Request By:
Hon. Charles G. Franklin
Franklin, Hobgood, Hibbs & Troop
P. O. Box 195
Madisonville, Kentucky 42431
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of June 28 in which you, on behalf of the City of Madisonville, raise a question concerning the validity of a provision of the city's zoning ordinance providing for the abandonment of nonconforming uses. Your factual situation involves a property owner who placed three mobile home units on his property prior to the enactment of an ordinance zoning the property as R-2 residential which in effect declared the trailers located on said property a nonconforming use. Section 156.05(5)(b) of the ordinance governing the discontinuance of nonconforming uses reads as follows:
"Discontinuance of nonconforming uses. No building or portion thereof used in whole or in part for a nonconforming use in a residential district, which remains idle or unused for a continuous period of two years, whether or not the equipment or fixtures are removed, shall again be used except in conformity with the regulations of the residential district in which it is located."
Following the enactment of the ordinance, the property owner removed one of the trailers and two remained for a period exceeding two years. Now the landowner wishes to remove one unit and replace it with two new homes bringing the total number back up to three. Under the circumstances you raise the following questions:
"Is Section 156.05(5)(b) of the Code of Ordinances for the City of Madisonville in conflict with KRS 100.253, in view of OAG 73-47?
Can a landowner abandon his nonconforming use by the removal of one of three mobile homes for a period in excess of two years and then re-establish such use by adding a third mobile home to his property?
In light of OAG 73-47, KRS 100.253 and Section 156.05(5)(b) of the Code of Ordinances for the City of Madisonville, will a partial discontinuance of a nonconforming use for a period in excess of two years constitute a partial abandonment of said nonconforming use? "
KRS 100.253 covers nonconforming uses, but under its present terms does not deal with the subject of abandonment of such uses as it once did prior to the enactment of the present zoning act in 1966. The present statute is completely silent on the subject and simply permits the continued use of the non-conforming use. At the same time, however, it rather clearly implies that if the use is voluntarily discontinued it can be considered abandoned and cannot be resumed.
We initially call your attention to the case of
Paducah v. Johnson, Ky. 522 S.W.2d 442 (1975), where the court declared that an ordinance requiring the nonconforming use of junk yards to be discontinued within two years from the effective date of the ordinance, conflicted with the provisions of KRS 100.253(1), which clearly permits a nonconforming use to continue indefinitely. On the other hand, in the case of
Attorney General v. Johnson, 355 S.W.2d 305 (1962), KRS 100.355 (repealed) which contained similar language as that found in KRS 100.253(1) was involved in conjunction with an ordinance stating that when a nonconforming use is voluntarily discontinued, it is lost and cannot be resumed. The court in upholding the ordinance in general declared that when a nonconforming grocery store use had been abandoned for five years, it was lost. The court said and we quote:
"It is a general rule that the right to a nonconforming use continues only so long as the use continues to exist in fact and until its legal termination, which may be by non-use or discontinuance for a prescribed period, * * *. The original nature and purpose of a nonconforming use must remain unchanged, if it is to continue to exist as of right."
See also
Hollaway v. Monford, Ky. 474 S.W.2d 80 (1971).
It would thus appear that KRS 100.253(1) would not be violated by the enactment of a reasonable ordinance providing for the automatic abandonment of a nonconforming use after the lapse of a reasonable period of nonuse since the statute simply authorizes the property owner to continue his nonconforming use. This language clearly implies to us that if the use is discontinued it ceases to exist. OAG 73-47 is modified accordingly.
Thus, in response to your basic question, it would appear that the ordinance governing the discontinuance of a nonconforming use would be basically valid on its face. However, as to whether the trailer's removal and replacements constitute the abandonment of a nonconforming use is one that only the courts can determine. We will point out that this office has held that a trailer can be replaced by a new one without destroying the nonconforming use. See OAG 77-421, copy attached.