HomeMy WebLinkAboutPacket - 02/17/2021 - Planning and Zoning Commission
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PLANNING AND ZONING COMMISSION
MEETING NOTICE
DATE: Wednesday, February 17, 2021
TIME: 7:00 p.m.
PLACE: Zoom Web Conferencing Application
Join Zoom Meeting: https://cityofmchenry.zoom.us/j/91913272595
Phone: +1-312-626-6799
Meeting ID: 919 1327 2595
AGENDA
1. Call to Order
2. Roll Call
3. Public Input – (five minutes total on non-agenda items only)
4. Consideration of Approval of Meeting Minutes: December 16, 2020 & December 23, 2020
5. Z-983 – a Use Variance to allow a 4-unit multifamily building in the RS-4 High Density Single-Family
Residential District and Zoning Variations including, but not limited to, off-street parking and loading,
and minimum lot width.
Petitioner: B.D.K.M., LLC of 207 S. Draper Road, McHenry, IL 60050 (Contract Purchaser)
Location of Subject Property: The site consists of 0.23 acres, more or less, and is located on the southeast corner
of N. Freund Avenue and Grand Avenue.
6. Z-984 –Text Amendments to the City of McHenry Zoning Ordinance: The City of McHenry is proposing
text amendments to the Zoning Ordinance including, but not limited to, Chapter 16 Nonconformities.
7. Staff Report: Next Meeting Date: March 17, 2021
8. Adjourn
City of McHenry
Planning and Zoning Commission Minutes
December 16, 2020
Chairman Strach called the December 16, 2020 regularly scheduled meeting of the City of
McHenry Planning and Zoning Commission to order at 7:00 p.m. via Zoom. In attendance were
the following: Doherty, Gurda, Lehman, Strach, Sobotta, Thacker and Walsh. Absent: None. Also
in attendance were City Planner Cody Sheriff, Director of Economic Development Martin,
Economic Development Coordinator Wolf, and Community Development Director Polerecky.
Public Hearing
Z-965
Commissioner Strach asked for a motion to amend the agenda for this meeting to include File Z-
965 (First Midwest Bank Redevelopment/7-Eleven Automobile Fueling Station at 3510 and 3522
W. Elm Street), which was continued at the November 18, 2020 meeting, so the hearing can be
officially closed due to withdawal by the Petitioner.
Motion by Lehman and seconded by Gurda to amend the agenda for the December 16, 2020
Planning and Zoning Commission Hearing to include File No. Z-965 (First Midwest Bank
Redevelopment/7-Eleven Automobile Fueling Station at 3510 and 3522 W. Elm Street) and to
close the hearing due to it being withdrawn by the Petitioner.
Roll Call: Vote: 7-ayes: Commissioners Doherty, Gurda, Lehman, Sobotta, Strach, Thacker and
Walsh. 0-nay; 0-abstained; 0-absent. Motion Carried.
Public Hearing Guidelines for a Virtual Meeting were presented. Chairman Strach opened the
public portion of the meeting at 7:05 p.m. There was nobody in attendance who wished to
address the Commission with public comment.
Approval of Minutes: Consideration of November 18, 2020 Meeting Minutes as presented.
Motion by Sobotta and seconded by Walsh for approval.
Roll Call: Vote: 5-ayes: Commissioners Gurda, Lehman, Sobotta, Strach, and Walsh. 0-nay;
2-abstained: Doherty, Thacker; 0-absent. Motion Carried.
Public Hearing: Graham Enterprise, Inc.
Z-978
5520 W. Elm Street
Zoning Map Amendment, Conditional Use Permit, and Zoning Variations to Accommodate an
Automobile Fueling Station with Drive-Thru Restaurant
Chairman Strach called the Public Hearing to order at 7:08 p.m. regarding File No. Z-978 an
application for a Zoning Map Amendment to C-5 Highway Commercial District, a Conditional Use
Permit to operate an Automobile Fueling Station and future Drive-Thru quick service restaurant,
and various Zoning Variances including but not limited to site lighting, building perimeter
Planning and Zoning Commission
December 16, 2020
Page 2
landscaping, and any other variances required to effectuate the proposed gas station and
convenience store with a drive-thru car wash at the property located at 5520 W. Elm St.
In attendance were:
1. Chris Kalischefski and Heidi Lapin, WT Group, Architect, 2675 Pratum Ave., Hoffman
Estates, IL 60192
2. John Graham and Brian Wente, Graham Enterprise, Inc., 750 Bunker Ct, Vernon Hills IL
60061
3. Luay Aboona KLOA, Inc., 9575 W. Higgins Rd., Suite 400, Rosemont, Illinois, United
States 60018
who were sworn in. Mr. Kalischefski stated he is making this request on behalf of Graham
Enterprises for improvements including the construction of a new 6,057 SF Convenience Store
with attached 1,650 SF Quick Service Restaurant, auto canopy, commercial canopy, 8,298 SF
Car Wash, landscaping, and associated site work. The site is currently zoned as C-2
Neighborhood Commercial District and they are requesting rezoning to C-5 Highway
Commercial district to allow a car wash, a conditional use permit for fuel sales, and a variance
for landscape foundation plantings and signage and site lighting. Design will be similar to the
one at Crystal Lake and Bull Valley Rd. and safety and convenience will be priority in all aspects
of the project. This site will technically be three businesses which is the request for a sign
variance but they are asking for only 38% of what would be allowed for three separate
businesses. Five of the signs are purely directional to add to the safety of the property. They
have made amendments to the original plans submitted based upon staff comments by
updating the truck exit to be left turn only and adding a bike rack to the right of the C-Store and
a sidewalk and crosswalk to connect the C-store to the sidewalk along Ringwood. They stressed
from their viewpoint for the success of the business, it is imperative to separate the CFL traffic
from auto traffic the same as was previously done for the two Speedways previously approved
by the commission. They presented updated plans and fully explained the nature of their
request.
City Planner Sheriff gave the Staff Report stating Graham Enterprise, Inc. is requesting approval
of the zoning items and are proposing a two-phased development project with Phase 1 being
construction of a 5846 square foot Convenience Store with 9 fuel pumps, and a car wash and
Phase 2 the Addition of a 1650 square foot Drive-Thru Quick Service Restaurant. Planner Sheriff
stated after receiving the revised site plan from the Petitioner that were also presented in the
meeting, Staff is revising its recommendation and recommending approval of the Building
Perimeter Landscaping. Planner Sheriff also clarified sign variances are voted on by City Council
rather than the Planning and Zoning Commission thanking the Petitioner for explaining their sign
variance request and stating that would not be voted on at this meeting.
Planner Sheriff explained the original gas station on the subject property was annexed and
granted a conditional use permit in 1989. The proposed development is in substantial
conformance with parking requirements. The subject property is zoned C-2 Neighborhood
Commercial District and is currently vacant. The site is separated from Parkland Middle School
by a 142-foot parcel owned by the school district. The subject property operated as a gas station
with a car wash for approximately 15 years. He opined traffic generated during school release
times is an issue which causes many cars to back up onto Ringwood Road. Planner Sheriff clarified
Planning and Zoning Commission
December 16, 2020
Page 3
Staff has actively worked with School District 15 in discussions to remediate the traffic flow issues
generated by the Middle School.
The future land use map recommends commercial use on the west half of the subject property
with office use on the east half. Although partially in compliance, office space demand has
significantly declined in recent years as work from home arrangements have become more
accepted. Overall, staff believes the proposed development is consistent with the City’s
Comprehensive Plan objectives and policies.
Staff believes the C-5 Highway Commercial District is an appropriate zoning designation given its
proximity to IL-120. Staff does not object to the petitioner’s request and recommends approval
of the zoning map amendment.
Both Gas Stations and Drive-Thru restaurants are a permitted conditional use within the
proposed C-5 Highway Commercial Zoning District. Staff does not believe that approval of the
request would create any adverse impacts on the surrounding properties. The proposed future
drive-thru quick service restaurant is another automobile oriented use which is appropriate being
located on a state highway. However, staff did have several concerns with the overall site plan
and the City’s Staff Engineer recommended the petitioner revise the access off Ringwood Road
to a single access point. Planner Sheriff stated Staff’s primary concern is the ingress/egress off
Ringwood Road but if the Petitioner feels it is needed the hearing may need to be tabled to allow
staff more time to research the request.
The petitioner is requesting approval of several zoning variations to building perimeter
landscaping, bicycle parking and lighting. Staff originally recommended the petitioner comply
with the Ordinance on building perimeter landscaping or be prepared to justify the hardship,
compliance with the bicycle parking ordinance, and approval of the lighting variance requested
as presented. Staff has changed their original recommendation and is now recommending
approval of the landscaping request and the zoning and parking requests.
Chairman Strach opened the floor to questions and comments from the commissioners.
Commissioner Walsh thanked the petitioner for a thorough presentation and asked for
clarification on traffic westbound on Elm Street turning in to the property in regard to traffic flow
and northbound on Ringwood in regard to ingress/egress for the two-way entrance. Clarification
was given.
Commissioner Thacker inquired if anyone from school district 15 had contacted staff or the
petitioners with concerns. Planner Sheriff answered he has not heard from anyone on this
project in particular other than to work together to configure the property to limit the flow to
traffic backups . Chairman Strach stated Mr. Graham has worked with the school district to make
a land swap in order to resolve some of the traffic issues involved. Mr. Graham further explained
they have already worked through the land purchase to effectuate making the site plan workable
as presented.
Planning and Zoning Commission
December 16, 2020
Page 4
Commissioner Doherty opined a left hand turn out onto Ringwood Rd will be very difficult. He
asked if a sidewalk has been included all the way around the property to the North and the East.
Mr. Kalischefski answered affirmatively and in further response to Commissioner Doherty
responded that it will be a 24-hour facility and it is their intention to include gaming.
Commissioners Gurda, Sobotta, and Lehman had no questions.
Chairman Strach opened the floor to questions and comments from the public. There was
nobody in attendance who wished to address the Commission with public comment.
Chairman Strach closed the public comment portion of the hearing at 7:45 p.m.
Motion by Gurda seconded by Lehman, with regard to File No. Z-978, to approve the
petitioner’s request to rezone the subject property from the C-2 Neighborhood Commercial
District to the C-5 Highway Commercial District and by making said motion, we agree with
staff’s assessment as outlined in the staff report that the approval criteria for Zoning Map
Amendments have been met.
Roll Call: Vote: 6-ayes: Gurda, Lehman, Sobotta, Strach, Thacker and Walsh. 0-nays, 0-abstained,
0-absent. Commissioner Doherty recused himself from voting on this hearing due to a conflict of
interest. Motion Carried.
Motion by Lehman seconded by Gurda, with regard to File No. Z-978, to approve the petitioner’s
request for a Conditional Use Permit to allow an automobile fueling station and future drive-thru
quick service restaurant on the subject property subject to the following conditions, as amended:
1. The property owner shall work with the school district to determine where a
pedestrian crossing or other on-site amenity is required to provide improved
pedestrian access to the convenience store.
2. The property owner shall revise the proposed future quick service restaurant site
plan to include a sidewalk along the west portion of the building to be approved by
the Zoning Administrator.
3. The property owner shall design point(s) of access along Ringwood Road/Elm Street
which shall be reviewed and approved by the Director of Public Works or Staff
Engineer.
4. The proposed development shall be constructed to be in substantial conformance
with the plans submitted and with the revisions outlined as presented and
amended.
5. All other state, federal, and local laws shall be met.
AND by making said motion, we agree with the staff’s assessment as outlined in the staff report,
as amended, that the approval criteria for conditional uses has been met.
