Judges: Robert A. Butterworth Attorney General
Filed Date: 9/25/1997
Status: Precedential
Modified Date: 7/5/2016
Mr. Richard H. Roth Lighthouse Point City Attorney 1500 East Atlantic Boulevard Pompano Beach, Florida 33060-6749
Dear Mr. Roth:
You ask the following question:
Does the removal of a portion of a nonconforming use of land by the county to install water lines constitute attrition, abandonment, or an act of God so as to prohibit the reinstallation of the nonconforming use?
In sum:
The removal of a portion of a nonconforming use of land by the county to install water lines does not constitute attrition, abandonment, or an act of God so as to prohibit the reinstallation of the nonconforming use.
According to your letter, the City of Lighthouse Point for many years allowed single-family residences to pave a portion of the swale area and part of their deeded property adjacent to their house so they could park additional cars at their convenience. Several years ago, the applicable ordinance was changed and this is no longer permitted. The paved parking areas on the sides of houses, however, were apparently grandfathered in as nonconforming uses of land under the city's zoning code.
You have advised this office that during the county's construction of new water lines, a portion of these paved areas had to be removed to lay pipes. The removal of part of the parking areas was not at the request of the property owner, but was required in order to lay the county water lines. While some local governments have adopted ordinances prescribing whether a nonconforming use may be repaired or restored when damaged or destroyed, it does not appear the City of Lighthouse Point has adopted such a provision.
The granting of permission to continue a nonconforming use is designed to avoid the imposition of hardship to the owner of property already devoted to a prescribed use.1 The courts have recognized that the termination of a grandfathered nonconforming use can constitute a compensable taking.2
Nonconforming uses, however, are generally not favored since they detract from the effectiveness of comprehensive zoning laws. It is expected that such nonconforming uses will generally be eliminated over time through abandonment, destruction, and obsolescence.3 While land use planning tolerates nonconforming uses because of the hardship that would otherwise be imposed, there is no absolute entitlement to reestablishment of a nonconforming use. Thus, when an owner's investment is extinguished by accidental destruction of the structure that had constituted the nonconforming use, the courts have upheld municipal ordinances imposing reasonable restrictions against reestablishing nonconforming uses after substantial destruction, based on some significant percent of value or volume.4
According to your letter, the city code provides that if a nonconforming use is discontinued for a continuous period of 90 days, any future use of the land shall be in conformity with the provisions of the chapter.5 However, you state that the county's replacement of water lines has not affected a nonconforming use for a continuous period of 90 days.
In Lewis v. City of Atlantic Beach,6 the First District Court of Appeal set forth the general rule that "nonconforming uses may be eliminated by attrition (amortization), abandonment, and acts of God as speedily as is consistent with proper safeguards and the rights of those persons affected." As discussed by the court, attrition or amortization contemplates the eventual removal of nonconforming uses by requiring the termination of such uses within or at the expiration of a specified period of time.7
Abandonment occurs when the owner intentionally and voluntarily relinquishes such nonconforming use of the property. Temporary cessation of a nonconforming use, however, does not necessarily constitute abandonment of a nonconforming use.8 Moreover, neither attrition nor abandonment occurs when a nonconforming use is interrupted or discontinued involuntarily by government action.9
In the instant inquiry, a portion of the nonconforming use was disrupted by the county's action in laying new water lines. Based upon the foregoing, I am, therefore, of the opinion that the removal of a portion of a nonconforming use by the county to install water lines does not constitute attrition, abandonment, or an act of God so as to prohibit the reinstallation of the nonconforming use.
Sincerely,
Robert A. Butterworth Attorney General
RAB/tgk
Walker v. State, Dept. of Transp. , 1979 Fla. App. LEXIS 14026 ( 1979 )
Lewis v. City of Atlantic Beach , 10 Fla. L. Weekly 893 ( 1985 )
3m Nat. Advertising Co. v. City of Tampa Code Enf. Bd. , 1991 Fla. App. LEXIS 10345 ( 1991 )
Fortunato v. City of Coral Gables , 1950 Fla. LEXIS 1001 ( 1950 )
City of Miami Beach v. State Ex Rel. Parkway Co. , 128 Fla. 118 ( 1937 )