A city has recently expressed a desire to disallow certain uses in a zoning district. One approach is to completely grandfather the existing use that is to become a nonconforming use until the use is no longer being maintained on the property. This approach is likely the most defensible from a municipal regulation perspective. Another approach is to set a reasonable time period after which the new nonconforming use will no longer be allowed. The time period must be set to allow a reasonable opportunity for the property owner to recoup some investment in the nonconforming use prior to discontinuing the use altogether. Although the second approach would certainly invite some argument about what that reasonable time period should be, I understand the decision will be considered by the Court's as legislative largely being left to the discretion of the governing body. Has anyone dealt with this type of issue and if so, do you have any examples of Ordinance language addressing this type of issue that you would be willing to share in this forum or by responding directly to my email. Thank you. Jeff H Bryant Director of Legal Services Associate General Counsel jbryant@omag.org<mailto:jbryant@omag.org> [OMAG Small Logo Smooth] 3650 S. Boulevard Edmond, Oklahoma 73013 Phone: 405-657-1419 Fax: 405-657-1401 www.omag.org<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.omag.org%2F&data=02%7C01%7Cksesock%40omag.org%7C7b0af7708d2145459d0008d5d005912d%7Cb13aadd514d84b918cf485be9d556ad7%7C1%7C0%7C636643644718063768&sdata=O5U4CEM0kJLxSbEQIcdB%2BtRnRqcj9gWhJquY26D8F1o%3D&reserved=0>

Here is an example that seems to meet the criteria of reasonable methods of handling phasing out of nonconforming uses. * Chapter 9. - Nonconformities SHARE LINK TO SECTION<https://library.municode.com/>PRINT SECTION<https://library.municode.com/>DOWNLOAD (DOCX) OF SECTIONS<https://library.municode.com/>EMAIL SECTION<https://library.municode.com/>COMPARE VERSIONS<https://library.municode.com/> * Sec. 901 - General SHARE LINK TO SECTION<https://library.municode.com/>PRINT SECTION<https://library.municode.com/>DOWNLOAD (DOCX) OF SECTIONS<https://library.municode.com/>EMAIL SECTION<https://library.municode.com/>COMPARE VERSIONS<https://library.municode.com/> A. Purpose and Scope of Regulations. 1. Within the districts established by this UDC or amendments that may later be adopted, there exist lots, structures, and uses of land and structures which were lawful before this UDC was passed or amended but that would be prohibited, regulated or restricted under the terms of this UDC or future amendment. 2. It is the intent of this section to permit these nonconformities to continue until they are removed, but not to encourage their survival. Such uses are declared by this section to be incompatible with permitted uses in the districts involved. 3. It is further the intent of this section that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district. A nonconforming use of a structure, a nonconforming use of land, or a nonconforming use of a structure and land shall not be extended or enlarged after adoption of this UDC. 4. Any use which was in violation of a provision of the zoning ordinances of the City of Ardmore in effect at the time of the adoption of this UDC, or amendments thereto, and which does not conform to the provisions of this UDC, and/or amendments thereto, shall be considered a violation of this UDC and shall not have any of the rights granted below. B. Authority to Continue. Nonconformities shall be allowed to continue in accordance with the regulations of this chapter. C. Determination of Nonconformity Status. The burden of establishing that a nonconformity lawfully exists is the owner's burden, not the City's. D. Repairs and Maintenance. Repairs and normal maintenance required to keep nonconforming uses, structures and lots in a safe condition are permitted, provided that no alterations may be made except those allowed by this chapter or required by law or ordinance. E. Change of Tenancy or Ownership. Changes of tenancy, ownership or management of an existing nonconformity are permitted, provided that no changes in the nature or character, extent or intensity of such nonconformity may occur except those allowed by this chapter. * Sec. 902 - Nonconforming Lots of Record SHARE LINK TO SECTION<https://library.municode.com/>PRINT SECTION<https://library.municode.com/>DOWNLOAD (DOCX) OF SECTIONS<https://library.municode.com/>EMAIL SECTION<https://library.municode.com/>COMPARE VERSIONS<https://library.municode.com/> In any district in which a legal lot (as defined in Chapter 11) exists of record on August 1, 1998, the effective date of