Planning and Zoning Commission
December 16, 2020
Page 5
Roll Call: Vote: 6-ayes: Gurda, Lehman, Sobotta, Strach, Thacker and Walsh. 0-nays, 0-abstained,
0-absent. Commissioner Doherty recused himself from voting on this hearing due to a conflict of
interest. Motion Carried.
Motion by Thacker seconded by Walsh, with regard to File No. Z-978,. to approve the petitioner’s
request for a zoning variance to allow 69 foot candles under the canopy and 12 foot candles in
the west parking lot area AND by making said motion, we agree with staff’s assessment as
outlined in the staff report, with amendments, and that the approval criteria for Variances have
been met.
Roll Call: Vote: 6-ayes: Gurda, Lehman, Sobotta, Strach, Thacker and Walsh. 0-nays, 0-abstained,
0-absent. Commissioner Doherty recused himself from voting on this hearing due to a conflict of
interest. Motion Carried.
Chairman Strach closed the Public Hearing regarding File No. Z-978 at 8:00 pm.
City of McHenry
File No. Z-977
Text Amendments to the Zoning Ordinance including but not limited to Chapter 2 Planning
and Zoning Generally, Chapter 6 District Regulations, Chapter 12 Off Street Parking and
Loading, Chapter 14 Accessory Uses and Structures, Chapter 16 Nonconformities,
and Chapter 19 Variances
Chairman Strach called the hearing to order at 8:02 p.m. regarding the continuation of File No Z-
977 a request for various text amendments to the City of McHenry Zoning Ordinance including
but not limited to Chapter 2 Planning and Zoning Generally, Chapter 6 District Regulations,
Chapter 12 Off Street Parking and Loading, Chapter 14 Accessory Uses and Structures, Chapter
16 Nonconformities, and Chapter 19 Variances.
Chairman Strach stated Notice of the Public Hearing was published in the Northwest Herald and
a Certificate of Publication is on file in the City Clerk’s Office.
City Planner Sheriff provided the Commission with the Staff Report regarding this file stating
revisions have been made incorporating the changes discussed at the November Planning and
Zoning meeting. He presented the revised document stating he removed the provision for
updating parking lots and changed accessory structures allowing the zoning administrator to
waive requirements based on site specific circumstances. Planner Sheriff stated a staff plat
review committee for new developments has also been created and added to the amendments.
Discussion ensued.
Chairman Strach invited questions and/or comments from the Public. There was nobody in
attendance who wished to address the Commission with public comment. Commissioner Strach
closed the public comment portion of the hearing at 8:08 p.m.
Motion by Thacker seconded by Doherty to recommend with regard to File No. Z-977, allowing
all the recommended changes to various text amendments to the City of McHenry Zoning
Planning and Zoning Commission
December 16, 2020
Page 6
Ordinance including but not limited to Chapter 2 Planning and Zoning Generally, Chapter 6
District Regulations, Chapter 12 Off Street Parking and Loading, Chapter 14 Accessory Uses and
Structures, Chapter 16 Nonconformities, and Chapter 19 Variances, as amended.
Roll Call: Vote: 7-ayes: Doherty, Gurda, Lehman, Sobotta, Strach, Thacker and Walsh. 0-nays, 0-
abstained, 0-absent. Motion Carried.
Chairman Strach closed the hearing regarding File No. Z-977 at 8:10 p.m.
Approval of Annual Meeting Schedule
2021 Planning and Zoning Commission Meetings
JANUARY - 7:00 P.M. FEBRUARY - 7:00 P.M. MARCH - 7:00 P.M.
27 Wednesday 17 Wednesday 17 Wednesday
APRIL - 7:00 P.M. MAY - 7:00 P.M. JUNE - 7:00 P.M.
21 Wednesday 26 Wednesday 16 Wednesday
JULY - 7:00 P.M. AUGUST - 7:00 P.M. SEPTEMBER - 7:00 P.M.
14 Wednesday 18 Wednesday 15 Wednesday
OCTOBER - 7:00 P.M. NOVEMBER - 7:00 P.M. DECEMBER - 7:00 P.M.
20 Wednesday 17 Wednesday 15 Wednesday
Motion by Doherty, seconded by Lehman, to approve the 2021 regular meeting schedule of the
Planning and Zoning Commission, as presented:
Roll Call: Vote: 7-ayes: Doherty, Gurda, Lehman, Sobotta, Strach, Thacker and Walsh. 0-nays, 0-
abstained, 0-absent. Motion Carried.
Staff Report: The next regularly scheduled meeting is January 27, 2021, at 7:00 p.m. Planner
Sheriff stated staff recommended approval of Christopher Burke Engineering to do a downtown
streetscape plan for the entire downtown area including Main Street, Green Street and Riverside
Drive. They are soon expecting a draft version of an apartment complex study. And a 260 unit
apartment complex behind Aldi will be presented soon. The Fox River Corridor Plan is
progressing and they identified the McHenry Riverwalk as one of the largest public access points
along the Fox River.
Planner Sheriff asked for availability for a special public meeting to be added December 23, 2020
at 7:00 pm. The purpose will be an acquisition by Lennar of the remainder of the vacant lots
within the Legend Lakes Townhome Portion east of Curran Road. Commissioner Doherty was
the only Commissioner stating inability to attend the proposed special meeting, therefore
Planner Sheriff will schedule a special meeting, stating it is not a public hearing but is a public
Planning and Zoning Commission
December 16, 2020
Page 7
meeting. Commissioner Strach informed the Commission he is running for city council alderman
so there is a possibility for an open position on the Planning and Zoning Commission in April.
Adjourn: Motion by Walsh and seconded by Gurda, all approved. Meeting adjourned at
8:20 p.m.
__________________________________
Shawn Strach, Chairman Planning & Zoning
City of McHenry
Planning and Zoning Commission Minutes
December 23, 2020
Chairman Strach called the December 23, 2020 special scheduled meeting of the City of McHenry
Planning and Zoning Commission to order at 7:00 p.m. via Zoom. In attendance were the
following: Gurda, Lehman, Strach, Thacker and Walsh. Absent: Doherty, Sobotta. City Staff in
attendance were City Planner Cody Sheriff, Community Development Director Polerecky. In
attendance for petition Z-979 were Richard ‘Rick’ Murphy (CalAtlantic Group), Madeline Larmon
(Mackie Consult Engineering), and Richard Olson (Gary R. Weber Associates (Landscape
Architect)).
Public Hearing Guidelines for a Virtual Meeting were presented. Chairman Strach opened the
public portion of the meeting at 7:05 p.m. There was nobody in attendance who wished to
address the Commission with public comment.
Public Meeting: CalAtlantic Group, Inc.
Z-979
Subject Property: 6.359 acre property located east of the intersection of Curran Road and N.
Draper Road.
Final Plat of Subdivision for the Legend Lakes – Neighborhood 1 Resubdivision
Chairman Strach called the Public Meeting to order at 7:08 p.m. regarding File No. Z-979 an
application for approval of a final plat of subdivision for the Legend Lakes – Neighborhood 1
Resubdivision.
In attendance were:
1. Richard Murphy, CalAtlantic Group Inc., 1141 E. Main Street, Suite 108, Easte Dundee, IL
60118
2. Madeline Larmon, Mackie Consultants, LLC, 9575 W Higgins Road, Suite 500, Rosemont,
IL 60018.
3. Richard Olson, Gary R. Weber Associates Inc., 402 W. Liberty Drive, Wheaton, IL 60187
There were no members from the general public in attendance.
Chairman Strach called on staff to start off discussion. City Planner Sheriff provided an overview
and background of the Subject Property. The original subdivision was platted in 2006 as a
condominium development but was never completed due to the recession. Because of a state
mandated 10-year statute of limitations, the existing condominium association can no longer
add on any new property and therefore the petitioner will need to create a new home owner’s
association. The petitioners are proposing to complete the development and plat the remaining
13 buildings as ‘fee-simple’ ownership as opposed to condominium ownership. The main
difference is after construction is completed, each individual unit within the 4-unit building is
platted making it much easier for financing.
Planning and Zoning Commission
December 16, 2020
Page 2
Mr. Sheriff explained staff discovered an error in their initial review of the landscape plan and
are revising their recommended conditions and eliminating the recommended tree planting
requirement for the common area since the petitioners have moved those trees closer to the
building. Mr. Sheriff noted that staff is still recommending the petitioner add a 6-foot
ornamental tree in between each building to match the existing neighborhood landscape
design as well as the parkway tree planting requirement. Other than what was previously
stated, Mr. Sheriff explained the proposed development is nearly identical to the original with
the exception of different architectural features and landscaping. Mr. Sheriff explained the
subdivision did not require a public hearing since there are no variations or zoning map
amendments being requested.
Mr. Sheriff passed the discussion over to the petitioner.
Mr. Murphy provided an overview of the agreement being signed between the new association
and the existing association. Overall, he explained the goal is for the new association to feel a
part of the community and emphasized the agreement would allow this. Mr. Murphy
commented that the only engineering changes were slight tweaks to the driveways to
accommodate the new design of the buildings. Mr. Murphy explained they have worked with
staff to make sure the landscaping will blend in. He explained the architecture requirements for
50% brick on the first floor were kept the only change is the more contemporary design of the
exterior of the building. The floorplan will have a very modern, open style design to appeal to
today’s market.
Chairman Strach asked how the pricing of the units will compare. Mr. Murphy responded they
will likely be within the mid 200’s range and will be a higher price point than the existing ones
just because they are brand new product. Chairman Strach explained he just wanted to make
sure they weren’t devaluing the existing townhomes. Mr. Murphy explained he thinks they
won’t and they will blend in with the community.
Commissioner Thacker asked about the number of buildings. Mr. Murphy responded explaining
it was 13 additional building, 52 dwelling units. Mr. Thacker asked when they wanted to start
construction. Mr. Murphy explained hopefully in March. Mr. Thacker asked about signage. Mr.
Murphy said they would propose an on-site marketing plan as part of the development
agreement.
Chairman Strach asked if there were any other comments or questions from commissioners.
There were none.
Chairman Strach asked if there were any other questions or comments from the petitioner.
Mr. Murphy thanked the commission and staff for accommodating their request the day before
Christmas Eve.
Chairman Strach asked staff if there was any additional information. Mr. Sheriff brought up on
the Zoom Screen the motion for the commissioners that was outlined in the staff report
Planning and Zoning Commission
December 16, 2020
Page 3
without the condition for the common space landscaping since that landscaping had been
moved closer to the buildings.
Chairman Strach asked for a commissioner to make a Motion to approve the Final Plat of
Legend Lakes – Neighborhood 1 Resubdivision subject to the following conditions:
1. All development shall be in substantial conformance with the submitted Landscape Plan
and Building Elevations.
2. The proposed landscaping shall include one additional 6-foot ornamental tree in
between each building and a minimum of three additional street trees in the right-of-
way on the north side of Carrick Lane just south of NEA 29.
3. All other federal, state, and local laws shall be met.
Motion by Commissioner Walsh, Seconded by Commissioner Lehman. Mr. Strach asked for any
additional comments on the motion. There were no comments.
Roll Call Vote: 6-ayes; Gurda, Lehman, Strach, Thacker and Walsh. 0-nays, 0-abstained, 2-
absent.
Mr. Murphy thanked City Staff and the Commission for processing their petition on short
notice.
Chairman Strach moved onto the next agenda item which was the Staff Report. Mr. Sheriff
provided an update on various projects that were ongoing and will be moving forward including
a conceptual 264-unit multifamily development behind the Aldi on Richmond Road.
