Request By:
Mr. Paul P. Tice
Acting Planning Director
City of Elizabethtown
P.O. Box 550
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of December 19 in which you, as Director of the Elizabethtown Planning Office and Staff Assistant to the Board of Adjustment, raise a question concerning the proper interpretation of the phrase "scope and area of its operation" in regard to the expansion to nonconforming uses found under KRS 100.253 (2).
Subsection (2) of KRS 100.253 reads in part as follows:
"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, . . ." (Emphasis added).
With respect to the above quoted section of the statute you relate the following factual situation and seek our opinion as to whether or not the increase in the structural area requested would be in violation of the above mentioned statute.
"As a case in point let me relate to you a case that we are currently considering. Mr. Smith owns 2.21 acres of residentially zoned land on which he is operating a Machine and Welding Shop. The machine shop existed prior to the Zoning Ordinance and therefore has nonconforming use status. Mr. Smith proposed to build a 60X30 foot addition onto his existing shop. The addition will be used for storage and some light assembly work, both of which are curmently being done in the yard surrounding the shop. We are unclear as to whether or not we may allow Mr. Smith to increase the structural area dedicated to the nonconforming use even though the proposed addition will not significantly increase the nonconforming activity."
The restriction controlling the expansion of nonconforming uses includes not only a change in the use of the property but also structural changes which are substantial changes and not merely changes incidental to the operation of the nonconforming use. See Attorney General v. Johnson, 355 S.W.2d 305 (1962). It is also pointed out in the case of Bosworth v. Lexington, 277 Ky, 90, 125 S.W. 2D 395 (1939), that proposed changes in nonconforning uses which specifically relate to the use that was maintained prior to the adoption of the zoning ordinance making it nonconforming, should be liberally construed in order to carry out the spirit of the law and prevent a hardship to the owner.
In the present instance the proposed change involved the construction of a 60 X 30 foot addition onto the existing machine and welding shop to be used for storage and some light assembly work, both of which are presently carried on in the yard surrounding the shop. We view this proposed change as not being a vital or substantial change in the building but one simply to incase or envelop an area that is presently used in the open for the operation of the nonconforming use. In this respect we refer to the case of Carrithers & Son v. City of Louisville, 250 Ky. 462, 63 S.W.2d 493 (1933), wherein the court appeared to have before it a similar question which it answered as follows:
". . . The extending the walls of the building so as to enclose space for the relocating the can-washing and by-products rooms is not a vital and substantial change of the building in its characteristic or of the fundamental purpose of its creation, nor is it a change of such a nature as materially affects the realty itself, or its use, or the health, morals, or general welfare of the zoned district. Plaza Amusement Co. v. Rothenberg, 159, 179 N. Y. S. 176. The application for the permit requests no more than a structural alteration and not a structural change within the meaning of these terms. City of Earle v. Schackleford, 177 Ark. 291, 6 S.W. (2d) 294. 'Structural alterations' intended to be prohibited by the zoning ordinance are the changing an old building in such a way as to convert it into a new or substantially different structure. . . ."
It would thus appear that the proposed construction of the additional building attached to the existing machine and welding shop would come within the scope and operation of the present nonconforming use and may, we believe, be approved by the board of adjustment.