Agenda Packet Cc - regular meeting 6/27/1988

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the lawful use or o.;cupation of land or premises existing at the time of the adoption of an cfficial control hereunder may be c:ontinu except as regulated, terminated or acquired by the board a. L�rovided in Subdivisions 2 or 3, although such use or occupation does not conform to the provisions thereof, but if such non -conformity or occupancy is discontinued for period of more than one year, or any non -conforming building or structure is destroyed by fire or other peril to the extent of 50% of its market value, any _ubsequent use or occupancy of the land or premises shall be a conforming use or occupancy. (Remainder of statute attached hereto.) Gection 10.09, Subdivision 10, of the City Code of Orono regarding Conditional Use Permits for Non -Conforming Uses, states: "All non -conforming uses actually and legally existing on December 1, 1974, shall be issued a Conditional Use Permit upon application therefore not later than January 1, 1976. Such Conditional Use Permit shall allow the continuation of the non- conforming use tc the same extent and degree as then existing on December 1, 1974. Such Permit shall be granted without application fee and the council shall be limited to such permits to the full and accurate statements of the conditions pertaining to the existing uses. Such permits shall not be subject to periodic review" The key argument to this Subdivision rests on whether or not Ed received notice that he needed to apply for the Conditional Use Permit. There is a strong due process argument should it be found that Ed received no such notice; the arguirpnt being, had he known that such a Conditional Use Permit was required tQ be issued, he would have applied for it. On June 9, 1987 the U.S. Supreme Court decided the case of First English Evanqelical Lutheran Church of Glendale, v. County of Los Angeles, California, 482 US , 96 1, Ed 2d 250, 107 S Ct The Court s deci was essential y that regulation depriving an owner of all se of propert- was held to entitle tine owner to compensation the period bef)re determination that the regulation effected a "taking" under the Fifth Amendment. In that case, the Court stated that the gr.neral rule at least is, that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking." Id., at 265. The Court further stated that "there is no dispute about the proposition that a regulation which goes "too far" must be deemed a taking. When that happenes, the gov, rnment has a choice: it may abandon the regulation or it may continue i;~d compensate those whose property it takes." Id., at 272. An argument based on First Erll i' h ►.- gat Sectiur. 10.09, Subdivision 10, of the City C' of !. �rding Conditional Use Permits for non -conforming u._ sti".utes a taking since Ed was entitled to a Conditional U5� eermit but was not iotified that he could apply for one, nor that the razing of the existing house would result in his waiver of the right to -4-