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HomeMy WebLinkAbout09-09-2004 Legal Opinion - Expansion/Renovation Nonconforming Structures City Of WS - Town CenterN BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. Attorneys at Law Usher L. Brown • Offices in Orlando, Kissimmee, Delia & Sabb-Nutcher° ism" P. Busk° Cocoa & Viera Joseph E. Sikh Suzanne b'A eW John U. Bledenham, Jr. Anthony A. Ga rgeneas° lies M. Fletcher John H. Ward • Amy J. Goddard Jdhw S. Weiss Katherine Laorre Erin J. O'Leary Board Cori fled Civil Trial Lawyer J. W. Taylor °Board Cer#W City. County & Looel Govern mnt Law Of Counsel September 9, 2004 Ronald McLemore, City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708 Re: Legal Opinion - Expansion/Renovation Nonconforming Structures City of Winter Springs - Town Center (Our File No.: 315-015) Dear Ron: This letter is in response to your request for guidance regarding how to legally handle nonconforming use and structure issues within the Town Center. Particularly, the City will be faced with the issue of whether a nonconforming use or structure located within the Town Center can be repaired, expanded or altered without bringing the use or structure into compliance with the Town Center Code. Recently, the issue has come up regarding the Taylor Rental Building located on S.R. 434. Background In the year 2000, the City formally established the Town Center by adopting a comprehensive plan amendment. The goals, policies, and objectives of the Town Center are incorporated in the Comprehensive Plan, Future Land Use Element. Consistent with the Comprehensive Plan, the City adopted the Town Center District Code on July 12, 2000. All land development within the Town Center District must comply with the Town Center Code, including requirements related to permitted uses, architectural guidelines, building and infrastructure elements, signage, and landscaping. These requirements are based upon neo-traditional urban standards and design and are unlike any other City Code requirements in substance or importance. In fact, the Town Center Code takes precedence over any other conflicting City Code provision. 225 East Robinson skeet, Suite ON • P.O. Box 2673.Orlando, FW106 32902-2e73 Orlando (407) 425.950fi Fax (407) 425.9611f3.10SWMM (321) 4024144 • Cocoa d Vies (8t M 426-M Webeft www. .nat • Emall: f nnQorlandolaw.net Ronald McLemore, City Manager September 9, 2004 Page 2 Although much of the Town Center District consisted of vacant land at the time the Town Center Code was adopted, numerous structures within the district, including the Taylor Rental building, existed prior to the adoption of the Town Center Code. As such, these structures do not comply, in whole or in part, with the Town Center Code. Therefore, these structures constitute nonconforming structures and over time some of these structures, especially commercial buildings located on highly visible right-of-ways like S. R. 434 and Tuskawilia Road, will pose significant challenges to creating a uniform and attractive neo-traditional town center. Analysis Nonconforming use and structure issues have posed significant and complex challenges for communities throughout the country since the inception of zoning codes. The primary challenge is determining a fair and equitable balance between the right of the property owner to continue the nonconforming use or structure and the right of the governing agency to bring the use and structure into compliance with new laws which are intended to improve the overall zoning and development scheme within a particular community. In the instant case, the City is faced with balancing the continued existence of non -conforming uses and structures within the Town Center versus the City's extraordinary and substantial public policy goal of establishing a uniquely identifiable town center from ground zero.' A nonconforming use is one which lawfully existed prior to the effective date of a zoning restriction, and which is allowed to continue to exist in nonconformity with the restriction. McQuillin, Municipal Corporations, § 25.180 (Vd Ed.). Northgate Homes, Inc. v. City of Dayton, 126 F. 3d 1095, 1099 (e Cir.1997). This right to continue a nonconforming structure or use arises from the protection offered by both federal and state constitutions from interference with vested rights without due process. McQuillin at § 25.180.20. In light of the foregoing, the City has recently adopted a nonconformities code (Ordinance 2003-36), which specifically provides for continuation of structures and uses which become nonconforming through the adoption of zoning and other regulations. §§ 9-561 et seq., Winter Springs City Code. However, the law and the City Code recognize that the right to continue a nonconformity is not unlimited. Courts have routinely found that existing and