Georgia: Code of Ga. Ann § 69-835. Illinois: Ill Ann Stat, ch. 24 § 11-13-1. Michigan: Mich Comp. L Ann 5.2933 (termination through condemnation). 10 For a general discussion of the power to zone, see ch. 35 supra. 11 See, e.g., New York: Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160, 331N.Y.S.2d397, 401, 282 N.E.2d299 1972) (" ... the courts do not hesitate to give effect to restrictions on• nonconforming uses . . .. It is because these restrictions flow from ' strong policy favoring the eventual elimination of nonconforming uses"). Idaho: County of Ada v. Schemm, 96 Idaho 396, 529 P.2d 1268 (1974) (nonconforming uses should not be allowed to expand and eventually should be eliminated). 12 See Babcock, What Should and Can be Done with Nonconforming Uses, 1972 Institute on Planning, Zoning and Eminent Domain 23, 30-31, (SW Legal Found Matthew Bender & Co). See also text accompanying ns.2-3 supra. usee, e.g .. Bismarck, N.D. Zoning Ord§ 15.0211(9) (1973). See also n.4 supra. HSee, e.g .. New York City Zoning Resol § 52-14 (1915). 11 See, e.g.: (M111hcw Bender & Co., Inc.) (Rel.32-2191 P11b.845) . ) ·. __,. t .. · :· .··' i'; f ' I' ' ; I I', I ·1 I I i I ' 1:. " ', . '';;11' " ' .. . ~ ·; I I ' I ! ,,· '1 'i ,"i 'I I,''' § 41.04121 ZoNING AND LAND UsE CoNTROLS 41-158 A number of state zoning enabling acts authorize municipali- ties to terminate nonconforming uses.• In most jurisdictions, however, the authority to terminate nonconforming uses (through amortization or otherwise) is based on two concepts: one, the general delegation of zoning power to local government entities,•• and, two, the pervasive judicial commitment to the proposition that zoning policy requires the limitation and eventual termina- tion of nonconforming uses." Although the amortization technique has become fairly com- mon since the 19 50's, there is little evidence that any substantial number of such nonconforming uses have been eliminated.12 Some amortization provisions are limited to the termination of junkyards and other environmentally harmful or otherwise espe- cially objectionable uses. 11 Other provisions, which are broader in scope, involve industrial and commercial uses in specified residential disttjcts.•• Ill-Amortization Provisions Sustained Where Reasonable The technique of terminating nonconforming uses through amortization has been approved by a majority of courts in the United States.11 The majority rule is that provisions for (Text continued on page 4 /-/ 60) •See, e.g.: Georgia: Code of Ga. Ann § 69-835. lllinois: Ill Ann Stat, ch. 24 § 11-13-1. Michigan: Mich Comp. L Ann 5.2933 (termination through condemnation). 10 For a general discussion of the power to zone, see ch. 35 supra. 11 See, e.g .. New York: Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160, 331 N.Y.S.2d 397, 401, 282 N.E.2d299 1972) (" ... the courts do not hesitate to give effect to restrictions on nonconforming uses .... It is because these restrictions ftow from a strong policy favoring the eventual elimination of nonconforming ;uses"). Idaho: County of Ada v. Schemm, 96 Idaho 396, 529 P.2d 1268 (1974) (nonconforming uses should not be allowed to expand and eventually should be eliminated). u See Babcock, What Should and Can be Done with Noncotiforming Uses, 1972 Institute on Planning, Zoning and Eminent Domain 23, 30-31, (SW Legal Found Matthew Bender 8\ Co). See also text accompanying ns.2-3 supra. u See, e.g .. Bismarck, N.Q; Zoning Ord § I 5.0211(9) (1973). See also n.4 supra. · : ••See, e.g .. New York City Zoning Resol § 52-74 (1975). 11 See, e.g.: (M111hcw Bender&. Co., Inc.) (Rel.12-2191 Pub.84S) • • ,., .. ~. ) ·.· i;~ ''rf "·,, ,! .) . ,' " · .. 1 ! I,~ 11, t \ I '' ~ .i 41-159 NONCONFORMING USES § 41.04(2] Federal: Art Neon Co. v. Denver, 488 F.2d 118 (10th Circ.), cert. denied, 417 U.S. 932 (1974); Standard Oil Co. v. Tallahassee, 183 F.2d 410 (5th Cir. 1950), cert. denied, 340 U.S. 892 (1950) (ordinance sustained under Aorida law); SDJ, Inc. v. City of Houston, 636 F. Supp. 1359 (S.D. Tex. 1986), qjfd, 83 7 F.2d 1268 (5th Cir. 1988), cert. denied, 109 S. Ct. 1310 (l 989)(six-month amortization for topless bars found reasonable); Dumas v. City of Dallas, 648 F. Supp. 1061 (N.D. Tex. 1986) (three-year amortization for sexually oriented business sustained). California: People ex rel. Dept. of Public Works v. Adco Advertisers, 35 Cal. App. 3d 507, 110 Cal. Rptr. 849 (1973); National Advertising Co. v. County of Monterey, I Cal. 3d 875, 83 Cal. Rptr. 577, 464 P.2d 33 (1970); Santa Barbara v. Modem Neon Sign Co., 189 Cal. App. 2d 188, 11 Cal. Rptr. 57 (1961); Los Angeles v. Gage, 127 Cal. App. 2d, 442, 274 P.2d 34 (1954) (approval of five-year amortization of plumbing business). Florida: Lewis v. City of Atlantic Beach, 467 So. 2d 751 (Aa. Dist. Ct. App. 1985). Iilinois: County of Cook v. Renaissance Arcade, 122 Ill. 2d 123, 522 N.E.2d 7:1 (1988); Gurnee v. Miller, 69 Ill. App. 2d 248, 215 N,E.2d 829 (1966). Kansas: Spurgeon v. Board of Comm'rs, 181 Kan. 1008, 317 P.2d 798 (1957) (sustained two-year amortization of auto-wrecking business). LOuisiana: State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So 613, cert. denied, 280 U.S. 556 (1929). Maryland: Shifflett