adoption of this UDC that does not conform in size or area to the provisions of this UDC, buildings for the uses permitted in such district may be erected on such lot,; provided that such lot is in separate ownership and not of continuous frontage with other lots in the same ownership. (Ord. No. 2723, 8-19-02; Ord. No. 2782, 4-4-05) * Sec. 903 - Nonconforming Structures SHARE LINK TO SECTION<https://library.municode.com/>PRINT SECTION<https://library.municode.com/>DOWNLOAD (DOCX) OF SECTIONS<https://library.municode.com/>EMAIL SECTION<https://library.municode.com/>COMPARE VERSIONS<https://library.municode.com/> Where a lawful structure existed on August 1, 1998, the effective date of adoption of this UDC that could not be built under the terms of this UDC by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions: 1. No such structure may be enlarged or altered in a way which increases its nonconformity. 2. Should such structure be destroyed by any means to an extent of more than 50 per cent of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with the provisions of this UDC. 3. Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved. (Ord. No. 2723, 8-19-02) * Sec. 904 - Nonconforming Uses SHARE LINK TO SECTION<https://library.municode.com/>PRINT SECTION<https://library.municode.com/>DOWNLOAD (DOCX) OF SECTIONS<https://library.municode.com/>EMAIL SECTION<https://library.municode.com/>COMPARE VERSIONS<https://library.municode.com/> A. Nonconforming Use of Land. Where, on August 1, 1998, the effective date of adoption of this UDC, lawful uses of land exist that are no longer permissible under the terms of this UDC as enacted or amended, such uses may be continued so long as they remain otherwise lawful, subject to the following provisions: 1. No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of this UDC. 2. No such nonconforming use shall be enlarged or increased or extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this UDC. 3. If any such nonconforming use of land ceases for any reason for a period of more than 30 days, any subsequent use of such land shall conform to the regulations specified by this UDC for the district in which such land is located. B. Nonconforming Use of Structure. If a lawful use of a structure, or of structure and premises in combination, existed on August 1, 1998, the effective date of adoption of this UDC that would not be allowed in the district under the terms of this UDC, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions: 1. No existing structure devoted to a use not permitted by this UDC in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located. 2. Any nonconforming use may be extended throughout any parts of a building that were manifestly arranged or designed for such use at the time of adoption or amendment of this UDC, but no such use shall be extended to occupy any land outside such building. 3. Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use shall thereafter conform to the regulations for the district in which such structure is located, and the nonconforming use may not thereafter be resumed. 4. When a nonconforming use of a structure, or structure and premises in combination, is discontinued or abandoned for 6 consecutive months, the structure, or structure and premises in combination, shall not thereafter be used except in conformance with the regulations of the district in which it is located. 5. Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. 6. As an exception to the provisions in paragraph 1 above, repairs or maintenance will be permitted to existing single family detached dwellings in commercial or industrial districts. In addition, the reconstruction of existing single family detached dwellings not to exceed their original square footage will be permitted in said districts where existing single family dwellings have been destroyed by a natural disaster or by fire. C. Nonconforming Home Occupations. Any existing home occupation that does not conform to the regulations in Sec. 503<https://library.municode.com/ok/ardmore/codes/code_of_ordinances?nodeId=PTIICOOR_APXCUNDECO_CH5USRE_S503COACUS> shall be deemed a legal nonconforming use, subject to the following requirements: 1. The home occupation shall be allowed to continue so long as it is not enlarged or expanded in any fashion, or discontinued for 6 months in any calendar year. 2. The home occupation shall be allowed to continue so long as the owner obtains an annual home occupation permit. 