TO: Honorable Mayor & Members of the North Port Commission
FROM: Peter D. Lear, CPA, CGMA, City Manager
TITLE: Legal non-conforming uses in Commercial Districts and Activity Centers
Recommended Action
Direction for the city manager to bring the Commission an Ordinance amending the ULDC to allow for property owners with legal non-conforming uses to expand their business on their property within Commercial Districts and Activity Centers.
Background Information
The City’s ULDC defines “NON-CONFORMING USE” as “A lawful use of land that does not comply with the use regulations for its zoning district but which complied with applicable regulations at the time the use was established.”
On June 14, 2010 the City Commission adopted Ordinance 2010-24 amending the ULDC in its entirety which changed the permitted uses of property within certain zoning districts and as result certain business types, already operating prior to the new code, were deemed to be non-conforming.
Chapter 53 Part II ARTICLE XXI (attached) regulates uses and structures of Nonconformity. While this chapter puts forth it is the intent to permit these nonconformities to continue, it also says they shall not be enlarged upon, expanded, intensified or extended.
One of the greatest obstacles to economic development is regulatory uncertainty. Entities who choose to invest in property in North Port to start their business rely upon the rules currently in place. Potentially they may need to expand their footprint as their business grows. As our code currently reads, at any time the city can change the rules and thereby prohibit certain types of businesses but in doing so that would prohibit the growth and success of those already having invested in the community because they would become legal nonconforming uses.
I have included memos from staff in response to my inquiries about what modifications could be made to the ULDC that would allow for nonconforming uses in Commercial Districts to maximize their property’s potential. While I realize each state is different, in Pennsylvania appellate courts have adopted a “doctrine of natural expansion” with respect to a property owner’s right to expand a nonconforming use on his or her own property. Understanding the underlying specific zoning ordinance is key, in Peirce Appeal, 119 A.2d 506, 509 (Pa. 1956) <https://casetext.com/case/peirce-appeal>, I found an interesting statement which is an example of the allowance I believe could and should be made within our code:
"a non-conforming use cannot be limited by a zoning ordinance to the precise magnitude thereof which existed at the date of the ordinance; it may be increased in extent by natural expansion and growth of trade, neither is it essential that its exercise at the time the ordinance was enacted should have utilized the entire tract upon which the business was being conducted”
To help strengthen our foundation for economic development opportunities, I suggest amending the ULDC to allow for property owners with legal non-conforming uses to expand their business on their property within Commercial Districts and Activity Centers (attachment 5 is an example). This is something that could have moved forward several years ago but got stalled with the ULDC rewrite project. I believe this type of amendment can be addressed without further delay.
Strategic Plan
N/A
Financial Impact
N/A
Procurement
N/A
Attachments:
1. Memo - Re - Nonconforming Uses
2. Memo - Re - Expansion of Nonconforming
3. Florida Bar Journal - The Status of Nonconforming Use Law in Florida ...
4. CURRENT ULDC ARTICLE_XXI.___NONCONFORMITY
5. Example
6. <https://casetext.com/case/peirce-appeal>
Prepared by: Pete Lear for Vice Mayor Yates
Department Director: Pete Lear