12-12-1994 Council Packet - Laserfiche WebLink

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r f * i the elements, or natural disaster.* Second, the use may be eliminated by requiring lawfully pre-existing nonconforming uses to immediately come into compliance with the new regulations. Whether that requirement results in a "taking" will depend on the particular circumstances. Third, nonconforming uses may be eliminated over a period of time through amortization. This mechanism requires a nonconforming use to terminate after a prescribed period of time elapses. The prescribed period of time under such a mechanism must be sufficient to allow the property owner to recoup his or her investment in the nonconforming use. As mentioned above, the City may force a particular property owner with a preexisting lawful use of his or her property to comply with the new regulations. The question then becomes whether that property owner can come into compliance and still be able to use the property in the way it was being used prior to the City’s adoption of the amendments. For instance, an existing marina may have so little remaining open space that it is impoMible to fit the required number of parking spaces on the open space on the property. Requiring strict compliance with the requirements of the new provisions of the code would make the marina ineligible for a conditional use permit, thereby forcing the property owner out of business and probably triggering a "taking" claim. Conversely, an existing marina may have sufficient space for the parking stalls required by the new regulations. Under such circumstances, the marina would be able to comply with the new regulations and obtain a conditional use permit An argument that the property had been “taken" would be considerably less persuasive under such circumstances. Because the consequences of bringing preexisting nonconforming marina uses into compliance are so dependent on the circumstances of the particular marina, we recommend an approach that reserves for the City the flexibility to deal with these nonconforming uses on a case-by-case basis. The simplest way for the City to enhance its nexibility is to aUow variances to the conditional use permit scheme created by the zoning code aniendments. By allowing variances to the conditional use permit requirements in cases where imposition of those requirements would visit a particularly harsh hardship upon the applicant, the City can avoid "taking" the property. In each case, the City can decide which of the three approaches outlined above is the most effective way to ultimately eliminate nonconforming uses. This will allow the City to aggressively enforce the zoning amendments in circumstances where little, if any, hardship will be suffered while also avoiding unnecessary takings claims by granting variances for those marinas that need them to stay in business. •As you know. Orono’s code has provis ; relating to the circumstances under which a property owner may and continue a onconforraing use after destruction by fire, the elements, or natural disaster. 2l9/220iU137/22;94