A motion to adjourn was made by Commissioner Walsh, Commissioner Thacker. Chairman
Strach asked if there were any objections. There were none. The meeting adjourned at 7:17PM.
Staff Report for the City of McHenry Planning & Zoning Commission
Staff Comments
The following comments and conclusions are based upon staff analysis and review prior to this hearing and are to be
considered viable unless evidence is established to the contrary. Staff may have additional comments based upon the
testimony presented during the public hearing.
BACKGROUND & REQUEST SUMMARY
The petitioner, B.D.K.M., LLC (“Contract Purchaser”) is requesting approval of the following items:
• A Use Variance to allow a 4-unit, Multi-Family Building in the RS-4 High Density Single-Family Residential District;
• A Zoning Variance to allow 6 parking spaces in lieu of the required 7.5 parking spaces; and
• A Zoning Variance to allow a minimum lot width of 75 feet in lieu of the required 200 feet (50ft per DU).
• Any other zoning variances necessary to accommodate a 4-unit multi-family building on the subject property.
The site consists of 0.23 acres, more or less, and is located on the located on the southeast corner of N. Freund Avenue
and Grand Avenue, with a common address of 3723 Grand Avenue, McHenry, IL 60050 (“Subject Property”). According
to the plat of survey, the site consists of a 1-story brick multi-unit building with a detached garage. The RS-4 District does
not permit a multi-family building and therefore the existing 3-unit structure is defined as legal nonconforming by our
Zoning Ordinance. According to a Field Correction Notice dated February 7, 1991 (attached), the requested 4th dwelling
unit was the subject of an enforcement action that was resolved 30 years ago. The current property owner desires to sell
the property to the petitioner pending approval of the zoning requests. The petitioner is also proposing four (4)
additional paved parking spaces for a total of six (6). According to the site plan, the petitioner plans on adding an
independent ingress/egress to the fourth unit which is required by building code. The petitioner has also informed staff
of his desire to upgrade the existing electrical, plumbing, and fire alarms as part of the development.
CITY OF MCHENRY ORDINANCES
• The petitioner must meet the Approval Criteria for Use Variances, listed in §11-19-6 of the City of McHenry
Zoning Ordinance.
• The petitioner must meet the Approval Criteria for Variances, listed in §11-19-5 of the City of McHenry Zoning
Ordinance.
CURRENT LAND USE AND ZONING
The subject property is currently zoned RS-4 High Density Single-Family District but has been lawfully used as multifamily
for over 30 years. The primary concern is how the proposed use will interact with the surrounding single-family
residential neighborhood. Given the long history of operation as a multifamily building, staff does not believe the
request would negatively impact with the surrounding land use. The additional off-street parking provided would
remove cars from the right-of-way and relieve on-street congestion.
COMPREHENSIVE PLAN OBJECTIVES AND POLICIES
Overall, staff believes the proposed development is consistent with the City’s Comprehensive Plan objectives and policies.
Staff comments italicized.
• Land Use, Objective – Allow a mixture of land uses in appropriate areas to promote responsible growth while
providing a high quality of life to the residents.
o Policy – “Preserve and expand areas of residential land use.” (p. 27)
Approval of the applicant’s request would preserve and expand areas of residential land use.
• Neighborhood Character, Objective – Promote Downtown Housing.
o Policy – “Approve high-density multi-family residential in conjunction with commercial retail to create a
mixed-use area.” (p. 48)
Being within a five (5) minute walking distance to the Historic Downtown, approval of the request
would promote having multifamily land use within walking distance of commercial businesses.
FUTURE LAND USE MAP RECOMMENDATION
The future land use map recommends low-density multifamily district land use. The proposed development is not in
compliance with the future land use map recommendation.
STAFF ANALYSIS
The petitioner is requesting approval of a use variance and several zoning variations in order to accommodate a 4-unit,
multifamily building at 3723 Grand Avenue. Although inconsistent with the surrounding single-family land use and
future land use map recommendation for single-family residential, the subject property has lawfully operated as a 3-unit
multifamily building for over 30 years. Staff does not believe approval of the 4th unit would create any adverse impacts
on the surrounding area. The existing parking consists of two (2) off-street parking spaces (driveway) with the remainder
of the tenants parking in the gravel right-of-way. Upon purchase of the property, the petitioner desires to add four (4)
additional paved parking spaces for a total of six (6) off-street parking spaces. This would be a desired improvement
since it appears the existing occupants need to use the gravel parking area in the right-of-way.
The Community Development Department has been working closely with the petitioner and has performed a walk-
through inspection of the structure. Based on the age of the building, the structure is in compliance with the building
codes in effect at the time of creation. From a code enforcement perspective, it is difficult for the department to enforce
the three (3) dwelling unit provision identified in the field correction notice from 1991. Our building inspector did note
that the 4th unit appeared to have been occupied not too long ago but there is no way to be certain. This is a fire safety
concern because there is no direct access from outside the building. The Community Development Department would
recommend the petitioner’s request be granted for the 4th dwelling unit in order to encourage compliance with building
code and for the safety of future occupants.
If the Planning & Zoning Commission agrees with staff’s assessment then two separate motions are recommended:
1st MOTION: I motion to approve the petitioner’s request for a use variance to allow a 4-unit multifamily building
subject to the following conditions:
1. A building permit shall be obtained within six (6) months from the date of approval by City Council.
2. The development shall be in substantial conformance with the submitted site plan.
3. All other federal, state, and local laws shall be met.
AND by making said motion, I agree with staff’s assessment that the approval criteria for Use Variations have been met
as outlined in the Staff Report.
APPROVAL CRITERIA FOR USE VARIANCES (§11-19-6)
A. Practical Difficulties or Particular Hardship: For reasons fully set forth in the written findings, the strict
application of the provisions of this title relating to the use of the buildings or structures, or the use of the land,
would result in unnecessary and undue hardship upon the applicant, as distinguished from mere inconvenience.
Staff believes the strict application of the provisions of the Zoning Ordinance would result in an unnecessary and
would result in undue hardship upon the applicant.
B. Reasonable Return: The property cannot yield a reasonable return if permitted to be used only under the
conditions allowed by the regulations in this title for the pertinent zoning district.
Staff believes the subject property cannot yield a reasonable return if permitted to be used only under the
conditions allowed by the regulations.
C. Unique Circumstance: Special circumstances, fully described in the written findings, exist that are peculiar to
the property for which the use variance is sought and that they do not apply generally to other properties in the
same zoning district.
Staff does believe the request is under special circumstances uniquely for this property because the property has
operated for over 30 years as a nonconforming multifamily building in a single-family residential district.
D. Not Alter Local Character: The granting of the use variance will not alter the essential character of the locality,
nor substantially impair environmental quality, property values or public safety or welfare in the vicinity.
Staff does not believe approval of the request will generate any adverse impacts on the surrounding area and the
new investment into the property that includes more off-street parking will have a positive impact on property
values.
E. Consistent With Title And Comprehensive Plan: The granting of a use variance will be in harmony with the
general purpose and intent of this title and of the Comprehensive Plan of the City.
Staff believes the overall request is consistent with the Title and Comprehensive Plan.
2nd MOTION: I motion to approve the petitioner’s request for the following zoning variations: to allow 6 parking spaces
in lieu of the required 7.5 parking spaces; to allow a minimum lot width of 75 feet in lieu of the required 200 feet; and
any other zoning variances needed to accommodate the proposed 4-unit multifamily building. AND By making said
motion I agree with staff’s assessment that the approval criteria for zoning variances have been met as outlined in the
staff report.
VARIANCE APPROVAL CRITERIA (11-19-5). Comments of staff italicized below.
A. Special Circumstances Not Found Elsewhere.
Staff believes this is an unusual circumstance since the property has operated for over 30 years as a multi-family
building in a single-family residential zoning district.
B. Circumstances Relate to the Property Only.
Staff believes this is a special circumstance as a result of the use of the property as a lawfully created multi-
family building in a single-family residential zoning district.
C. Not Resulting From Applicant Action.
The applicant did not create the 3-unit building which has operated for over 30 years. Staff believes the 4th unit
has been unlawfully occupied at various times over the years and approval of the request would bring the
property into compliance and improve the safety of future occupants.
D. Unnecessary Hardship.
Staff believes if the city enforces the ordinance that it would cause undue hardship on the applicant considering
how long the use has been established.
E. Preserves Rights Conferred By District:
Staff believes this does not confer a special privilege for the subject property.
F. Necessary For Use Of Property:
Staff believes that without approval, the petitioner would be denied reasonable use and enjoyment of the
property.
G. Not Alter Local Character:
Staff believes approval of the applicant’s request would not substantially alter essential character of the locality
nor have any other adverse impacts. Improvements to the subject property would positively impact the
surrounding area.
H. Consistent With Title And Plan:
Staff believes the proposal is appropriate given its proximity to the downtown which is consistent with the
Comprehensive Plan recommendation for increasing overall density in the downtown.
I. Minimum Variance Recommended:
Staff believes the proposed variance requests are the minimum required.
Attachments:
• Petitioner’s Application
• Field Correction Notice Dated February 7, 1991
Department of Community &
Economic Development
McHenry Municipal Center
333 Green Street
McHenry, Illinois 60050
Phone: (815) 363-2170
Fax: (815) 363-2173
www.ci.mchenry.il.us
REGULAR AGENDA SUPPLEMENT
TO: Planning & Zoning Commission
FROM: Cody Sheriff, City Planner
FOR: February 17, 2021 Planning & Zoning Commission
RE: Z-984 Zoning Text Amendment to Chapter 16: Nonconformities of the City of
McHenry Zoning Ordinance.
ATT: 1. Memorandum from City Attorney dated February 5, 2021
2. Abandonment, Discontinuance and Amortization of Nonconforming Uses:
Lessons for Drafters of Zoning Regulations (2010)
Agenda Item Summary: The City of McHenry is proposing changes to the Zoning Ordinance
including but not limited to Chapter 16: Nonconformities.
Background: The City of McHenry is in the process of force annexing unincorporated parcels that
are wholly surrounded by the City of McHenry municipal limits and less than sixty (60) acres. The
most recent annexation cases have demonstrated a need to update the City’s Nonconformities
Ordinance. Staff have been directed by City Council to draft an amortization ordinance to present
to City Council in February that would amend the recently approved Nonconformities Ordinance.
This would allow the City to sunset nonconforming uses in Residential Zoning Districts that may
be negatively impacting the surrounding area.
Staff Analysis: The purpose of an amortization ordinance is to discontinue nonconforming uses
that are incompatible with the underlying zoning district regulations. These nonconforming uses
typically are negatively impacting the health, safety, and welfare of the public. An amortization
ordinance requires a nonconforming use to discontinue after an established period of time that
would allow a property onwer to recoup their investment. Amortization is not meant to
reimburse but to provide the property owner of a nonconforming use an economic cushion.
The City Attorney researched and provided staff legal guidance for drafting an ordinance.
Although there are not many local examples in McHenry County, staff have found several
examples of model language. There are two methods of determining amortization: 1) fixed-
Department of Community &
Economic Development
McHenry Municipal Center
333 Green Street
McHenry, Illinois 60050
Phone: (815) 363-2170
Fax: (815) 363-2173
www.ci.mchenry.il.us
periods approach; and 2) case-by-case methods. The attached article provides an overview of
both approaches starting on page 500. Staff is recommending a hybrid approach that involves a
fixed period of one (1) year with the ability of the property owner to apply for and receive a six
(6) month extension. Any request greater than six (6) months would require review by the
Planning & Zoning Commission. City Council will ultimately approve or deny the request. Staff is
requesting approval of the text amendments to the nonconformities section of the Zoning
Ordinance.