v. Baltimore County, 247 Md. I 5 I, 230 A.2d 310 (1967) (two year amortization of nonconforming junkyard sustained); Eutaw Enters. v. Mayor & City Council of Baltimore, 212 Md. 301, 129 A.2d 363 (1966) (eighteen month amortization of check-cashing agencies approved); Grant v. Baltimore, 212 Md. 301, 129 A.2d 363 (1957); Harris v. Mayor & City Council of Baltimore, 35 Md. App. 572, 371 A.2d 706 (1977) (provision sustained); Gough v. Board of Zoning Appeals, 21 Md. App. 697, 321 A.2d 315 (1974) (provision upheld). Nebraska:Wolfv. Omaha, 177 Neb. 545, 129 N.W.2d 501 (1964)(sustained seven year amortization of dog kennels). New Hampshire: Amherst v. Cadorette, 113 N.H. 13, 300 A.2d 327 (1973); Lachapelle v. Goffstown, 107 N.H. 485, 225 A.2d 624, 22 ALR3d 1128 (1964); McKinney v. Riley, 105 N.H. 249, 197 A.2d 218 (I 964)(amortization of junkyards in one year sustained). Ne"! York: Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 402 N.Y.S.2d 359 (1977); Harbison v. Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, I 52 N.E.2d 42 (1958) (limited approval); Somers v. Camarco Contractors, Inc. 24 Misc. 2d 673, 205 N.Y.S:2d 724, qjfd, 12 A.D.2d 977, 214 N.Y.S.2d 650, amended on other grounds and appeal denied, 13 A.D.2d 531, 215 N.Y.S.2d 745 (1961); Ruhm v. C.P. Craska, Inc., Ad2d, 399 N.Y.S.2d 749 (App. Div. 1977) (nonco.nlorming use could not be prohibited by repealed ordinance where procedural safeguards affording opportunity to assert defenses against validity (Manhew Bender & Co .. Inc.) (Rcl.12-2191 Pub.84SJ ;. ! ," • • § 41.04(21 ZoNING AND LAND USE CONTROLS . 41-160 " . amortization of nonconforming uses are valid ifreaspnable.16 For example, a California appellate court noted -that a 120-day amortization period contained in a zoning ordinance was not unreasonable on its face. The court also noted, however, that the party complaining of the zoning legislation has the burden of establishing that the amortization period is unreasonable, and must set forth evidence showing that the period is unreasonable. ofamortization provisions had not been followed by towns); (nonconforming uses may be eliminated by amortization over reasonable period of time); Schroeppel v. Spector, 43 Misc. 2d 290, 251 N.Y.S.2d 233 (1963) (provision sustained); Hempstead v. Romano, 33 Misc. 2d 315, 226 N.Y.S.2d 291 (1.962) (provision invalid). North Carolina: State v. Joyner, 286 N.C. 366, 221 S.E.2d 320, appeal dismissed, 422 U.S. 1002 (1975). Pennsylvania: Appeal of Smith Auto Co., 5 7 Mn LR 188, 79 York Leg Rec 148, rev'd on other grounds, 423 Pa. 493, 223 A.2d 683 (1965). South Carolina: James v. Greenville, 227 S.C. 565, 88 S.E.2d 661 (1955) (one year amortization of trailer court invalid). Texas: Houston v. Harris County Outdoor Advertising Ass'n., 732 S.W.2d 42 (Tex. Civ. App. 1987) (use of amortization formula in zoning deemed an established and valid imposition of police power); White v. Dallas, 517 S.W.2d 344 (Tex. Civ. App. 1974); University Park v. Bonners, 485 S.W.2d 773 (Tex.) appeal dismissed, 411 U.S. 901 reh 'g denied, 411 U.S. 977 (1972) (provision sustained); Corpus Christi v. Allen, 152 Tex. 137, 254 S.W.2d 759 (1953) (provision held invalid). ' Washington: Seallle v. Marlin, 54 Wash. 2d 541, 342 P.2d 602 (1959). · Compare Report of ABA Advisory Commillee on Housing and Urban Growth, n.4 supra ("amortization provisions raise perplexing constitutional issues"), u See cases cited in n.15 supra. See also State v. Joyner, 286 N.C. 366, 211 S.E.2d 320, appeal dismissed, 422 U.S. I 002 (197 5) where, in a decision sustaining a three-year amortization period as applied lo a building salvage yard, the Supreme Court of North C&rolina stated (211 S.E.2d at 325): We concur in the majority rule as above set out that the provisions for amortization of nonconforming uses are valid if reasonable, and reject the per se rule holding all amortization provisions unconstitutional. This assignment of error is overruled. Cf., Oswalt v. County of Ramsey, 371N.W.2d241 (Minn. Ct. App. 1985) (while a municipality could determine the useful life for nonconforming uses and require a cessation al the end of a reasonable amortization period without compensation, where the city chose lo eliminate a nonconforming use under a slate statute on hazardous buildings, but applied the standard contained in a floodplain ordinance, the owner was deemed to have been erroneously denied compensation). (Matthew Bender&. Co .. Inc.) (Rel.)2-2191 Pub.84S) ..,'I• ' ',) . .......,.,, i ' ' I ·" r ' I I I :, f ··1·· ..... '?J ~. ,....,. !' i__:;) ., ,-. ;'" ' €<:1~;:, ·.'· · .. \·r ! '! 41-161 NoNCONFORMIN.P UsEs § 41.04[2) Based on the record, the court concluded that in the case before it, the owner of an adult movie theater had not fulfilled his burden of showing that the amortization period was unreasonable. The court stated that while a .120-day amortization period might be a relatively short period of time for owner to reorganize its business operation, the court was not in a position to determine the reasonableness of the period where the owner presented no evidence to support his position." Moreover, according to the New York Court of Appeals, a zoning ordinance's amortization provisions are valid in the absence of the owner's demonstration that the owner's loss is so substantial as to outweigh public benefits flowing from the exercise of a city's police powers.