Request By:
J. Gregory Wehrman, Esq.
301 Pike Street
Covington, Kentucky 41011
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions concerning zoning, most of which pertain to nonconforming uses. The fifth class city of Lakeside Park has a zoning ordinance regarding nonconforming uses which in part prohibits the reconstruction of a nonconforming building or structure where the damage from fire, flood, explosion, earthquake, war, riot or act of God exceeds fifty percent of the fair market value above the foundation. You state that this provision appears to conflict with the holding in the case of
Louisville & Jefferson County Planning & Zoning Commission v. Stoker, Ky., 259 S.W.2d 443 (1953).
Your first question is as follows:
"Is the Lakeside Park Ordinance as to prohibition of reconstruction of nonconforming uses valid in view of current case law in Kentucky?"
The present statute concerning nonconforming uses is KRS 100.253 and it provides:
"(1) The lawful use of a building or premises, existing at the time of the adoption of any zoning regulations affecting it may be continued, although such use does not conform to the provisions of such regulations, except as otherwise provided herein.
(2) The board of adjustments shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted. Nor shall the board permit a change from one nonconforming use to another unless the new nonconforming use is in the same or a more restrictive classification."
In the Stoker case, supra, the nonconforming use structure was completely destroyed by a flood and the owner sought to rebuild. The Court of Appeals affirmed the lower court's decision which required the issuance of the permit to rebuild the structures which had been destroyed. The Court recognized that the applicable statute had formerly contained a seventy-five percent destruction clause concerning the reconstruction of damaged nonconforming structures but that particular clause had been removed from the statute prior to Stoker's attempt to rebuild his nonconforming use structure.
In
Butler v. Louisville & Jefferson County Board of Zoning Adjustment and Appeals, 311 Ky. 663, 224 S.W.2d 658 (1949), the Court concluded that the owner of a nonconforming use structure could demolish the existing structure and construct a new, larger building. The applicable statutes in that case (KRS 100.068 and 100.069, repealed in 1966) did not prevent the structural alteration or reconstruction of a building used for the same purposes as the original nonconforming use structure.
The present statute concerning nonconforming uses (KRS 100.253) does not prevent the reconstruction of nonconforming use structures and does not authorize or contain a destruction clause in regard to rebuilding structures which have been destroyed. It states that a nonconforming use may continue subject to the statutory exceptions. That statute, however, does not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation. Under the case law cited above and the nonconforming use statute as it exists today, a nonconforming use structure, particularly one destroyed by casualty (fire, flood, earthquake, explosion, etc.), may be reconstructed subject to the limitations which are set forth in the statute. The city cannot prevent reconstruction by the inclusion of a destruction clause as a zoning ordinance cannot conflict with a state statute,
City of Paducah v. Johnson, Ky., 522 S.W.2d 447 (1975).
Your second question asks:
"Under KRS 100.253(2), may the operator of a nonconforming use (restaurant) expand his parking lot to accomodate clientele? "
KRS 100.253(2) provides in part that the board of adjustment shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted. Subsection (1) of KRS 100.253, relating to nonconforming uses, merely refers to the lawful use of a building or premises. KRS 100.111(12) includes within the definition of a nonconforming use both use and structure by providing that nonconforming use or structure means an activity or a building, sign, structure or a portion thereof which lawfully existed before the adoption or amendment of the zoning regulation, but which does not conform to all of the regulations contained in the zoning regulation which pertain to the zone in which it is located. See also OAG 72-370, copy enclosed, where the term "nonconforming use" was defined to comprehend both the physical structure on the land and the functional use of the land or structure.
In
Attorney General v. Johnson, Ky., 355 S.W.2d 305 (1962), the Court said that the policy and spirit of the zoning law of this state ordains the gradual elimination of nonconforming uses and the general intent is to hold nonconforming uses within strict limits. Furthermore, in
Franklin Planning & Zoning Commission v. Simpson County Lumber Company, Ky., 394 S.W.2d 593 (1965), the Court stated that such nonconforming uses as are tolerated under the law cannot be enlarged.
We cannot find any Kentucky case involving the permissibility of an extension of the nonconforming use of premises for the parking of motor vehicles, beyond the area actually devoted thereto at the time of the effective date of the applicable zoning ordinance. The cases from other jurisdictions go both ways. However, on the basis of the provisions of the applicable Kentucky statutes, and considering the policy and spirit of the zoning law of this state as expressed by the Court, it would be our opinion that the operator of a nonconforming use structure and premises cannot expand his parking lot to accomodate additional clientele.
Your third question asks:
"May a city zone property which is already fully developed, under a zoning classification which does not accurately reflect the existing use of the property?"
We first direct your attention to KRS 100.183 (Comprehensive plan required) and KRS 100.187 (Contents of comprehensive plan). Note particularly the statutes pertaining to "Zoning Regulations. " KRS 100.201 authorizes zoning and sets forth the objectives to be achieved, while KRS 100.203 sets forth the required contents of zoning regulations. In absence of a specific factual situation we can only suggest that you apply these statutes to whatever particular situation you might have in mind.
Your last question asks:
"May a city vest in its Board of Adjustments the discretion as to permitting the reconstruction of a nonconforming structure?
While the Board of Adjustment has limited powers under the statutes, it is, pursuant to KRS 100.253, responsible for not permitting the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which made its use nonconforming was adopted. Thus, as stated in OAG 72-542, copy enclosed, the Board of Adjustment, and not the city council, is responsible for enforcing the requirements relating to nonconforming uses. However, we have already stated that a nonconforming use structure can be reconstructed within the requirements of KRS 100.253(2). The reconstruction of a nonconforming use structure is not, by itself, a matter over which the Board of Adjustment may exercise its discretion.
Other sources which we have considered in attempting to answer your questions but which have not been mentioned previously include McQuillin Mun. Corp. (3rd Ed.), Vol. 8A, §§ 25.180 to 25.212; Dukeminier and Stapleton, The Zoning Boardof Adjustment: A Case Study in Misrule, 50 Ky. L.J. pp. 273-350 (1961-62); and two annotations concerning zoning and nonconforming uses, 87 ALR 2d 4 and 57 ALR 3rd 419.