Draft Text Amendment Language:
11-16-3(G), 11-16-3(H), 11-16-3(I)
G. Amortization of Nonconforming Uses in Residential Zoning Districts. Any nonconforming
use of land located in a residential zoning district which lawfully existed at the time that
this Ordinance became effective, shall be discontinued within one (1) year from the date
of its passage. This section does not apply to nonconforming uses that received approval
of a use variance.
H. Requests for Extensions of Nonconforming Uses in Residential Zoning Districts. The
owner or operator of a nonconforming use in a residential zoning district may request a
six (6) month extension which shall be reviewed and approved by the Zoning
Administrator.
I. Requests for Extensions of Nonconforming Uses in Residential Zoning Districts greater
than six (6) months. City Council may grant an extension for the continued operation of
a nonconforming use in a residential zoning district. In order to secure an extension of
time greater than six (6) months, the owner or operator must submit to the Zoning
Administrator a written request for such extension at least sixty (60) days prior to the
end of the amortization period. No application for extension received after such time
shall be considered. This information shall be supported by relevant documentary
evidence such as: 1) the amount of the owner’s investment in the pre-existing,
nonconforming use through the effective date of this ordinance; 2) the amount of such
investment that has been or will have been realized at the conclusion of the
amortization period; 3) the life expectancy of the nonconforming use; and 4) the
existence or nonexistence of lease obligations, as well as any contingency clauses
therein permitting termination of such lease. The Zoning Administrator shall notify an
applicant for an extension of time greater than six (6) months of the time and place of a
Department of Community &
Economic Development
McHenry Municipal Center
333 Green Street
McHenry, Illinois 60050
Phone: (815) 363-2170
Fax: (815) 363-2173
www.ci.mchenry.il.us
hearing to be held on such request before the Planning & Zoning Commission. The
Planning & Zoning Commission shall make a recommendation to be transmitted to City
Council who may approve or deny the request.
If the Planning & Zoning Commission agrees with Staff’s recommended changes
to the Zoning Ordinance, then staff recommends the following motion:
MOTION: I motion to approve text amendments to the City of McHenry Zoning
Ordinance as outlined in the staff report.
Memorandum
To: David W. McArdle
From: Brandy S. Quance
Date: February 5, 2021
Re: Amortization of Land Uses
The City of McHenry is considering passing an amortization ordinance to address
nonconforming uses within its municipal boundaries. Such an ordinance would allow a
property owner to amortize the loss of the present use of the property (the nonconforming
use) over a specified period.1 The City will need to consider each property affected prior to
passing such an ordinance. A specific property owner’s interests may be considered if the
property owner challenges the ordinance. A court may consider the purchase price paid, the
investment costs, the income lost, and the cost of complying with the amortization ordinance
and balance those against the public interest served. Therefore, a longer period of time
lessens the economic impact on a property owner and makes the application of the ordinance
more reasonable (and, therefore the property owner’s argument less viable).
Background
The Illinois Municipal Code gives a municipality the authority to gradually eliminate existing
uses which are incompatible with the character of the district in which it is located.2 Section
11-13-1 of the Municipal Code states:
…
In all ordinances passed under the authority of this Division 13, due
allowance shall be made for existing conditions, the conservation of property
values, the direction of building development to the best advantage of the
entire municipality and the uses to which the property is devoted at the time of
the enactment of such an ordinance. The powers conferred by this Division 13
shall not be exercised so as to deprive the owner of any existing property of its
use or maintenance for the purpose to which it is then lawfully devoted, but
provisions may be made for the gradual elimination of uses, buildings and
structures which are incompatible with the character of the districts in which
they are made or located, including, without being limited thereto, provisions
(a) for the elimination of such uses of unimproved lands or lot areas when the
existing rights of the persons in possession thereof are terminated or when the
uses to which they are devoted are discontinued; (b) for the elimination of
1 See Village of Arlington Heights v. Krause, 16 Ill.App.3d 595, 598 (1973).
2 65 ILCS 5/11-13-1.
February 10, 2021
2
uses to which such buildings and structures are devoted, if they are adaptable
for permitted uses; and (c) for the elimination of such buildings and structures
when they are destroyed or damaged in major part, or when they have
reached the age fixed by the corporate authorities of the municipality as the
normal useful life of such buildings or structures.
…
An amortization ordinance must benefit the public health, safety, and welfare.3 If it does not,
it may be challenged.4 Like other ordinances, an amortization ordinance is entitled to a
presumption of validity.5 However, the right to continue a nonconforming use is a property
right, so an amortization ordinance depriving an owner of his/her property right without a
public need will not be upheld.6 Further, each case involving an amortization ordinance as
applied to a particular property is judged upon its own particular facts.7 Consideration is
given to the interest of the public and the property owner.8
Illinois courts have considered the follow factors when balancing a property owner’s interests
against the public interest: the purchase price paid by the property owner, the investment
costs by the property owner, the income loss by the property owner, and the cost of
complying with an amortization ordinance.9
Analysis
Illinois case law has dealt with ordinances with an amortization period as short as 6 months
and as long seven years and are outlined below. The following cases upheld an amortization
ordinance:
Village of Glenview v. Velasquez, 123 Ill. App. 3d 806 (1st Dist. 1984)
A 6-month amortization ordinance was allowed as applied to barbed wire on 6-foot
fencing. There was not enough evidence of damage to the property owner to
overcome the public benefit of removing a barbed wire fence from a residential area.
Cook County v. Renaissance Arcade and Bookstore, 122 Ill. 2d 123 (1988)
A 6-month amortization ordinance with an additional 6-month extension upon
application was allowed as applied to adult use establishments. The defendant did not
present any evidence of how it was harmed while the plaintiff presented more than
sufficient evidence of the public benefit.
3 See Village of Oak Park v. Gordon, 32 Ill.2d 295, 298 citing Brown v. Gerhardt, 5 Ill.2d 106 (1955) and
Schneider v. Board of Appeals of City of Ottawa, 402 Ill. 536 (1949).
4 See Oak Park, 32 Ill.2d at 298.
5 Id. at 296 citing Westfield v. City of Chicago, 26 Ill.2d 526 (1962), Marquette Nat. Bank v. Cook County, 24
Ill.2d 497 (1962), LaSalle Nat. Bank of Chicago v. Cook County, 12 Ill.2d 40 (1957).
6 See Oak Park, 32 Ill.2d at 298.
7 Id.
8 Id.
9 See Oak Park, 32 Ill.2d at 297 and Village of Glenview v. Velasquez, 123 Ill.App.3d 806, 810 (1984).
February 10, 2021
3
Village of Gurnee v. Miller, 69 Ill. App. 2d 248 (2d Dist. 1966)
A 3-year amortization ordinance was allowed as applied to a junkyard. There was not
enough evidence of damage to the property owner to overcome the public benefit of
removing a junkyard that dismantles automobiles and burns them causing emissions
of black smoke.
Village of Skokie v. Walton on Dempster, Inc., 119 Ill. App. 3d 299 (1st Dist. 1983)
An amortization ordinance allowing for a maximum of 7 years (based upon value)
was allowed as applied to signs. There was not enough evidence of economic
hardship to overcome the public benefit. In addition, in this case, the court included
that sign had been completely depreciated for federal income tax purposes.
The following cases struck down amortization ordinances; however, none of the decisions
were due to the length of time.
Village of Burr Ridge v. Elia, 23 Ill. App. 3d 350 (2d Dist. 1974)
The court stated a 1-year amortization ordinance for unimproved land would not be
upheld as it conflicts with the Municipal Code. The Municipal Code allows “for the
elimination of such uses of unimproved lands or lot areas when the existing rights of
the persons in possession thereof are terminated or when the uses to which they are
devoted are discontinued.” However, I would also note that the Village of Burr Ridge
is not a home rule municipality and the Municipal Code specifically states “[t]his
amendatory Act of 1971 does not apply to any municipality which is a home rule unit,
except as provided in item (12).” (Item 12 involves a municipality regulating political
signs.)
Village of Oak Park v. Gordon, 32 Ill. 2d 295 (1965)
A 5-year amortization ordinance was not allowed as applied to a multi-tenant use
limiting the number of residences from four to two. There was no evidence of a
public need for the restriction or that the public interest would be served while there
was evidence of a financial loss to the defendant.
Conclusion
The City of McHenry in passing an amortization ordinance should make clear the public
benefits to discontinuing the nonconforming uses within its municipal boundaries. The
amortization period will need to consider the properties affected, including the purchase price
paid, the investment costs, the income lost, and the cost of complying with the amortization
ordinance.
Z:\M\McHenryCityof\Amortization of Land Uses Memo.doc
Digital Commons @ Touro Law Digital Commons @ Touro Law
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2010
Abandonment, Discontinuance and Amor tization of Abandonment, Discontinuance and Amor tization of
Nonconforming Uses: Lessons for Drafters of Zoning Regulations Nonconforming Uses: Lessons for Drafters of Zoning Regulations
Patricia E. Salkin
Touro Law Center, psalkin@tourolaw.edu
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Part of the Land Use Law Commons
Recommended Citation Recommended Citation
38 Real Est. L.J. 486 (2010)
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Zoning and Land Use Planning
Patricia E. Salkin
*
Abandonment, Discontinuance and Amortization of
Nonconforming Uses: Lessons for Drafters of Zoning
Regulations
I. Introduction
Observing that a disproportionate number of reported cases
highlighted on the Law of the Land blog (www.lawoftheland.
wordpress.com) are opinions addressing the subject of
nonconforming uses, this column attempts to unravel some of
the legal issues that stem from poor drafting of these provi-
sions in zoning regulations, and demonstrates options for
practitioners and drafters to better regulate for the eventual
disappearance of nonconformities.
Early drafters of zoning legislation believed that some
uses of land were incompatible with others and that more ef-
cient employment of land resources would be achieved if
such incompatible uses were cleanly separated. The drafters
respected the “natural” patterns of development evidenced
by existing uses, and use districts established by law un-
avoidably included land devoted to uses proscribed by the
new zoning regulations.
1 However, for legal and political
reasons, the drafters avoided direct attacks on these
incompatible or nonconforming uses and instead permitted
existing uses to continue, albeit taking steps to gradually
eliminate them over time.
2 The early drafters took steps to
reduce the life expectancy of these nonconforming uses by
limiting their right to change, expand, alter, repair, restore,
or recommence after the use stopped for a specied period of
time.3 With such restrictions, the theory was that market
forces would eventually force operators and owners to elimi-
nate these nonconforming uses.
4 This expectation, however,
*Patricia Salkin is the Raymond & Ella Smith Distinguished Profes-
sor of Law and Director of the Government Law Center of Albany Law
School. This column is based on presentations by the author at the August
2009 ALI-ABA Land Use Institute in San Diego, CA, and the November
2009 Planning, Zoning and Eminent Domain Institute of the Center for
American and International Law in Dallas, TX.
486
has not been realized, and today the problems associated
with the regulation and desire to eliminate nonconforming
uses make up a signicant portion of land use related
litigation. The American Planning Association's Legislative
Guidebook on Smart Growth explains that in deciding how
to treat nonconforming uses, local governments must ad-
dress two competing principles: achieving ultimate confor-
mity balanced with fairness in requiring termination of a
use or demolition of a structure that was constructed or com-
menced in compliance with the law when the owner, relying
on the legality of the land use or structure at the time,
incurred time and money in maintaining the structure or
continuing the use.