•• A minority of courts, however, have adopted the rule that amortiza- . tion provisions are per se unconstitutional, irrespective of their reasonableness.•• (Text continued on page 41-163) l7City of Whittier v. Walnut Properties, Inc., 149 Cal. App. 3d 633, 197 Cal. Rptr. 127 (1984). See also Castner v. City of Oakland, 129 Cal. App. 34 94, 180 Cal. Rptr. 682 (1982) (a one-year amonization period applied to an adult bookstore that violated a zoning ordinance was deemed reasonable where: (I) the plaintiff- lessee's lease on the store expired within three months of the effective date of the ordinance; (2) there was no investment in permanent improvements in the property; and (3) the cost of removing nonconforming adult (i.e., x- rated). materials was negligible due to the nature of the materials and the proximity of another adult bookstore also owned by plaintiff which was in conformity with the applicable zoning ordinance). . l8Town of Islip v. Caviglia, 73 N.Y.2d 544, 542 N.Y.S.2d 139 (1989). 10 In the leading case of Hoffman v. Kinealy, 389 S.W.2d 745, (Mo. 1965). the Supreme Court of Missouri invalidated a six year amortization provision which terminated a preexisting use of lots for the open storage of lumber, building materials and construction equipment. The coun stated in peninent pan that: Stated in its simplest terms, amonization contemplates the compulsory termination of a nonconformity at the expiration of a specified period of time, which period is equaled (sic) to the useful economic life of the nonconformity. Katarincic, Elimination of Nonconforming Uses, Buildings, and Structures by Amortization-Concept v. Law, 2 Duquesne Univ. L. Rev. I. The ba~ic iC!ea is to determine the remaining normal useful life of a preexisting nonconforming use. The owner is then allowed to continue his use .f~r ihis perlod and at the end must either conform or eliminate it. Note, 44'Comell L.Q. 450, 453 (I 959). Courts approving the amortization technique as a valid exercise of the police power rationalize their holdings in this fashion: tMauhcw Bender & Co., Ille.} (Rcl.32-2191 Pub.845) • • § 41.04121 ZoNING AND LAND UsE CoNTROLS 41-162 , .. The distinction between an ordinance restricting futuie u~es and one requiring the termination of present uses within a reasonab1e period of time is merely one of degree, and constitutionality depends on the relative importance to be given to the public gain and to the private loss. Zoning as it affects every piece of property is to some extent retroactive in that it applies to property already owned at the time of the effective date of the ordinance. The elimination of existing uses within a reasonable time does not amount to a taking of property nor does it necessarily restrict the use of property so that it cannot be used for any reasonable purpose. Use of a reasonable amortization scheme provides an equitable means of reconcili- ation of the coq.f\icting interests in satisfaction of due process requirements. As a method of eliminating existing nonconforming uses it allows the owner of the nonconforming use, by affording an opportunity to make new plans, at least partially to offset any loss he might suffer .... If the amortization period is reasonable the loss to the owner may be small wlien compared with the benefit to the public. City of Los Angeles v. Gage, 127 Cal. App. 442.'274 P.2d 34, 44; Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363, 368 ... Although the retord before us leaves much to be desired by way of detail, it is sufficient for the purposes of this opinion to say that the record adequately shows that instant relators' use of their lots may not be brushed aside and disregarded as 'relatively slight and insubstantial.' Contrast People v. Miller, supra, 106 N.E.2d at 35, 36, involving the harboring of pigeons as a hobby. In our view of the matter, termination of relators' preexisting lawful nonconforming use of their lots for the open storage of lumber, building materials and construction equipment would constitute the taking of private property for public use without just compensation in violation of Article I, Section 26, Missouri Constitution of 1945-a taking not to be justified as an exercise of the police power which is always subject to, and may never transcend, constitutional rights and limitations. [citations omit- ted). 389 S.W.2d at 750-755. See a/so: Federal: People Tags Inc. v. Jackson County Legislature, 636 F. Supp. 1345 (W.D. Mo. 1986) (holding that an amortization period of 120 days as provided for in county ordinance was an unlawful means of eliminating current nonconforming uses; this provision violated the state constitution's bar against taking property for public use without just compensation). Connecticut: JamesJ.F. Loughlin Agency, Inc. v. West Hartford, 166 Conn. 305, 348 A.2d 675 (1974) (where slate statute provided for continuance of nonconforming uses, local ordinance requiring conformance of nonconform- ing signs within five years was invalid). Indiana: Ailes v. Decatur County Area Planning Comm'n, 448 N.E.2d 1057 (Ind. a. App. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1593 (1984)(three and five year amortization periods for discontinuance of nonconforming (Mauhew Bender & C'o .. Inc.) {Rcl.32-2191 Pub.845) 1.· ' '\ i··': -~·· ' " . I I~ •. ,. '/ . ~' ·'. . .. ,,:; t (. r ~:~ ~ f" ~ :· ,' ' >. ;-·. ; _-~ \., :- ,'i 'i i'-1 ·II 41-163 NONCONFORMING USES § 41.04(21 The view of the majority of the courts as to the constitutionality of amortization ordinances was graphically illustrated by a Texas appellate court's decision. The Texas court upheld the constitu- tionality of such ordinances based upon the rationale that an involuntary termination of a nonconforming use, followed a period of amortization for recovery of the owners' investment, does not constitute a taking in the constitutional sense. Moreover, the court seemed to note approvingly that under the ordinance in the case before it, owners were permitted to recover the full value of their nonconforming structures, an amount equal to their actual investment in the structure rather than its market value, or any other measurement of full value. However, the court also stated that the use ofamortization for the termination of noncon- forming uses was not dependent upon precise cotbpensation for owners' monetary losses since the public good outweighs private losses. Thus, as long as the amortization formula is reasonable, .there can be no unconstitutional taking of property.•• In determining reasonableness, the courts have generally sought to ,balance the public gain to be derived from' the particular provision against the private loss sustained by the property owner.21 In the leading amortization decision of Los Angeles v. (Text continued orr page 41-165) junkyards in residential area deemed unconstitutional). Kentucky: Paducah v. Johnson, 522 S.W.2d 447 (Ky. 1975) (ordinance providing for amortization of nonconforming junkyard within two years was invalid because of conflict with statute which protected uses in existence when zoning ordinance was adopted). Michigan: Central Advertising Co. v. Ann Arbor, 42 Mich. App. 59, 201 N.W.2d 365 (1972) (ordinance providing for sign amortization was invalid); DeMull v. Lowell, 368 Mich. 242, 118 N.W.2d 232 (1962) (three year amortization provision was invalid because it was not authorized hy statute). New Jersey: United Advertising Co. v. Raritan, l l N.J. 144, 93 A.2d 362 (1952) (provision of municipal zoning ordinance regulating outdoor advertis- ing business, which required removal of nonconforming signs within two years of effective date of ordinance, was invalid because It conflicted with statute providing for continuance of nonconforming uses). 20 Murmur Corp. v. Board of Adj. of Dallas, 718 S.W.2d 790 (Tex. Civ. App. 1986). '· · ' 21 See, e.g.:: Califol'!lia.:LosAngeles v. Gage, 127 Cal. App. 2d 442, 274 P.2d 34 (1954). Illinois: Oak Park v. Gordon, 32 Ill. 2d 295, 205 N.E.2d 465 (l 965) (while holding village amortization ordinance invalid as applied, the court observed (Matlhew Bender &. Co., Inc.) (Rel.32-2/CJ I Pub.845) • • § 41.04(2( ZoNJNG AND LAND USE CONTROLS 41-164 that each case must be judged individually, giving due intere~t to the public and individual property owners). • :· .. Iowa: Board of Supervisors v. Miller, 170 N.W.2d 358 (Iowa 1969) (recent judicial decisions reveal a pronounced trend toward elimination of noncon~ forming uses through amortization; the most common test employed in determining the reasonableness of the liquidation period is based upon a balancing of public good against private loss). New Hampshire: McKinney v. Riley, 105 N.H. 249, 197 A.2d 218 (1964) (in a decision sustaining the validity of a zoning ordinance providing that junkyards could not continue for more than one year after the effective date of the ordinance without a specific permit, the court stated that amortization provisions have been sustained where on balance the public benefit outweighs private injury). New Mexico: Temple Baptist Church v. City of Albuquerque, 646.P.2d 565 (N.M. Ct. App. 1982) (in remanding for an evidentiary hearing on the issue of the reasonableness of a five-year amortization period provided by an ordinance that regulated the size, height and number of signs, the court pointed out that the reasonableness of amortization periods requires a balancing of the public gain against the individual loss). New York: Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 402 N.Y.S.2d 359 (1977). In Modjeska, supra, the owner of outdoor advertising signs sought a judgment declaring unconstitutional provisions of the New York Environmen- tal Conservation Law which prohibited the erection of advertising signs in certain parks without a permit and required the removal within six and one half years of signs not conforming with certain regulations. In holding ·that the question of the reasonableness of the statutory six and one-half ·year amortization period required a remand, the court stated in pertinent part (402 N.Y.S.2d at 365-368): Although we do not believe that plaintiff is entitled to monetary compen- sation for the removal of nonconforming billboards, we are of the opinion that a regulation requiring the