3. Business occupations or professions conducted at the time of the effective date of this UDC in a residential structure or accessory building in a residential use area may be continued until such use of the structure is abandoned under the nonconforming use provisions of Sec. 904<https://library.municode.com/ok/ardmore/codes/code_of_ordinances?nodeId=PTIICOOR_APXCUNDECO_CH9NO_S904NOUS>, provided that this shall not be construed to approve the continuation of an activity constituting a common law nuisance or any activity prohibited by statutes, ordinances or restrictive covenants applicable to the area. (Ord. No. 2723, 8-19-02) * Sec. 905 - Changes in Nonconformity SHARE LINK TO SECTION<https://library.municode.com/>PRINT SECTION<https://library.municode.com/>DOWNLOAD (DOCX) OF SECTIONS<https://library.municode.com/>EMAIL SECTION<https://library.municode.com/>COMPARE VERSIONS<https://library.municode.com/> A nonconforming use of a structure, or of a structure and land in combination, shall not be changed unless changed to a use permitted in the district in which located; except that the Board of Adjustment may permit a change to a more restricted nonconforming use and such change shall be construed as an abandonment of the former permitted nonconforming use. * Sec. 906 - Nonconforming Parking Lots SHARE LINK TO SECTION<https://library.municode.com/>PRINT SECTION<https://library.municode.com/>DOWNLOAD (DOCX) OF SECTIONS<https://library.municode.com/>EMAIL SECTION<https://library.municode.com/>COMPARE VERSIONS<https://library.municode.com/> If a lawful parking lot existed prior to April 17, 1989, such a lot shall be considered a legal nonconforming parking lot and may be continued so long as it remains otherwise lawful, subject to the following provisions: 1. No existing use of the land or structure on the same property as the nonconforming parking lot shall be enlarged, increased or extended to occupy an area of the land or structure greater than 50 per cent of the original land or structure area without constructing a parking lot in conformance with the requirements specified in this UDC. 2. No building or structure shall be enlarged, erected, constructed or reconstructed with such an addition having a floor area greater than 50 per cent of the original floor area of all buildings and structures on the site, and no major repairs or renovations shall be made exceeding 50 per cent of the value of the structure located on the same property as the nonconforming parking lot without constructing a parking lot in conformance with the requirements specified in this UDC. (Ord. No. 2723, 8-19-02) * Sec. 907 - Nonconforming Signs SHARE LINK TO SECTION<https://library.municode.com/>PRINT SECTION<https://library.municode.com/>DOWNLOAD (DOCX) OF SECTIONS<https://library.municode.com/>EMAIL SECTION<https://library.municode.com/>COMPARE VERSIONS<https://library.municode.com/> A. Permanent Signs. Any permanent sign existing at the time of the adoption of this UDC and not conforming to its provisions shall be considered as a legal nonconforming sign, and such sign shall be permitted to remain, provided it is not: 1. Expanded or enlarged in sign area, height, or degree of nonconformity; 2. An abandoned sign that must be removed as required elsewhere in this UDC; 3. Reestablished after becoming an abandoned sign as required elsewhere in this UDC; 4. Reestablished after damage or destruction, by any means, exceeding 50 per cent of the estimated replacement value of a similar sign; 5. Moved in whole or in part to another location unless the sign is made to conform to all of the provisions of this UDC; or 6. A hazard to safety, health or welfare. B. Maintenance of Signs and Changing of Sign Message. 1. Any nonconforming aspects of a sign/sign structure shall be removed or modified to meet requirements of this ordinance when the name of an activity changes. C. Portable Signs. 1. All existing "permanent" portable signs shall be registered as to location with a City of Ardmore portable sign sticker. If the "permanent" portable sign is removed from the specific location on the property or destroyed beyond 50 per cent, it shall not be replaced or relocated on the same property. 2. All portable signs within the City of Ardmore are currently nonconforming. 