5 More recently, attention has been
focused on the legal nonconformities of development
standards.6
The authority of a municipality to deal with nonconform-
ing uses may be broadened or narrowed by the enabling acts
which are the source of its zoning power.
7 However, most
states do not address the subject of nonconforming uses in
these statutes.
8 Therefore, the regulation of nonconforming
uses is left largely to municipalities and the unique ap-
proaches and language they may individually choose to
employ with respect to these uses. While there are many
aspects of a full discussion of the regulation of nonconform-
ing uses, this column is focused on the narrow issue of how
local governments seek to use their authority to eventually
eliminate nonconforming uses through regulatory determina-
tions of passive abandonment and/or discontinuance of the
use, and well as through the more active method of
amortization.
II. Abandonment or Discontinuance
Municipal legislatures have included in their zoning ordi-
nances specic provisions for the termination of nonconform-
ing uses based on the theory of discontinuance of use or
abandonment. Some ordinances terminate nonconforming
uses after a specied period of “abandonment” while other
regulations are drafted in terms of “discontinuance” of use,
or allowing a nonconforming structure to remain vacant.
9
The periods of vacancy, discontinuance, or abandonment
that may trigger a permanent cessation of use can range
from 30 days to two years.
10
Many jurisdictions have established a two-pronged subjec-
tive test to determine if a property owner has abandoned a
nonconforming use.
11 This test typically requires “(1) an
intention to abandon, and (2) some overt act or failure to act
Zoning and Land Use Planning
487
which carries a sucient implication that the owner neither
claims nor retains any interest in the subject matter of the
abandonment.”12 The owner has the burden of proof by a
preponderance of evidence to show “the use is a continuing
and denite intention.”
13 Other municipalities instead choose
to remove the element of intent. In these situations, discon-
tinuance provisions specically state that they operate to
prevent and prohibit resumption of a nonconforming use af-
ter a specied period of time has lapsed, regardless of
intent.14 This type of provision has been construed as
establishing a rule of evidence and operates even where there
is no intent to abandon or even where there was an intent
not to abandon.
15 While the courts have agreed that munici-
palities have power to impose such a restriction, they are
not in agreement as to whether it is alone sucient to
prevent resuming the nonconforming use.
16 A number of
courts still construe discontinuance as abandonment and
require proof of discontinuance for the specied period of
time to be supplemented by some proof of an overt act, or
failure to act, which would justify a nding that there had
been an intent to abandon the rights inherent in the
nonconforming use.
17
III. Drafting and Interpreting Ordinance Language
for Abandonment and Discontinuance
Absent statutory guidance, exactly what constitutes
abandonment or discontinuance of a nonconforming use is
up to the municipality in the rst instance. Much of the liti-
gation can be avoided if municipal drafters were more care-
ful in wording. What follows are examples of the common
approaches to drafting that demonstrate the variety of
choices municipalities must make. It is critically important
for municipal attorneys to review the applicable zoning
ordinance/law when it comes to the subject of nonconforming
uses to guide the municipality in a discussion for purposes of
ensuring that the ordinance, as written, will accomplish the
desired outcome. Furthermore, a preemptive examination of
the nonconforming use section of the zoning regulation can
help municipal attorneys and planners to identify vague pro-
visions and standards that can be claried prior to ap-
plicants, property owners and neighbors invoking a poorly
drafted regulation that is then left to the courts to interpret.
For example, consider the following issues:
Real Estate Law Journal [Vol. 38:4 2010]
488
1. What is the desired length of time for a
nonconforming use to have ceased for the
municipality to consider it abandoned and no lon-
ger legally recognized?
There is no “right” length of time for a municipality to al-
low a nonconforming property owner to cease or suspend
operation of the use before future use must conform to the
zoning regulation. This is a decision that each municipality
must make for itself. The common drafting problem is the
ordinances can be poorly written with vague and ambiguous
terms. Below are examples of both clear and unclear
ordinance provisions, as well as provisions that show a range
of time from 30 days to two years before abandoned or
discontinued nonconforming uses lose their preferred status
as such. These illustrative examples are then followed by
examples of recent litigation where the issue before the court
centered on the language of the zoning ordinance with re-
spect to time.
Examples from zoning ordinances:
a. “If such nonconforming use of land ceases for any
reason for a period of more than 30 days, any
subsequent use of such land shall conform to the
regulations specied by this chapter for the district in
which such land is located.” City of Grand Ledge, MI,
Charter, Part II, General Legislation, Chapter 220 Zon-
ing, Article XX: Nonconforming Lots, Structures and
Uses, § 220-93 Nonconforming uses of land (C).
b. “If any such nonconforming use of land ceases
for any reason for a period of more than 30 days,
any subsequent use of such land shall conform to the
regulations specied by this chapter for the district in
which such land is located.” City of El Reno, OK,
Charter, The Code, Part II, General Legislation,
Chapter 361 Zoning, Article V: Nonconformities,
§ 361-30 Nonconforming Uses of Land (C).
c. “Except as herein provided, no nonconforming use may
be reestablished after it has been discontinued or
vacated for a period of 180 days or more.” City of
Albany, NY, Chapter 375 Zoning, Article XIII, Sec.
375-90(A).
d. “When a nonconforming use of land, structure and
premises in combination is discontinued or aban-
doned for six consecutive months or for 18
months during any three-year period (except
when government action impedes access to the
Zoning and Land Use Planning
489
premises)the land, structure or structure and pre-
mises in combination shall not thereafter be used
except in conformity with the regulations of the district
in which it is located.” Borough of Gibbsboro, NJ, Part
II, General Legislation, Chapter, 400 Zoning, Article X:
Nonconforming Uses, § 400-77 Abandonment.
[Amended 2-15-1983 by Ord. No. 83-1].
e. “If any nonconforming use of land ceases for any
reason for a period of one hundred eighty con-
secutive days or more, any subsequent use of said
land shall conform to the regulations for the zoning
district in which the land is located.” Code of the City
of Evanston, WY, Chapter 24 Zoning, Article X Noncon-
forming Uses, Structures And Lots, § 24-98 Noncon-
forming use of land (C).
f. “If a nonconforming use of a building, structure or lot
is abandoned for a continuous period of one year,
subsequent use of such building, structure or lot shall
conform with provisions of this chapter. For purposes
of this chapter, abandonment shall commence when
the nonconforming use ceases.” Township of Doyles-
town, PA, Article XXI Zoning, sec. 175-112 (D).
g. “Shall not be reestablished if such use has for any rea-
son been discontinued for a period of over one year
. . .” Village of Bronxeville, NY, Chapter 310 Zoning,
Article V, sec. 310-25(A)(3).
h. “Whenever a nonconforming use has been discon-
tinued or in a non-operative status for a period
of one year or more, such use shall not thereafter be
reestablished, regardless of change of ownership, and
any future use shall be in conformity with the provi-
sions of this Code. The casual, intermittent temporary
or illegal use of land or buildings shall not be sucient
to establish the existence of a nonconforming use, and
the existence of a nonconforming use on a part of a lot
or tract shall not be construed to establish a noncon-
forming use on the entire lot or tract. Town of Bethany
Beach, DE, Chapter 245: ZONING, ARTICLE V Non-
conforming Uses and Structures, § 245-32.
Abandonment. [Amended 12-16-1983 by Ord. No. 123].
i. “When a nonconforming use of land ceases for
any reason for a period of more than one year,
its legal, nonconforming status is terminated.”
Town of Bridgeville, DE, Charter, The Code, Part II:
General Legislation, Chapter 234: Land Use and
Real Estate Law Journal [Vol. 38:4 2010]
490
Development, Article V: Nonconforming Situations,
§ 234-28: Nonconforming Uses (C) Termination of
nonconforming status.
j. “Without just cause, no building or portion thereof used
in whole or in part for a nonconforming use in a Resi-
dential or Commercial District which remains idle
or unused for a continuous period of 12 months,
whether or not the equipment or xtures are
removed, shall again be used except in conformity
with the regulations of the district in which such build-
ing or land is located.” Town of Fenwick Island, DE,
Charter, Part II, General Legislation; Chapter 160 Zon-
ing, § 160-6: General regulations; exceptions. (D)
Nonconforming uses. (2) Discontinuance of nonconform-
ing uses.
k. “If any nonconforming use of land or of a struc-
ture housing a nonconforming use ceases or is
discontinued for any reason for a period of 12 or
more consecutive months,any subsequent use of
such land or structure shall conform to the require-
ments of this chapter in all respects.” Town of Bar
Harbor, ME, Charter, The Code, Chapter 125 Land
Use, Article IV Nonconformity, § 125-54 Nonconform-
ing uses of land or structures. (E) [Amended 11-4-
2003].
l. “(A)If a nonconforming use of a building or land
is discontinued, razed, removed or abandoned
for 365 consecutive days, subsequent use of such
building or land shall conform with the regulations of
the district in which it is located. (B)Abandonment
shall commence on the date when customary ef-
forts to continue the use cease.” Code of the
Borough of Quakertown, PA (Bucks County), Chapter
27 Zoning, Part 4 General Regulations, § 406.
Nonconformities. (Ord. 983, 3/4/1992; § 4.6; as amended
by Ord. 1053, 9/1/1999, § II) 5. Abandonment.
m. “Abandonment: If any nonconforming use of land or a
building is discontinued for a period of two years
or more such land or building shall thereafter be used
or developed only in accordance with the terms of the
Abington Zoning Bylaw for the zoning district(s) in
which such property is located.” Abington, MA—Art.
XI Nonconforming Uses, Structures and Lots, sec.
175-70 (A).
n. “If a nonconforming use is discontinued for a period
Zoning and Land Use Planning
491
of 24 consecutive months, further use of the property
shall conform to this chapter or be subject to
review by the Zoning Board of Appeals.” Town of
Lake George, NY, Chapter 175 Zoning, Article VII, sec.
175-65.
2. Does it make a dierence whether the property
owner intended to abandon the use?
Typically zoning ordinances remove the element of intent
from an abandonment analysis, making it easier to prove
that the use had ceased for the applicable period of time.
Where intent is an element to be considered, evidentiary is-
sues can become problematic. What follows are examples of
provisions for zoning ordinances that illustrate various ap-
proaches to addressing the issue of intent, and then some
recent cases where intent was an issue.
Examples from zoning ordinances:
a. “A nonconforming use, if is discontinued for a continu-
ous period of six months, shall be deemed terminated
unless the property owner can demonstrate to the
reasonable satisfaction of the Planning and Zon-
ing Commission his or her intent to maintain and
continue such use.” Bethel, CT (Faireld County), sec.