immediate removal of billboards without compensation in some instances might be an unconstitutional deprivation of property. In reaching this conclusion, we are not unmindful of our previous decisions in which we have held that outdoor signs and billboards located along the New York State Thruway may be prohibited and removed without compensation. [Citations deleted] These decisions were premised, however, upon concern for the safety of motorists traveling along the Thruway. While it is true that aesthetics, in itself, constitutes a valid basis for the exercise of the police power just as safety does [Citations deleted) the public benefit gained from the immediate implementation of a regulation enacted pursuant to the police power to effectuate these objectives may not necessar- ily be of equal significance. Certainly, a billboard which serves as a menace to the safety of motorists should be removed without delay. Jn such a case, (Manhrw &ndcr & C'o .. Inc.) (R(l.32-2191 Pub.84S) .'., , ·,.r J.i) ·-!· I:, · '' ' " ' ,, '·· ,. i i f"°' '1;, ' ! ! : I .I ' I I ' I ' ·i,11 ' ' i" 41-165 NONCONFORMING USES § 41.04(2) Gage, 22 the California court articulated the basic reasoning behind the balancing test. The facts indicate that the defendant constructed a residential structure on one of two contiguous lots, legally using the second floor and half of the first as a private living facility. The remainder of the first floor, facing the street, was used as an office for a plumbing business. In a garage located to the rear, and on an adjoining lot, the defendant erected storage bins and racks to hold a supply of pipe. The structure and the pl.um bing business were allowed by the original zoning ordinance. Under a subsequently enacted ordinance, however, the open storage of materials was prohibited, although the nonconforming uses were allowed to continue. Five years later, Los Angeles enacted a comprehensive zoning ordinance, which reclassified the area where the defendant conducted his activity to a multiple residential zone, and provided for the termination of all the public benefit gained by immediate implementation of an exercise of the police power far outweighs the concomitant financial injury suffered by the affected billboard and property owners. In contrast to a safety-motivated exercise of the police power, a regulation enacted to enhance the aesthetics of a community generally does not provide a compelling reason for immediate implementation with respect to existing structures or uses. True, the public will benefit from a more aesthetically be~utiful community, but absent the urgency present in a safety-motivated regulation, the immediate benefit gained does not outweigh the loss suffered by those individuals adversely affected. As always, an exercise of the police power must be reasonable. [Citations deleted.) While weds:> not believe that compensation is required, we do believe that it would have been unreason- able to require, solely for aesthetic purposes, the immediate removal of the billboards prohibited in the present case .... Because of the procedural posture in which this case comes to us, we are unable to determine whether, as applied, the six and one-half year amortiza- tion period provided in ECL 9-0305 is unreasonable. It is clear that in granting summary judgment for the defendant, both the trial court and the Appellate Division concluded, as a matter of law, that the Legislature may constitutionally require the removal of billboards pursuant to the police power without compensating those owners adversely affected. As a result, the reasonableness of the amortization period, as a question of fact, was never addressed by either the parties in opposition to or support of the cross motion for summary judgment or by the courts. For this reason, we believe a remand for an immediate hearing is required to provide plaintiff with an opportunity to establish, if it can, that the statutory amortization period of six and one~half is unreasonable, as applied. ' ~·-. 22 127 Cal. App. 2d 442, 274 P.2d 34 (1954). tMauhcw Bender & Co .. Inc.) (Rel.32-2191 Pub.845) f'· ·, I f. ' I• ' • • § 41.04(2( ZoNING AND LAND USE CONTROLS 41-166 nonconforming uses within five years of the Jaw's effective date.•• In sustaining the comprehensive ordinance, th<\ court observed that essentially there is no distinction between requiring the discontinuance of a nonconforming use within a reasonable period of time and provisions which deny the right to add to, or to extend, buildings devoted to an existing nonconforming use, to resume a nonconforming use after a period of non use, and to extend or enlarge and existing nonconforming use. All of these provisions, the court noted, have been held valid exercises of the police power.•• The court reasoned that where a landowner is given a specified period of time to move to a new location, and where the gain to the public is large when compared to the private loss, there is no "taking" of property that would require compen- sation. A legislative body, the court stated, "may well conclude that the beneficial effect on the community of the eve'ntual elimination of all nonconforming uses by a reasonable amortiza- tion plan more than offsets individual losses.