What determines previous use? Not so simple

[TJacobs]

Re: What determines previous use? Not so simple

It wouldn't matter how good the jurisdiction's record-keeping is in this case. The preponderance of evidence on file shows only 2 units are legally authorized. It would be up to the owner to refute the jurisdiction with other evidence. Of course, that means a previous owner would have gone through the legal process to add the third unit...hence there would be some record of it.

 

[Alias]

Re: What determines previous use? Not so simple

My reading of the OP tells me the 3rd unit is not occupied and likely has not the minimum facilites required to make it a dwelling, ergo the "grandfathering" idea might not work.New owner has a leagal battle to fight w/zoning.

Funniest part of the OP to me was "...was told by the realtor...". Nuff said about reliability of that info!

I've had a few of the 'but my relator told me.........' myself and my reply is "caveat emptor, let the buyer beware." Then I sit down and go through the process for obtaining building permits and planning approval for the new use. I do go and check our records, including w&s charges to try to help determine facts.

Sue, records, what records? :roll:

 

[Mac]

Re: What determines previous use? Not so simple

"To be a legal non-conforming three unit dwelling all three units do not need to be continuously leased"

Lots of non-conforming uses can lose their status if the activity is suspended or stopped for a time. Once gone, they can be difficult to impossible to reestablish.

(local zoning ord:

§ 174-66. Discontinuance of use.

A. A nonconforming use which is discontinued for a total of 330 days within any twelve-month period shall not be reestablished, and any subsequent use shall conform to the use regulations of this chapter. )

 

[brudgers]

Re: What determines previous use? Not so simple

"To be a legal non-conforming three unit dwelling all three units do not need to be continuously leased"Lots of non-conforming uses can lose their status if the activity is suspended or stopped for a time. Once gone, they can be difficult to impossible to reestablish.

(local zoning ord:

§ 174-66. Discontinuance of use.

A. A nonconforming use which is discontinued for a total of 330 days within any twelve-month period shall not be reestablished, and any subsequent use shall conform to the use regulations of this chapter. )

The units remain dwellings even when unoccupied.

If you had a hotel with 100 units in an area that is now zoned for 75 units, they should not lose units merely because they failed to achieve 100% occupancy during a 300 day period.

Likewise a non-conforming apartment building should not lose units if it underwent a year long rehabilitation.

Loss of use should require abandonment, such as failure to maintain a license - which is why some jurisdictions require licenses for rental dwellings.

 

[kilitact]

Re: What determines previous use? Not so simple

Typically if the use changes they lose the non-conforming status. If you have a non-conforming house that you try to rent for a year, it's still the same use even if it sits empty for a year. The separation requirements might not be part of the code when this was buildt, if so no separation is required.

 

[SCBO1]

Re: What determines previous use? Not so simple

Had a guy walk in last month, said his papa died, left him a single family house that was coverted to an over and under duplex when papa owned it. His real estate agent (man who tells lies, and profits) said the use could not continue. Talked to the city attorney (man that knows stuff), said in his opinion: Change in ownership does not affect any grandfathered use if the use is continue! Take that, man that tells lies and profits! :shock:

 

[Heaven]

Re: What determines previous use? Not so simple

One needs to know what the zoning language is, Some places have "sunset" clauses where legally preexisting uses age out over time no matter what. Other places, the use needs to be simply "discontinued" for a period of time. Other places, the use needs to be "abandoned" for a period of time. "Abandonment" and "discontinued" do not mean under renovation for a year. "Abandonment" does not mean "advertised and maintained but still empty.

In any case, every indication is that this was not ever a three unit building, if there were a shred of evidence otherwise there would be at least something for the Zoning Board of Appeals to think about when the property owner comes in with an application for Administrative Appeal.

Make your best in good faith decision, if the owner disagrees then he has an avenue for relief through the ZBA. That is what they are there for.

 

[Mac]

Re: What determines previous use? Not so simple

After the USE is discontinued for 330 days, the USE may not be reestablished. No ambiguity there - no shoulda/woulda.

 

[texas transplant]

Re: What determines previous use? Not so simple

Specific zoning ordinances and case law from each state determines when a use is abandoned.

The last state I worked the courts considered the use continuous if the non-conforming apartment was being advertised, under renovation, and a host of other circumstances. The days that counted toward abandonment of the use didn't start getting counted until all these other things are over. The benefit of doubt went to the property owner.

Each city is probably going to be different, each state has different laws and case law.

Consult the man with a tie in your local jurisdiction.

 

[Jasper]

Re: What determines previous use? Not so simple

His real estate agent (man who tells lies, and profits)

I thought a real estate agent was "man with sign who open door".

The real estate agents I have met are honest. Some are more experienced and knowledgeable than others. The good ones make good money, but work crazy hours. The poor ones make less money. They all make a point of putting signs where people can see them, and opening lots of doors for people.

The "man with pencil who draw" story could easily be adapted to describe a year in the life of a "man with sign who open door". (Sometimes a real estate agent has to show hundreds of houses to a client before the client finds the right deal.)