118-40(D).
b. “Abandonment of a nonconforming use shall consist of
some act, or failure to act, which evidences the
owner's lack of intent to continue the nonconform-
ing use and is not refuted by any demonstration on
the part of the owner of an intent not to abandon
the use; provided however, that any involuntary inter-
ruption caused by catastrophe, if any nonconforming
use ceases for a period of one year, the owner will be
presumed to have abandoned the nonconforming use
unless such presumption is rebutted by substantial
evidence of intent not to abandon the use. Town of
Westerly, RI, Chapter 260 Zoning, Article VII, sec. 260-
32(B)(3).
c. “Intent to resume a nonconforming use shall not
confer the right to do so.” Village of Bronxeville, NY,
Chapter 310 Zoning, Article V, sec. 310-25(A)(3).
d. “If such nonconforming use of land ceases for any
reason for a period of more than 30 days, any subse-
quent use of such land shall conform to the regulations
specied by this chapter for the district in which such
land is located.” City of Grand Ledge, MI, Charter, Part
Real Estate Law Journal [Vol. 38:4 2010]
492
II, General Legislation, Chapter 220 Zoning, Article
XX: Nonconforming Lots, Structures and Uses, § 220-93
Nonconforming uses of land (C).
e. “If a nonconforming use of a building or land is
voluntarily abandoned and ceases for a continu-
ous period of one year or more, subsequent use of
such building or land shall be in conformity with the
provisions of this chapter.” Borough of Shippensburg,
PA, Part II General Legislation, Chapter 150 Zoning,
Article X Supplementary Regulations, § 150-48 Noncon-
forming structures and uses, (E) Abandonment.
f. “(C) Continuity of nonconforming uses.No noncon-
forming use may be reestablished after it has been
discontinued for 12 consecutive months. The
vacating of premises or structures or the non-
operative status of such premises or structures
shall be conclusive evidence of discontinued use
. . .” Township of Brecknock, PA, Part II: General
Legislation Chapter 110 Zoning, Article III Nonconform-
ing Lots, Uses and Structures, § 110-10 Nonconforming
uses and structures.
g. “(D)A nonconforming building or a building in
which a nonconforming use is conducted that is
damaged or destroyed by any casualty to any
extent may be restored within two years after
such destruction or damage but shall not be enlarged
except as provided in § 170-73 above. (E)If any
nonconforming use ceases for any reason for a
continuous period of two years or more, other
than for reasons beyond the control of the owner
of the property, except as provided in Subsection D
above, or is changed to or replaced by a conforming use,
the land and building thereupon shall be subject to all
the regulations as to the use for the zoning district in
which such land and building are located as if such
nonconforming use had never existed.” Rappahannock
County, VA, Part II, General Legislation Chapter 170
Zoning, Article VIII Nonconforming Uses § 170-74 Gen-
eral Regulations.
Recent Litigation:
In two recent cases involving the nonconforming use of a
single family home as a rental property, the courts in New
Jersey and Utah came to dierent determinations on
whether abandonment had occurred based on two very simi-
lar fact patterns.
18
Zoning and Land Use Planning
493
Some courts have not looked past the presumption of
abandonment created by a nonconforming use's statutorily
proscribed time period of inactivity. In those courts a show-
ing of intent to abandon a nonconforming use is not required
when the statutory time period of abandonment is reason-
able and specically stated in the ordinance.
19 Other courts
have ruled that intent is only important where some force
outside the control of the property owner prevents the
continuous use of the land in a particular manner. When
there is nothing involuntary about the cessation of the
nonconforming use, the showing of a landowner's intent to
abandon is not required.
20
Courts which follow this two-pronged approach requiring
a showing of intent and an overt act or failure to act, have
ruled that mere non-use is not sucient to establish the fact
of abandonment absent other evidence tending to prove the
intent to abandon.
21 According to such reasoning, although
the passage of time can create an inference of abandonment
there must be the additional showing of an intent to abandon
the nonconforming use before the nonconforming use is
deemed abandoned.
22 The longer the time of cessation the
greater the weight is attributable to that factor, but it can be
overcome with evidence of the owner's intent to resume
operation and factors which have prevented him/her from
continuing operation.
23
A zoning ordinance requiring a proof that a nonconform-
ing use was “voluntarily discontinued” for abandonment to
occur required proof of a manifest intention to abandon the
use coupled with acts or omissions implementing that
intent.24 Proof of a previous landowner's decision to dissolve
a corporation considered a pre-existing nonconforming use
and his choice to cease doing business suciently met this
burden, and when coupled with nonuse for a statutorily suf-
cient time period equated to abandonment of the noncon-
forming use.
25 Attempts to sell a property for uses other than
nonconforming uses, statements of the owner not to return
to the site in question, and removal of equipment integral to
the nonconforming use are all acts that have been found
equating to the abandonment of a nonconforming use.
26
Some courts have ruled that the actions and intent of the
current or prior landowner are crucial in determining
abandonment of a nonconforming use, while the actions and
intent of a lessee or future owner are irrelevant.
27
3. Can the Period of Abandonment/Discontinuance
be Extended?
Remembering that the goal of zoning is to ultimately bring
Real Estate Law Journal [Vol. 38:4 2010]
494
all parcels into compliance with the allowable uses in the
zoning district, it might seem peculiar to discuss whether a
municipality can extend the time of abandonment or discon-
tinuance of a nonconforming use beyond the time initially
set in the local regulation. However, some municipalities,
perhaps as a result of negotiation and compromise in the
drafting of new zoning regulations, do allow for this
possibility. These ordinance provisions should set forth the
specic circumstances that must exist for this to occur, as
well as describe the process that must be followed for the
requesting and granting of this extension. What follows are
examples.
Example from a zoning ordinance:
a. “The Zoning Board of Adjustment may, for good
cause shown, extend the period of permitted dis-
continuance up to three additional years, provided
that application in writing is made to the Board at least
60 days before the commencement date of such three-
year additional period.” City of Nashua, NH, Chapter
190, Article XII, sec. 190-122.
Recent Litigation:
Where the zoning ordinance is very strict regarding the
extension of the abandonment period, large scale operations
will be aected much more than small ones. Where an
injunction prevented the operation of a nonconforming use
landll, after the injunction was lifted the landll was not
able to become operational quickly enough not to be deemed
abandoned under the applicable ordinance. The controlling
statute contained no exception for a complex business such
as a landll, which required considerable startup and
development time for it to be functioning after the injunction
was lifted.
28
4. Can an abandoned nonconforming use be re-
established?
Although municipalities are typically strict in their quest
to eliminate nonconforming uses, some jurisdictions provide
a mechanism for the re-establishment of the nonconforming
uses. The rst example below seems to indicate that the
nonconforming uses shall be allowed to continue by special
permit. Where there are no conditions on the length of time
a special use permit is granted, and since such permit runs
with the land, this may in essence convert the nonconform-
ing use closer to a more permanent use. Further, should
municipalities desire to allow the nonconformity to continue,
Zoning and Land Use Planning
495
it might be better to either consider granting a use variance
if the subject property can meet the statutory test for such,
or consider rezoning to allow the use if it is no longer
considered oensive.
Examples from zoning ordinances:
a. “Any nonconforming structure use which has been
abandoned or not sued for a period of two years, or more
shall not be re-established,except by the granting of
a special permit from the Zoning Board of Appeals
in accordance with provisions of this ordinance.” Town
of Pittseld, MA, Town Code Article 23-8 Non-
conformities, Sec. 8.4 Abandonment and Non-Use.
b. “In the event that a nonconforming use of any
building or place is discontinued for a period of
six months, the use of the same shall thereafter
conform to the use permitted in the district in which it
is located;provided, however, that the Board of
Commissioners may permit a continuation of such
nonconforming building or premises.” Town of
Redington Shores, FL, Charter, Part II, General
Legislation Chapter 90 Land Development Regulations
Part 5 Zoning, Article XXV District Use Regulations,
§ 90-114 Nonconforming Uses. (C) Discontinuance of a
nonconforming use.
Recent Litigation:
Where a zoning ordinance stated that once a nonconform-
ing use is abandoned, it cannot be reestablished, the opera-
tion of a nonconforming use on property pursuant to a special
exception was deemed by a court to be abandonment of the
nonconforming use.
29 Once the special use permit is granted,
it becomes the operative document regarding the permitted
uses of the property, and the use of the property is no longer
considered a nonconforming use or the time period required
for abandonment begins.
30 However, the intent to discontinue
a nonconforming use cannot be proven where a municipality
forces a property owner to apply for a special use permit for
an activity substantially similar to the nonconforming use
and where the property owner has no intent to end the
nonconforming use.
31
5. Does use of the entire building need to be
abandoned to eliminate the nonconformity?
Another area that has been the subject of litigation sur-
rounds the question of exactly what constitutes a discontinu-
ance of use. For example, is it use of the building/structure
Real Estate Law Journal [Vol. 38:4 2010]
496
for any reason in whole, or just in part? Sometimes munici-
palities choose to use the phrase “substantial discontinu-
ance” or discontinuance of “substantially all” of the use. The
immediate problem is that the ordinances fail to dene the
term “substantial,” providing a eld day for negotiation be-
tween landowners and the municipality, and ultimately often
requiring court intervention due to poor drafting.
Examples:
a. “Any nonconforming use or portion thereof which
becomes unoccupied, unused or discontinued and
remains unoccupied, unused or discontinued during any
continuous period of twelve (12) months shall be
deemed an abandonment of the nonconforming use . . .”
City of Harrisburg, PA, Zoning Code 7-302.2 Reversion
of Nonconforming Structures, Buildings and Uses.
b. “The substantial discontinuance of any nonconform-
ing use for a period of one year or more terminates such
nonconforming use of a structure or premises, and
thereafter said structure shall not be used, except in
conformity with provisions of this ordinance.” Town of
Islip, NY, Chapter 68 Zoning, Article III, sec. 68-15(B).
Recent litigation:
In interpreting the Zoning Resolution of the City of New
York to determine the appropriate legal standard to deter-
mine whether a nonconforming use has been discontinued,
the New York Court of Appeals overturned both the trial
court and Appellate Division, concluding that substantial—
rather than complete—discontinuation of the active, noncon-
forming activity forfeits the nonconforming use, and that the
good faith of the owner is irrelevant to that determination.
32
Here, Section 52-61 of the Zoning Resolution prohibited
continuation of a nonconforming use if, during a two-year
period, “the active operation of substantially all the non-
conforming uses***isdiscontinued” (emphasis added).
The Board of Standards and Appeals found minimal ware-
house activity following the complete stoppage of operations
for 20 months, and held that this cessation failed to preserve
the nonconforming use status. As a result, the Board revoked
the building permit that had allowed the petitioner to
maintain a nonconforming use on the premises. The Court
upheld the Board's determination nding that it was sup-
ported by substantial evidence.
6. Are there exceptions to the period of abandon-
ment?
Most zoning ordinance provisions desire to eliminate
Zoning and Land Use Planning
497
nonconformities, and therefore leave no opportunity for dis-
continuance after the use is abandoned, unintentionally or
even involuntarily (e.g., due to an act of god). Occasionally,
however, a municipality chooses to overlook, or not count,
the period of time that a use was discontinued as a result of
certain intervening actions that are not within the control of
the property owner.
Example from a zoning ordinance:
a. “If any portion of the twelve month period of dis-
continuance is due solely to re, other casualty,
act of God, or action by a governmental jurisdic-
tion, including, inter alia, a proposal submitted to City
ocials for consideration of either a reuse of or a
continuation of the same use of the structure, then such
portion of time shall not be counted in the afore-
said twelve month period following which noncon-
forming use shall be deemed abandoned.” City of Har-
risburg, PA, Planning and Zoning Code, 7-703.2(c)(2).
Recent litigation:
Where a zoning ordinance contained a provision allowing
a nonconforming use fraternity to continue so long as the
fraternity's privileges were not revoked by the university for
more than a year, the revocation of privileges for more than
a year immediately expired the nonconforming use. The
subsequent lease of the property for use by another fraternity
within one year did not function to preserve the nonconform-
ing use.
33
7. What constitutes evidence of abandonment?
Some zoning regulations provide examples of what evi-
dence will be considered to assess whether the use has been
abandoned.
Examples from zoning ordinances:
a. “A nonconforming use shall be presumed abandoned
and its right as a nonconforming use extinguished when
any of the following has occurred:
“(A)If a nonconforming use of a building or land
is discontinued, razed, removed or abandoned for
365 consecutive days, subsequent use of such build-
ing or land shall conform with the regulations of the
district in which it is located. (B)Abandonment shall
commence on the date when customary eorts to
continue the use cease.” Code of the Borough of
Quakertown, PA (Bucks County), Chapter 27 Zoning,
Real Estate Law Journal [Vol. 38:4 2010]
498
Part 4 General Regulations, § 406. Nonconformities.