•• ••Id., 274 P.2d at 36-37. The disputed ordinance read as follows: (a) the nonconforming use of a conforming building or structure may be continued, except that in the "R" Zones any nonconforming commercial or industrial use of a residential building or residential accessory building shall be discontinued within five (5) years from June 1, 1946, or five (5) years from the date the use becomes nonconforming, whichever date is later. ••Id., 274 P.2d at 44. See§ 41.03 supra. ••Los Angeles v. Gage, 127 Cal. App. 2d 442, 274 P.2d at 34, 44 (1954). The court states in pertinent part: The distinction between an ordinance restricting future uses and one requiring the termination of present uses within a reasonable period of time is merely one of degree, and constitutionality depends on the relative importance to be given to the public gain and to the private loss. Zoning as it affects every piece of property is to some extent retroactive in that it applies to property already owned at the time of the effective date of the ordinance. The elimination of existing uses within a reasonable time does not amount to a taking of property nor does it necessarily restrict the use of property so that it cannot be used for any reasonable purpose. Use of a reasonable amortization scheme provides an equitable means of reconcili· ation of the conflicting interests in satisfaction of due process requirements. As a method of eliminating existing nonconforming uses it allows the owner of the nonconforming use, by affording an opportunity to make new plans, at least partially to offset any loss he might suffer. The loss he suffers, if any is spread out over a period of years, and he enjoys a monopolistic position by virtue of the zoning ordinance as long as he remains. If the amortization period is reasonable the loss to the owner may be small when (M111hcw Bender &. Co .. Inc.) (Rel.)2-2/91 Pub.84S) 11 l : ,,, I i I I I '··' '" '· ''· ,.• ,,,,, 41-167 NONCONFORMING USES § 41.04(2) One test the courts have used to determine the reasonableness of amortization provisions is to examine the length of the amort- ization period in relation to the investment made.21 In a Texas decision, for example, the owners of two lots utilized for a commercial use unsuccessfully challenged a law that required nonconforming structures to be removed or altered to conform within twenty-five years.•• The court held that the owners had compared with the benefit to the public. Nonconforming uses will eventually be eliminated. A legislative body may well conclude that the beneficial effect on the community of the eventual elimination of all nonconforming uses by a reasonable amortization plan more than offsets individual losses .... We think it apparent that none of the agreed facts and none of the ultimate facts found by the court justify the conclusion that Ordinance 90,500, as applied to Gage's property, is clearly arbitrary or unreasonable, or has no substantial relation to the public's health, safety, morals, or general welfare, . or that is is an unconstitutional impairment of his property rights. · It is enough for us to determine and we determine only that Ordinance 90,500 of the city of Los Angeles, insofar as it required the discontinuance . of Gage's wholesale and retail plumbing business on lots 220 and 221 within five years from the date of its passage, is a constitutional exercise of the police power. 21 See, e.g.: Federal: Art Neon Co. v. Denver, 488 F.2d 118 (10th Cir), cert. denied 417 U.S. 932 (1974) (invalidating portions of ordinance which provided different amortization periods based on replacement value). California: Castner v. City of Oakland, 129 Cal. Rptr. 682 (1982); People ex tel. Dept. of Public Works v. Adco Advertisers, 38 Cal. App. 3d 507, 110 Cal. Rptr. 849 (1973) (thirty-two months was reasonable amortization period for billboard); National Advertising Co. v. County of Monterey, 211 Cal. App. 2d 375, 27 Cal. Rptr. 136 (1962) (upholding reasonableness of county zoning ordinance which required removal after five years of off-site advertising structures which had become nonconforming uses under such ordinance). Maryland: Eutaw Enters. v. Baltimore, 241 Md. 686, 217 A.2d 348 (1966) (where delay in litigation had given business owners five year period to amortize their investment, court found it unnecessary to rule on reasonable- ness of eighteen month grace period given to eliminate the business; the court observed that a· period of eighteen months was reasonable). New York: Harbison v. Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42 (1958); Hempstead v. Romano, 33 Misc. 2d 315, 226 N.Y.S.2d 291 (1962) (invalidating an ordinance which required discontinuance of any automobile or other junkyard in a residential district at the expiration of three years). · .' · · 21 Uniytrsh{Park v.· Benners, 485 S.W.2d 773, appeal dismissed, 411 U.S. 901 (1972). (Matthew lkndcr & Co., Inc.) (Rcl.32-2191 Pub.84S) • • § 41.04121 ZoNtNo AND LAND UsE CONTROLS 41-168 .. sufficient time in which to terminate the commei;eial uses and to recoup any loss in property value made ·twcessary by the reclassification of the lots from commercial use to residential use.