Because nonconforming uses are inconsistent with the objectives of uniform zoning, consistent with the property rights of those affected and with substantial justice they should be reduced to conformity as quickly as is compatible with justice. In that regard municipalities may impose limitations upon nonconforming uses. Such restrictions typically relate to the change of use; the enlargement or extension of the repair or replacement of nonconforming structures; and limits on the duration of nonconforming uses through abandonment or discontinuance.
Plaintiff city challenged the appeals court's reversal of defendant business owner's conviction for violating plaintiff's zoning ordinance. For many years, defendant had operated a restaurant in a residential zone as a preexisting non-conforming use under plaintiff's zoning ordinance. Without seeking plaintiff's approval, defendant began operating a discotheque on the premises. In a quasi-criminal proceeding, the trial court convicted defendant of unlawfully extending the non-conforming use without prior approval; however, the appeals court reversed defendant's conviction.
Can the nonconforming use of property continue even if it is not the same use when the zoning ordinance was issued?
A nonconforming use has been looked upon as "a use of land, buildings or premises that lawfully existed prior to the enactment of a zoning ordinance and which is maintained after the effective date of such ordinance even though it does not comply with the use restrictions applicable to the area in which it is situated." This statutory guarantee against compulsory termination, however, is not without limit. Because nonconforming uses are inconsistent with the objectives of uniform zoning, the courts have required that consistent with the property rights of those affected and with substantial justice, they should be reduced to conformity as quickly as is compatible with justice. In the instant case it is acknowledged by all parties that the former restaurant had constituted a proper preexisting nonconforming use. The issue then becomes whether the conversion from a restaurant to a discotheque represented a substantial change, and was thus improper. Fundamental to that inquiry is an appraisal of the basic character of the use, before and after the change.
The court held that the trial court erred in applying a quantitative rather than qualitative analysis in evaluating the change in the character of defendant's business. Defendant's conversion of his business from a family restaurant to a disco with a disc jockey and several bars represented a substantial, and, therefore, impermissible, change in use. The court reversed and remanded for an entry of conviction.