(Ord. 983, 3/4/1992; § 4.6; as amended by Ord. 1053,
9/1/1999, § II) 5. Abandonment.
b. “(C) Continuity of nonconforming uses. No nonconform-
ing use may be reestablished after it has been discontin-
ued for 12 consecutive months.The vacating of
premises or structures or the non-operative status
of such premises or structures shall be conclusive
evidence of discontinued use.(F) Restoration and
repair. (1) Restoration (c)The reconstruction shall
start within one year from the time of damage to
the structure.” Township of Brecknock, PA, Part II:
General Legislation Chapter 110 Zoning, Article III
Nonconforming Lots, Uses and Structures, § 110-10
Nonconforming uses and structures.
Recent Litigation:
As abandonment of a nonconforming use is often a ques-
tion of fact, many cases involve landowners arguing the zon-
ing board had incorrectly ruled that their nonconforming use
was abandoned. Landowners have been able to rebut the
presumption of the abandonment of a nonconforming use
through the use of adavits and by casting doubt on con-
trary evidence.
34 Half-hearted eorts of complying with
chronological requirements have not been sucient to rebut
the presumption of abandonment.
35
In Zall v. Zoning Board of Appeals of Salisbury,36 the
owner of property adjacent to a nonconforming use brought
an action seeking to annul a special permit granted to the
nonconforming use property owner (defendant) by the zoning
board (co-defendant). The special permit authorized the de-
fendant to change a prior nonconforming use of its beachfront
property from a nightclub to a restaurant. The trial court
vacated the board's decision to grant the special permit
concluding the defendant had abandoned the nonconforming
use. The defendant appealed. The applicable zoning ordi-
nance stated that nonconforming uses cease to exist after
two years of non-use. Aware that the two-year period set
forth in the by-law was about to expire, the defendant made
what the judge viewed as a weak eort to open for business
in August, 2001. The defendant obtained a temporary ten-
day permit to serve “prepackaged food with milk.” However,
he did not purchase new goods for sale, and the only food
available was several years old. The defendant was on the
premises several hours each day during the ten-day period,
with the lights on and the door unlocked, but did not make
Zoning and Land Use Planning
499
any sales. The defendant did not advertise the business or
do anything that would put the public on notice that a food
establishment had opened. A month later, the defendant
threw the items out. The Court did not nd the defendant's
actions to be a sucient showing of operation of his business
to reverse the trial court's determination that the noncon-
forming use was abandoned. As a result, the lower court's
decision to vacate the zoning board's decision to grant a
special permit to NEBC was armed.
37
8. Can an abandoned use be converted to a less
intensive nonconforming use?
Typically zoning ordinances provide that abandoned uses
may resume or be converted to a less intensive nonconform-
ing use. Courts prohibit the conversion back to the more
intensive use.
38 Likewise, courts have not allowed the rever-
sion to a previously abandoned more expansive nonconform-
ing use once it has been abandoned.
39 Where the owner of a
prior nonconforming use billboard improperly added lights
to the sign, he did not abandon the original nonconforming
use. The court ruled that an improper expansion of a
nonconforming use does not equate to an overt act of
abandonment as the original use was not abandoned.
40 On
the other hand, where a nonconforming use deli was
converted into a take-out Chinese restaurant which operated
beyond the authorization the zoning board granted to the
deli, the original nonconforming use was deemed
abandoned.41 The subsequent reversion of the property to a
deli use was not possible as the court ruled the nonconform-
ing use was abandoned by the prolonged improper use as a
Chinese restaurant.
42 The sale of alcohol by a restaurant has
been considered an accessory use and not an expansion nor
a separate and distinct use to a nonconforming restaurant.
43
As such the decision of a previous owner of a nonconforming
use to stop serving alcohol for several years did not aect
the restaurant's ability to serve alcohol in a restaurant
setting.44
IV. Amortization
A more active or aggressive method of eliminating non-
conforming uses is amortization. This concept has its roots
in the early 1915 case of Hadacheck v Sebastian, 239 U.S.
395 where the Court conrmed that the City could eliminate
the brickyard use on the property in question without such
action necessitating compensation. Amortization has always
been a controversial tool, gaining most notoriety perhaps in
Real Estate Law Journal [Vol. 38:4 2010]
500
the 1960s and 1970s as advocates attempted to use this
method to force the removal of billboards along highways.
By 1978, governments were prohibited from using amortiza-
tion to remove these signs on federally funded highways
absent compensation. While few states have specic statu-
tory guidance on amortization, the general rule from com-
mon law is that the property owner/user must be given
enough time to realize a reasonable return on their
investment. Although courts approach amortization issues
on a case-by-case basis, a balancing test is typically employed
to weigh the value to the public in eliminating the use and
the harm or private loss suered as a result of the
amortization.
What follows are examples from local zoning laws and or-
dinances demonstrating various approaches to implementing
amortization eorts. Readers must keep in mind, however,
the need for appropriate balancing.
1. Time for the Nonconforming Use to Conform
a. “Any adult arcade, adult bookstore, adult cabaret, adult
entertainment establishment, adult motel, or adult mo-
tion picture theater, as dened in this Ordinance, in ex-
istence at the time of adoption of this Ordinance which
violates or does not conform to the provisions hereof
(hereafter, a “pre-existing, non-conforming business”)
shall conform to the provisions of this Ordinance
within a period of three (3) years from said adop-
tion of this Ordinance.” City of Jackson, MS, Article
XIII, § 1303.03-A. Amortization of Non-conforming Use.
b. “Any nonconforming open use of land or any nonconform-
ing billboard or advertising structure not attached to a
building, but which lawfully existed at the time that
this Ordinance became eective,shall be discontinued
within ve (5) years from the date of its passage.”
Howard County, IN, Ch. 6, § 6.1. Amortization of
Nonconforming Uses or Buildings.
c. “The lawful use of buildings or land existing at the ef-
fective date of this Ordinance which does not conform to
the provisions of this Ordinance shall be discontinued
within a reasonable period of amortization of the build-
ing; uses of buildings and land which become non-
conforming by reasons of a change in this Ordinance
shall also be discontinued within a reasonable period of
amortization of the building. A reasonable period of am-
ortization shall be construed to being after the date of
adoption of this Ordinance and shall be consid-
Zoning and Land Use Planning
501
ered to be thirty (30) years for buildings of ordi-
nary wood construction, forty (40) years for build-
ings of wood and masonry construction, and fty
(50) years for buildings of reproof construction.”
County of Redwood, MN, § 21(1). Non-conforming Uses.
d. “The Board, under authorization of State statute, may
provide for the timely modication or removal of a
nonconforming structure or use of land.A maximum of
a ve (5) year period may be granted in which the
nonconforming use shall be modied or removed
in order to comply with the General Plan and Zoning
Ordinance. The Board may provide for a shorter time
period by providing a formula establishing a reasonable
time period during which the owner can recover or am-
ortize the amount of any investment in the nonconform-
ing use or structure, if any.” Layton City, UT, Ch.
19.15.080. Amortization of nonconforming uses.
e. “If, after holding public hearings, the Planning Commis-
sion determines that the continuance of a nonconform-
ing use is detrimental to the health, safety or welfare of
a neighborhood, the nonconforming use shall be com-
pletely removed or converted to a conforming use within
an amortization period prescribed by the City Council.
The Planning Commission shall establish conditions for
the operation of the nonconforming use during the am-
ortization period (not less than 5 years nor more
than 40 years, depending upon the impact the
nonconforming use has on the surrounding
neighborhood).” City of Florence, OR, Title 10, § 10-
8-8. Removal of Nonconforming Uses.
f. “The board may require the removal or discontinuance
of a nonconforming use in any residential district which
does not meet the allowable use standards for the zone
in which it is contained. The removal of nonconforming
uses may be accomplished only in the following 2 ways:
A. Nonconforming signs, temporary structures, open
air storage facilities, or parking facilities shall be
required to be removed 5 years from the date of this
ordinance,when, after a hearing as provided in section
150.023, the commission nds the uses to be inconsis-
tent or incompatible with surrounding land uses.
B. Nonconforming use in a permanent structure,
except as described in section 150.144(D), may only be
required to be removed when, after a hearing as provided
in section 150.023, the commission nds that the
nonconforming use is inconsistent or incompatible with
Real Estate Law Journal [Vol. 38:4 2010]
502
surrounding land uses, and the nonconforming use is
not necessary to the surrounding residential areas in
that location. If the commission recommends the use be
discontinued, the board is required to give the owner no-
tice and serve notice to subsequent owners that the use
of the land or structure is to be amortized. The amorti-
zation period shall relate to the market value of the
property.Any structure having a market value less
than $5,000.00 shall be given an amortization pe-
riod of 2 to 5 years. Any structure with a market
value over $5,000.00 shall be given an amortiza-
tion period of not less than 5 years or more than
25 years from the date of the hearing. If the
nonconforming structure or use is not removed or
discontinued within 6 months of the end of the
amortization period, the owner shall be subject to
a ne of not more than $500.00 per day or other
court action which the village deems necessary.
45
2. Extension of the Nonconforming Use to
Conform
a.“The City Planning Board may grant an extension
of time for continued operation after the conclu-
sion of this grace period if the owner of the pre-
existing, non-conforming business proves that he
is unable to recoup his investment in such enter-
prise by that date. In order to secure an extension
of time, the owner must submit to the City Plan-
ning Board a written request for such extension
at least sixty (60) days prior to the expiration of
the three (3) year grace period.No application for
extension received by the City Planning Board after
such time shall be considered. This information shall be
supported by relevant documentary evidence such as
nancial statements and tax records. Copies of such
documentary evidence must be attached to the request
for extension, and refusal or failure to provide this in-
formation as required shall constitute a waiver of the
right to seek an extension of time in which to operate.
Such written request shall set forth the following
information:
a. The amount of the owner's investment in the pre-
existing, non-conforming business through the eective
date of this Ordinance;
b. The amount of such investment that has been or
will have been realized at the conclusion of the three-
year grace period;
Zoning and Land Use Planning
503
c. The life expectancy of the existing enterprise;
d. The existence or nonexistence of lease obligations,
as well as any contingency clauses therein permitting
termination of such lease.
The City Planning Board shall notify an applicant for
an extension of time of the time and place of a hearing
to be held on such request before the City Planning
Board. After such hearing, the City Planning Board
shall issue a written order on the request for extension.
If the owner desires to appeal the City Planning Board's
order, said appeal may be taken by following the
procedures for appeal to the City Council pursuant to
the provisions of the Zoning Ordinance of Jackson, Mis-
sissippi, as amended. Extensions that are granted shall
specify a date certain for closure, and shall not be valid
for operation at any other location.” City of Jackson,
MS, Article XIII, § 1303.03-A. Amortization of Non-
conforming Use.
b. “The owner or operator of a nonconforming use
may apply to the City Council for an extension of
time within which to terminate the nonconform-
ing use. An extension shall be for a reasonable pe-
riod of time commensurate with the investment
involved and shall be approved if the City Council
makes all of the following ndings or such other
ndings as are required by law:
(1) The applicant has made a substantial investment
(including but not limited to lease obligations) in the
property or structure on or in which the nonconforming
use is conducted; such property or structure cannot be
readily converted to another use; and such investment
was made prior to September 27, 2005.