•• Another test for determining the reasonableness of an amort- ization provision is to examine the relationship between the length of the amortization period and the nature of the noncon, forming use.•• In Harbison v. City of Buffalo, •0 for example, the ••Id., 485 S.W.2d at 778-779. The court stated in pertinent part: There are strong policy arguments and a demonstrable public need for the fair and reasonable termination of nonconforming property uses which most often do not disappear but tend to thrive in monopolistic positions in the community. We are in accord with the principle that municipal zoning ordinances requiring the termination of nonconforming uses under reason- able conditions are within the scope of municipal police power; and that property owners do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classifications once made. Otherwise, a lawful exercise of the police power by the governing body of the City would be precluded .... " [Citations omitted]. · The question which then occurs is whether respondent discharged the extraordinary burden of showing that the exercise of the police power here was not lawful. As complainant, she was under the burden of showing that no conclusive, ot even fairly issuable facts or conditions exist in support of that exercise of the police power. Courts may not interfere unless a challenged ordinance is shown to represent a clear abuse of municipal discretion or Unloss there is conclusive evidence that a zoning ordinance is arbitrary either generally or as to particular property . [Citations omitted.) ••See, e.g.: .,-.{' , -~:i:: Kansas: Spurgeon v. Board of Comm'rs, 181 Kan. 1008, 317 P.2d 798 • " ' ! '" " ·" ::~:1::'' '••/:i11,_ (1957) (two years held to be a reasonable time for discontinuance of an r , :~ ·n:·, , , ·: ~r.!':l automobile wrecking business). . . , .,-.. • ; !'.'TY''. C\:!;>1 Louisiana: State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121' (:,'.,_:) f_;_:. ) , ·'(.;;' '>,}'ii So. 2d 613, cert. denied, 280 U.S. 556 (1929) (sustaining liquidation after one · :-~-: -;j: !:}!ii. year of businesses in areas rezoned to residential use). I!·-.: f' ' Maryland: Eutaw Enters., Inc. v. Baltimore, 241 Md. 686, 217 A.2d 348 1 ,_!.;' (1966). The court, in sustaining the validity of two city ordinances which H required the elimination of check-cashing and money-changing operations ,, from residential and office use districts within eighteen months, stated: II' As [Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 i,.·;_- A.2d 363) suggested, there is no difference in kind, merely of degree, between . , Ji; -i-· ,:, i 1 jr_:.J a use which has been nonconforming since zoning began and one that is h !. ~-~~~: , -~~;,: i O,~,,~i J made nonconforming by a reclassifying ordinance, and, as Grant held, one ~ (; ! , '.·: /1!~:-~j ' ; _! ~:i .fi (Mallhcw Bender & Co., Inc:.) (Rcl.32-2191 Pub.84S) ·. ·:_f'.'_:: __ ·)'-·. r-~ ~-~i: },. :i i . ,,..1,. , , "!I , :,. ;!1.::!i --~ , '.' 1i•I ._s: 1 '· ', i!•,,1,'. ·O. • ·Hi ,. ''I ·---' ' 1'} .. 1_:; ·: '_ ,,; I ;/:1 1 · f I'~~ :r, i,._!il.~:_f' 't,_r_:,i:_'~_t~ji:,,' 1:1_:':::1i·:: l!:,~1:,f!.'' ! 'l .. f:';;I :;,1·,:~ii' _'.f~·',111 1 ! I;'; :I, :~r.:·,·1Jiitl' i~~~i; ';(:11·!f:~~r'I !·~):'i,/ 1 J:~;:~;~~.1 ·~:('1~1,·.:·1f 1~ .:l ii' ,I Ir;;::' •,1 .l1 ,f;i ~ ~ '~ 11"111 l1• HJ ~, 11 '1 I ~hij' ' I' f1I • ,J '~'! I~~ 1 f{ ,., .~··I :1·f;. ,., .·.; ·.!· ,;1u I' /1 11 ,'J~ I 11 1 ,' i 'r !'· 1 l 11)1' i 1•1,i 11 , ,~,,.ii~ I !1, ir·I "1, ! I 'in r ·i ·. ~ : t: ,;~·-I ,, .. lj· !""'I: l'L· "'.-,1U1 ···111:1·',11 1,~ " Ii~· I " It•'" i !1 lil1'i I-, '"' -~ 1111,' •I' 'I:' '" 1, ':;f,.:.J l"I ":·_,,,,,_ ,~· ,'"",i:h' .,11·;~.~ 1.;1"i',li~1-,,"', -~r lj'l,~I~· lu,IJI '11''',,1·· i'1:·j1'1i ,.,,,i ,:,· 1~:·:·1·~1,-, ,J. •: 1,i. •,,1·:1111 .. J,~ ,~· 1. -m•'I ·· 1 ·11,1 1r "'~'""r '1~11·1 1 , . ,, i iJ , 1i1·, lt'l1 ,, ... ·. ,. '. 1 ,,,.,, If P ·!.r ... •1,i!·i.. 1 I'' 1: 1 ~,11· i" /' !'l'i~· ~1 ~·1 11 w 1 ~•·1, 11' 1·'1' ,.L 1 '". n1 t'..i~ 1:ij, .. ;~111 .,,.,~»(, .. · f "i ~1 'i '"~~· ··'. 1 :-.u fi;Jr':;r;u 1 ,,·t 'r:t.-1 1\ -ll ;~~1 ir:r.i' ')~11 1;)~1 ·:·1, (} rluLl1~t':'i ilt i a~.r1:t~i~.:1:d '.J,, :''li'1kr'.1 ,'' ::.-. r•·,. . :::: ~.: ;,, ; '· I . ! ("'.'. ; ·'·111 .,,,,, 41-169 NONCONFORMING USES § 41.04(2( New York Court of Appeals held that a municipality may terminate a nonconforming use ifthe owner is permitted to retain the nonconformity for a sufficient period of time to allow recoup- ment of his investment.u Among the factors enumerated by the court to be considered in determining the constitutionality of an in existence when zoning began may be required to stop. Because every zoning regulation affects property owned by someone at the time of its enactment, it brings about some curtailment of property rights either by restricting prospective uses or prohibiting existing ones. The prohibition of existing rights may be more likely to impose greater hardship or loss upon affected individuals than the restriction of prospective uses and that is one reason why we said in Grant at page 316, 129 A.2d at page 370: The significance and effect of difference in degree in any given case depends on circumstances, environment and length of the period allowed for amortiza- tion. 217. A.2d at 354. The court noted that the tolerance period of eighteen months was as long as many that had been judicially approved as reasonable. The court, however found it unnecessary to pass on the eighteen month period of grace as a basis of decision since litigation delays had in effect given the owners the five years they claimed was necessary to fully amortize their investment. 