3. Portable signs that are erected illegally are subject to immediate removal in accordance with Sec. 710.P. 4. Legally nonconforming on-premises portable signs that are registered with the Department of Development Services are subject to the following standards: a. All portions of the portable sign must be located a minimum of 0 feet from all property lines; except when a side or rear yard adjoins a residential district, the setback from the property line shall be 25 feet. b. A maximum of 1 portable sign per business. c. The electrical wiring system for all illuminated portable signs must comply with the electrical code as adopted by the City, and all electrical installations associated with the erection and installation of a sign must be performed by an electrical contractor as licensed by the City. d. The total area of a portable sign shall not exceed 50 square feet. e. Portable signs shall not be located within the required sight triangle of all driveway and street intersections as defined in Sec. 703<https://library.municode.com/ok/ardmore/codes/code_of_ordinances?nodeId=PTIICOOR_APXCUNDECO_CH7GEDEST_S703LABU>. f. Portable signs shall not be located within a parking area, including the associated driveways and aisles. g. All portable signs shall be structurally safe, maintained in good condition and be properly anchored to the ground as approved by the Building Official. (Ord. No. 2723, 8-19-02; Ord. No. 2782, 4-4-05) * Sec. 908 - Nonconformities Created by Public Action SHARE LINK TO SECTION<https://library.municode.com/>PRINT SECTION<https://library.municode.com/>DOWNLOAD (DOCX) OF SECTIONS<https://library.municode.com/>EMAIL SECTION<https://library.municode.com/>COMPARE VERSIONS<https://library.municode.com/> A. Lot Area and Setbacks. When lot area or setbacks are reduced as a result of a taking by a federal, state or local government for a public purpose, and the remaining area is at least 75 per cent of the minimum standard for the district in which it is located, then that lot shall be deemed to be in compliance with the minimum lot size and setback standards of this UDC. B. Off-Street Parking and Buffers. When off-street parking or buffers are reduced as a result of a taking by a federal, state or local government for a public purpose, the owner of such property shall be required to replace, to the maximum extent deemed practicable by the Planning Director, the reduced off-street parking or buffers. Such replacement shall occur no more than 90 days after construction activity that reduces the available off-street parking or buffers. C. Sites with Prior Nonconformities. Sites that are nonconforming at the time of a taking by a federal, state or local government for a public purpose shall meet the same standards as other nonconformities, and are not permitted to use the provisions in this Sec. 908<https://library.municode.com/ok/ardmore/codes/code_of_ordinances?nodeId=PTIICOOR_APXCUNDECO_CH9NO_S908NOCRPUAC>. D. Signs for Nonconforming Uses. A nonconforming use may have an on-site sign subject to the zoning district limitations, except that no new/additional freestanding sign shall be installed. (Ord. No. 2723, 8-19-02) CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message. s/ David A. Davis LAW OFFICE OF DAVID A. DAVIS 4312 N. Classen Blvd. OKLAHOMA CITY, OK 73118 405 840-6353 405 557-0777 (FAX) ddavislaw@live.com<mailto:ddavislaw@live.com> ________________________________ From: Jeff Bryant via Oama <oama@lists.imla.org> Sent: Thursday, August 19, 2021 4:57 PM To: oama@lists.imla.org <oama@lists.imla.org> Subject: [Oama] Timeline to grandfather a nonconforming use A city has recently expressed a desire to disallow certain uses in a zoning district. One approach is to completely grandfather the existing use that is to become a nonconforming use until the use is no longer being maintained on the property. This approach is likely the most defensible from a municipal regulation perspective. Another approach is to set a reasonable time period after which the new nonconforming use will no longer be allowed. The time period must be set to allow a reasonable opportunity for the property owner to recoup some investment in the nonconforming use prior to discontinuing the use altogether. Although the second approach would certainly invite some argument about what that reasonable time period should be, I understand the decision will be considered by the Court’s as legislative largely being left to the discretion of the governing body. Has anyone dealt with this type of issue and if so, do you have any examples of Ordinance language addressing this type of issue that you would be willing to share in this forum or by responding directly to my email. Thank you. Jeff H Bryant Director of Legal Services Associate General Counsel jbryant@omag.org<mailto:jbryant@omag.org> [OMAG Small Logo Smooth] 3650 S. Boulevard Edmond, Oklahoma 73013 Phone: 405-657-1419 Fax: 405-657-1401 www.omag.org<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.omag.org%2F&data=04%7C01%7C%7Ce3d97884fb594cbc85cb08d9635c5c4a%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637650070602629526%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=J4h3z8%2F1Iguq3b2aM%2FPjaLPAkf6PBEC8HiLnzFFfe%2F0%3D&reserved=0>