(2) The applicant will be unable to recoup said invest-
ment as of November 24, 2006.
(3) The applicant has made good faith eorts to recoup
the investment and to relocate the use to a location to
meet the requirements of this Chapter.” Santa Monica,
CA, Ch. 9.44.040. Amortization of nonconforming uses.
c. “A nonconforming use due to be terminated pur-
suant to this section may be extended upon ap-
plication for a special approval for such extension
from the Board of Appeals.Such approval shall not
be granted unless the applicant establishes and the
Board of Appeals nds that, notwithstanding the fteen
year period for amortizing a nonconforming use created
by the 1991 amendment referred to above, termination
Real Estate Law Journal [Vol. 38:4 2010]
504
of the nonconforming use would cause serious nancial
harm to the property owner not balanced or justied by
the advantage to the public in terms of more complete
and eective zoning accruing from the cessation of such
use. In making this determination the Board shall
consider, among other factors (including the factors set
forth elsewhere in this chapter relating to the issuance
of special permits or approvals), i) the nature of the
nonconforming use; ii) the cost of converting to a
conforming use; iii) the amount of investment that
existed in the property on March 1, 1991, or if the zon-
ing change creating the nonconformity was adopted af-
ter March 1, 1991, the amount of such investment on
the date of such later zoning change; iv) the detriment
caused by the nonconforming use; v) the character of
the neighborhood; vi) the ability of the landowner to
have amortized the cost of the landowner's investment
over the period between March 1, 1991 (or such later
zoning change date) and the required termination of
such use; and vii) whether an additional reasonable
amount of time is needed by the owner to amortize the
owner's investment. In making its determination the
Board shall disregard, as irrelevant, any costs for
purchase of a nonconforming building or property or
costs to repair, maintain, improve or enlarge a noncon-
forming property, incurred after March 1, 1991, or, if
the nonconformity was created by a subsequent zoning
change, any such costs incurred after such change. If
the extension is granted, the Board of Appeals shall set
a xed additional period for the extension of time before
the nonconforming use must be terminated.” Town of
Ithaca, NY, § 270-214. Amortization of certain noncon-
forming uses related to pre-1991 residential occupancies.
3. Rebuilding of Damaged Nonconforming Use
a. “No structure damaged by re or other causes to the
extent of more than triple its assessed value shall be
repaired or rebuilt except in conformity with the provi-
sions of this Ordinance, provided, however, that this
requirement shall not apply with respect to any struc-
ture used exclusively for residential purposes.” Howard
County, IN, Ch. 6, § 6.1. Amortization of Nonconform-
ing Uses or Buildings.
b. “No buildings damaged by re or other causes excluding
residences and farm buildings, to the extent that their
restoration will cost more than sixty (60) percent of
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505
their fair cash value shall be repaired or rebuilt except
to conform to the provisions of this ordinance.” Logan
County, IL, § 9.4. Amortization of Nonconforming Uses
or Buildings.
c. “Structures incurring damage of less than 50 percent
(50%) of fair market value above the foundation may be
restored, reconstructed and used as before, provided
that such restoration is commenced within six (6)
calendar months from the date damages were incurred.
If reconstruction is not commenced within six (6)
months, the use of said land or structure shall thereaf-
ter conform with the provisions of this Ordinance. Fair
market value shall be determined by reference to cur-
rent statutory provisions pertaining to real estate as-
sessment and the records of the county assessor.” City
of Snellville, GA, Article V, § 5.7. Amortization and
Discontinuance.
V. Conclusion
A substantial portion of the litigation surrounding
nonconforming uses could be avoided with better drafting of
zoning ordinance provisions. Areas that have attracted a sig-
nicant amount of nonconforming use litigation involve
abandonment or discontinuance of use and amortization.
Property owners are typically not anxious to give up the
property interest that accrues from nonconforming use
status. Sometimes property owners are not aware of the
specic regulations governing their nonconforming use, other
times, the use may have inadvertently ceased for the
requisite period of time. Still, often disagreements result
from ambiguities in the regulations themselves. Attorneys
who nd themselves in a position to assist municipalities
with the drafting of nonconforming use provisions should be
mindful of the pitfalls in failing to specify exact desires of
the municipal client in dealing with such uses. Practitioners
whose clients desire to challenge vague and ambiguously
worded provisions may be pleasantly surprised at the body
of caselaw that has developed that may support these posi-
tions, as well as the wealth of examples available from other
jurisdictions that could be used to demonstrate more specic
and clearer language for addressing municipal desires.
NOTES:
1Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-7
Real Estate Law Journal [Vol. 38:4 2010]
506
(Thomson Reuters/West 5th ed. 2009).
2Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-7
(Thomson Reuters/West 5th ed. 2009).
3Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-7
(Thomson Reuters/West 5th ed. 2009).
4Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-7
(Thomson Reuters/West 5th ed. 2009).
5Stuart Meck, Growing Smart Legislative Guidebook vol. 2, sec. 8-111
(American Planning Association 2002 ed. Jan. 2002).
6See, V. Gail Easley and David A. Theriaque, “Distinguishing Between
Detrimental and Benign Nonconformities,” Zoning Practice (American
Planning Association, November 2009).
7Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-10
(Thomson Reuters/West 5th ed. 2009).
8Patricia E. Salkin, American Law of Zoning, vol. 2, sec. 12-10
(Thomson Reuters/West 5th ed. 2009).
9Patricia E. Salkin, American Law of Zoning, vol. 2, 12-233 to 12-235
(Thomson Reuters/West 5th ed. 2009).
10Patricia E. Salkin, American Law of Zoning, vol. 2, 12-233 to 12-235
(Thomson Reuters/West 5th ed. 2009).
11Karas v. Foss, 2008 WL 859504 (N.J. Super. A.D., 2008) (citing S &
S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Borough of Stratford,
373 N.J. Super.603, 613 (App. Div. 2004)) citing Borough of Saddle River
v. Bobinski, 108 N.J. Super.6, 16–17 (Ch. Div. 1969).
12Karas v. Foss, 2008 WL 859504 (N.J. Super. A.D., 2008) (citing S &
S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Borough of Stratford,
373 N.J. Super.603, 613 (App. Div. 2004) citing Borough of Saddle River
v. Bobinski, 108 N.J. Super.6, 16–17 (Ch. Div. 1969).
13Karas v. Foss, 2008 WL 859504 (N.J. Super. A.D., 2008) (citing S &
S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Borough of Stratford,
373 N.J. Super. 603, 613 (App. Div. 2004) (citing Villari v. Zoning Bd. of
Adj. of Deptford, 277 N.J. Super.130, 137 (App. Div. 1994)).
14Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning,
4 RLZPN § 74:3 (2009).
15Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning,
4 RLZPN § 74:3 (2009).
16Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning,
4 RLZPN § 74:3 (2009).
17Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning,
4 RLZPN § 74:3 (2009).
18Euneva v. Keansburg Planning Board of Adjustment, (PDF COPY of
opinion), Superior Court of New Jersey, Monmouth County, (Decided:
November 5, 2008 & Approved for Publication: May 26, 2009), and Vial v.
Provo City, 2009 UT App 122 (Utah Ct. App. 2009).
19McKenzie v. Town of Eaton Zoning Board of Adjustment, 154 N.H.
773 (N.H. 2007), and Village of Waterford v. Amna Enterprises, Inc., 27
A.D. 3d 1044 (N.Y. App. Div. 2006), and Sun Oil Co. of PA v. Board of
Zoning and Land Use Planning
507
Zoning Appeals of the Town of Harrison, 57 A.D.2d 627 (N.Y. App. Div.
1977).
20City of Red Bank v. Phillips, 2007 WL 4460223 (Tenn. Ct. App.
2007).
21Ghindia v. Buckeye Land Development, LLC., 2007 Ohio App.
LEXIS 694, **12 (Ohio Ct. App., 2007).
22Karas v. Foss, 2008 WL 859504 (N.J. Super. A.D., April 2, 2008).
23S&S Auto Sales, Inc. v. Zoning Board of Adjustment for the Borough
of Stratford, 373 N.J. Super. 603, 624. (N.J. Super. Ct. App. Div. 2004).
24Ghindia v. Buckeye Land Development, LLC., 2007 Ohio App.
LEXIS 694, **12 (Ohio Ct. App., 2007).
25Ghindia v. Buckeye Land Development, LLC., 2007 Ohio App.
LEXIS 694, **12 (Ohio Ct. App., 2007).
26Pezzullo v. Ure, 2008 R.I. Super. LEXIS 167, *18 (R.I. 2008).
27Face Value, LLC v. Zoning Board of Appeals of Town of East
Hartford, 2008 Conn. Super. LEXIS 2931 (Conn. Super. Ct. 2008), Karas
v. Foss, 2008 WL 859504 (N.J. Super. A.D., April 2, 2008), Gem City
Metal Spinning Co. v. City of Dayton Board of Zoning Appeals, 2008 WL
185535 (Ohio Ct. App. 2008), Palmieri Cove Associates v. City of New
Haven Board of Zoning Appeals, 2006 Conn. Super. LEXIS 848 (Conn.
Super. Ct. 2006).
28Custom Land Development, Inc. v. Coopertown Board of Zoning
Appeals, 168 S.W.3d 764, 775 (Tenn. Ct. App. 2004).
29Purich v. Draper Properties, Inc., 395 Md. 694 (2006).
30Smith Bros. Woodland Management, LLC v. Zoning Board of Appeal
of Town of Brookeld, 108 Conn. App. 621 (Conn. App. Ct. 2008), Purich
v. Draper Properties, Inc., 395 Md. 694 (2006).
31Greer v. Washougal Motorcross, LLC., 2007 Wash. App. LEXIS 497,
*11 (Wash. Ct. App. 2007).
32Toys R Us v. Silva, 89 N.Y.2d 411, 676 N.E.2d 862, 654 N.Y.S.2d
100 (1996).
33Schweizer v. Board of Adjustment of City of Newark, 2009 WL
597630 (Del. 2009).
34Bialik v. Stambaugh Township, 2008 WL 1885772 (Mich. Ct. App.
2008), and Finn v. Zoning Hearing Board of Beaver Borough, 869 A.2d
1124 (Pa. Commw. Ct. 2005).
35Zall v. Zoning Board of Appeals of Salisbury, 73 Mass. App. Ct. 1103
(Mass. App. Ct. 2008).
36Zall v. Zoning Board of Appeals of Salisbury, 73 Mass. App. Ct. 1103
(Mass. App. Ct. 2008).
37Zall v. Zoning Board of Appeals of Salisbury, 73 Mass. App. Ct. 1103
(Mass. App. Ct. 2008).
38Taylor v. Zoning Board of Appeals of City of Evanston, 375 Ill. App.
3d 585 (Ill. App. Ct. 2007).
39Town of Orange v. Shay, 68 Mass. App. Ct. 358 (Mass. App. Ct.
2007).
Real Estate Law Journal [Vol. 38:4 2010]
508
40Pallco Enterprises, Inc. v. Denton Beam, 132 Cal. App. 4th 1482,
1498 (Cal. App. Dep't Super. Ct. 2005).
41Gorgone v. District of Columbia Board of Zoning Adjustment, 2009
D.C. App. Lexis 179 (2009).
42Gorgone v. District of Columbia Board of Zoning Adjustment, 2009
D.C. App. Lexis 179 (2009).
43City of Okoboji v. Okoboji Barz, Inc., 746 N.W.2d 56 (Iowa 2008).
44City of Okoboji v. Okoboji Barz, Inc., 746 N.W.2d 56 (Iowa 2008).
45Mt. Zion Code sec. 150.146 (1999).
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