217 A.2d at 355. New York: Modjeska Sign Studios, Inc. v. Berle, 43 N.Y . .id 468, 402 N.Y.S. 2d 359 (1977). •04 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42 (1958). 31 Id. Jn 1924, Harbison purchased a lot abutting on an unpaved street in Buffalo, erected a thirty feet by forty foot structure on the land and opened a junkyard. In 1926 the city enacted a comprehensive zoning ordinance converting the area in which the lot was located to a residential use. An amendment passed in 1953 provided that the use of the land as a junkyard must cease or be changed to a conforming use. The city in 1957 refused to renew Harbison•s license and ordered him to terminate using the land as a junkyard. The lower court in a mandumus proceeding directed renewal of the license. The city appealed on the basis of the amortization provision of the ordinance. Four members of the Court of Appeals voted for reversal with three Justices dissenting. Two members of the majority relied on the Court's decision in People v. Miller, 304 N.Y. 105, 106 N.E.2d 34 (1952). which sustained the defendant's conviction on the charge of violating a zoning law which prohibited the keeping of pidgeons in a residential area. The Miller court held that a zoning ordinance may constitutionally require the termination of a nonconforming use ifthe loss to the owner is relatively slight and insubstan- tial as compared. to gain experienced by the public. The Miller court further pointed out \hat an inconsequential use, such as the harboring of pigeons, did not constitute"a ''vested right" which was considered to be an essential prerequisite for protection of a nonconforming use. (Mauhcw lkndcr & Co .. Inc.) (Rel.32-2191 Pub.84S) ~ , . '.,· •. ·'r'· .:', ------------ - - - - - - - - - - - - - - - - - - • • § 41.04(3) ZoNING AND LAND USE CONTROLS 41-170 amortization ordinance include: the reasonableness.of tlie provi- sions in light of the nature of the property owner'f business; the improvements erected on the land; the character Of the neighbor- hood; and the detriment suffered by the property owner ... (3(-Specific Applications (a]-Signs and Billboards The courts have generally upheld ordinances that require the removal of outdoor advertising signs within comparatively short amortization periods,•• as well as refusals to extend amortization H Harbison v. City of Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, 604-6, 152 N.E.2d 42 (1958). Subsequent New York decisions have appeared unwilling to enforce amort- ization provisions where that would deprive the user of a substantial property interest. See, e.g., Hempstead v. Romano, 33 Misc. 2d 315, 226 N.Y.S.2d 291 (1962). In reviewing an ordinance similar to the one involved in Harbison, supra, the court refused to eajoin operation ofa nonconforming junkyard after a three-year amortization period. The court concluded that a change to a new location would deprive the owner of a substantial interest even though there had been a nonconforming use of the premises for eighteen years. See also Somers v. Comarco, Contractors Inc., 24 Misc. 2d 673, 205 N.Y.S.2d 724, ajfd, 12 A.D.2d· 977, 214 N.Y.S.2d 650, amended, 13 A.D.2d 531, 215 N.Y.S.2d 745 (l961). The court stated that even if it were assumed by virtue of Harbison supra that the rule in New York allows termination by amortiza- tion of nonconforming uses involving substantial investments the question . still remains one of fact to be determined by the trial court, namely, specifically the court must determine whether the amortization period is reasonable under the circumstances of the particular case as partii:ular property. See ·also Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 402 N.Y.S.2d 359 (1977), where the Court of Appeals required a remand for a hearing to determine as a question of fact the reasonableness of a statutory six and one- half year amortization period applicable to billboards in the state's Catskill and Adirondack Parks. The court delineated several factors that should be considered in determining whether an ordinance requiring termination of a billboard would result in a "substantial loss" to the owner. These factors included: initial capital investment, investment realization to date, life expectancy of the investment, the existence or nonexistence of a lease obliga- tion, as well as a contingency clause permitting termination of the lease. 402 N.Y.S.2d at 359. See n.21 supra for further discussion of Modjeska. · ., Major Media v. City of Raleigh, 621 F. Supp. 1446 (E.D.N.C. 1985) (amortization period provided for in city's billboard and sign ordinance deemed reasonable). (M11thew Bender&. Co .• Inc.) (Rcl.32-2191 Pub.84S) { •·) ', ·-·'' ·-. ..,,:,~ A -~· E I• "? I r ~ ', ,r• .. I,:, I I ' ]11 '•· ••• I I•. .. ::J1~!"/ -~~.'~i:,·,