lawful nonconformities are contrary to public policy, and are protected only to avoid injustice. McQuillin at § 25.183. Further extensions or enlargements of such nonconformities are disfavored, as such structures or I A detailed review of the City's public records will clearly indicate the importance of this goal to the City including, but not limited to, broad community input and support, hiring prominent town center consultants, specialized training of, and human manpower expended by, city elected officials and employees, and substantial financial investment. Ronald McLemore, City Manager September 9, 2004 Page 3 uses are expected to gradually be eliminated through abandonment, destruction, obsolecence and amortization. For example, in Town of Redington Shores v. Innocenti, 455 So. 2d 642 (Fla. 2' DCA 1984), a single story residence was a nonconforming structure within a commercial tourist district. The court upheld the Town's code which prohibited the property owner from adding a second floor to the nonconforming structure because to do so would have been an expansion or enlargement of the nonconformity. In addition, the court in Bixler v. Pierson, 188 So. 2d 681 (Fla. a DCA 1966) found it was impermissible for a property owner to replace an existing mobile home with a new and larger mobile home, even where the use was unchanged, as it constituted an alteration extension and enlargement of a non -conforming structure. More recently, the 5"' District Court of Appeal upheld a county's decision prohibiting the expansion of a nonconforming alcoholic beverage establishment's sale of alcohol from serving beer and wine to full alcoholic beverages. JPM Investment Group, Inc. v. Brevard County, 818 So. 2d 595 (Fla. Vh DCA 2002). Structural renovations or replacements are likewise looked upon with disfavor as the same may significantly extend the life of the nonconformity, which is in opposition to the purpose and intent of the law of nonconformities. McQuillin at § 25.201.50; See also, 3M National Advertising Co. v. City of Tampa Code Enforcement Board, 587 So. 2d 640 (Fla. 2'' DCA 1991) (Billboard company was prohibited from adding a model airplane to a nonconforming billboard as the same structurally altered and extended the nonconformity). Notwithstanding the foregoing, the general rule is that a property owner may restore or repair a nonconforming structure. McQuillin at § 25.200. This rule is subject, however, to legislative limitations imposed by reasonable ordinances. Johnston v. Orange County, 342 So. 2d 1031 (Fla. 0 DCA 1977) (Florida Courts have never questioned the right of a municipality to impose reasonable restrictions on a nonconforming use). In the case of the City of Winter Springs, the City Commission has adopted legislative limitations on nonconforming uses and structures. See §§ 9-561 at seq., Winter Springs City Code. These limitations currently apply to nonconforming uses and structures within the Town Center.a For example, with some limited exception for single family dwellings and nonconforming uses or structures granted a special permit by the City Commission, the City Code generally provides: 1. A nonconforming use or structure shall not be enlarged, increased or moved. § 9-562, Winter Springs Code. It is beyond the scope of this letter to reiterate all the limitations set forth in §§ 9-561 at seq., Winter Springs City Code. Thus, a general summary of some of the more important and frequently encountered limitations are provided herein. Moreover, any determination on the status of a nonconforming use or structure must be analyzed on a case -by -case basis. Ronald McLemore, City Manager September 9, 2004 Page 4 2. A nonconforming structure may be altered to decrease its nonconformity. § 9- 562(b)(2), Winter Springs Code. 3. A nonconforming use shall cease if discontinued for more than 180 consecutive days, superseded by a permitted conforming use, or it is apparent from the owner's intent that the use has been abandoned. §§ 9-565, 9-562(a)(3),9-564(3), Winter Springs Code. 4. A nonconforming structure may not be repaired or reconstructed if damaged in excess of 60 percent of the assessed value of the structure at the time of damage. §§ 9- 562((b)(3), 9-564(4), Winter Springs Code. 5. A nonconforming structure may be repaired or reconstructed provided the repairs are minor or routine in nature or where damage has been caused and the cost does not exceed sixty (60) percent of the assessed value of the structure. See §§ 9- 562(b)(3); 9-566, Winter Springs City Code. I hope this letter is instructive to you and your staff. As these complicated issues are raised on a case -by -case basis, I will provide additional guidance and assistance as needed. V t ly yours, Anthony A. Garganese City Attorney cc: Mayor and City Commission John Baker Eloise Sahlstrom AAG/Img