The status of nonconforming use law in Florida.

• Author: Rothenberg, Mark A.

For the past 30 years, Floridians enticed by the lure of new homes, gated communities, and other amenities fled the coasts in a race to the center of the state. (1) As available land begins to run out, and faced with the reality of poor planning, inadequate infrastructure, and booming commute times, Floridians have begun a rediscovery of previously developed coastal communities. (2) Many local governments have taken steps to plan for this new wave of redevelopment. These planning measures typically attempt to preserve a localized sense of identity while requiring that sufficient infrastructure is provided in tandem with redevelopment. (3) The implementation of such planning measures frequently has the effect of causing existing uses or structures to become "nonconforming." (4) Accordingly, an understanding of the status of Florida law on nonconforming uses and structures will become of critical import to property owners and developers as local governments plan for redevelopment.

Definition and Existing Methods of Elimination

By definition, a nonconforming use or structure is one in which the use or structure was legally permitted prior to a change in the law, and the change in law would no longer permit the re-establishment of such structure or use. (5) As the Fifth District Court of Appeal noted in Lewis v. City of Atlantic Beach, 467 So. 2d 751, 754 (Fla. 5th DCA 1985):

[t]he application of zoning regulations to restrict an existing use of property, resulting in substantial diminishing of its value, may constitute a "taking" by the governmental agency which requires the payment of compensation under well-established principles of constitutional law.... To avoid these consequences, zoning regulations generally "grandfather" the continuation of existing nonconforming uses on property subject to the zoning classification. By the same token therefore, it is reasonable to conclude that the termination of such grandfathered nonconforming uses may result in a "taking" for constitutional purposes unless the basis of such termination accords with applicable legal principles.

The operators and owners of such "grandfathered" or "nonconforming" uses or structures (collectively, "nonconforming uses") routinely come into conflict with local governments when they seek to grow out their businesses, enlarge their homes, or face unexpected difficulty in obtaining insurance or financing. (6)

Florida courts generally recognize that nonconforming uses can be eliminated in four ways, through attrition, destruction, abandonment, and/or obsolescence. (7) Attrition is the most direct method for eliminating a nonconforming use. Typically, a local government sets forth a specific time frame by which a nonconforming use must be terminated. (8) The legal theory underpinning attrition (also referred to as amortization) (9) is that the local government has placed the property owner on notice, and has provided sufficient time for the property owner to realize a return on his or her investment so as to avoid a deprivation of due process rights. (10) Attrition can be problematic in that it is often difficult to determine the exact length of time necessary for a property owner to sufficiently realize the benefits of an investment.

Amortization of Nonconforming Uses

The seminal case in Florida standing for the proposition that a local government can amortize a nonconforming use is the case of Standard Oil Co. v. City of Tallahassee, 183 F. 2d 410 (5th Cir. 1950). In Standard Oil, the Fifth Circuit upheld a Tallahassee ordinance that required the discontinuance of nonconforming gas stations within six months. (11) The Fifth Circuit reasoned that local governments may regulate to protect the welfare of citizens and that it was reasonable to require discontinuance of gas stations that were in close proximity to the state capitol, a school, and other residential uses. (12)

Subsequent decisions have refined the notion that a local government can cause the gradual discontinuance of a use. In Lamar Advertising Associates of East Florida, Ltd. v. City of Daytona Beach, 450 So. 2d 1145, 1150 (Fla. 5th DCA 1984), the Fifth District Court of Appeal upheld a Daytona Beach ordinance that amortized nonconforming billboards within 10 years. The Fifth District held that amortization provisions must provide a reasonable opportunity for the property owner to realize a return on his or her investment (23) However, the use of the reasonable standard requires a case-by-case analysis of the particular use in question in relation to the local government's interest in eliminating the use. (14)

Reestablishment After Destruction

The timing involved in eliminating a nonconforming use through amortization can be lengthy. Accordingly, many local governments place additional restrictions against the reestablishment of the nonconforming use in the event of destruction. Some local governments will not permit reconstruction or reestablishment of a nonconforming use if over 50 percent of the structure has been destroyed or if the cost of replacing the nonconforming structure would exceed 50 percent of the value of the structure prior to destruction (the "50-percent rule"). (15) Because instances of destruction are rare, conflicts over these forms of restrictions generally manifest themselves when the owner or operator of a nonconforming use applies for refinancing or attempts to sell the property (16). Because the 50-percent rule can impact desirable and economically viable businesses, it may not be appropriate for local governments to apply it rigidly.

Miami-Dade County's experience in discouraging westward development illustrates the types of disputes that may occur over rigid application of the 50-percent rule. The Miami-Dade County Commission in concert with local businesses and area residents created an overlay zoning district for the east Kendall area, a suburb located approximately 15 miles southwest of the city of Miami. (17) The idea behind this Downtown Kendall plan was to create a viable mixed use development in east Kendall which would have the effect (in part) of discouraging further westward expansion. (18) What made the county's endeavor unusual was that east Kendall was already an economically vibrant area consisting of an enormously successful shopping mall and other established commercial and residential uses. (19) The Downtown Kendall plan called for a series of changes to the orientation of buildings and changes to the road networks, including the narrowing of roadways in order to accommodate off-street parking. (20) In order to effectuate these changes, the Downtown Kendall plan implemented the 50-percent rule. (21)

Problems arose just after adoption of the Downtown Kendall plan when property owners realized that application of the 50-percent rule would hamper their ability to obtain insurance, financing for new improvements, and permitting for already planned renovations. (22) Several property owners including the owner of the shopping mall filed suit challenging the county's adoption of the plan as a taking under the Bert J. Harris, Jr., Private Property Rights Protection Act. (23) Over the course of the next six months, the claimants, along with Miami-Dade County and area residents, negotiated a comprehensive settlement to the dispute. (24) The county agreed not to apply the 50-percent rule if post-destruction building permits were obtained within one year. After the one-year period, the property owner would be required to rebuild in accordance with the Code. (25) Whether Miami-Dade County's approach should be followed by other local governments is a question of local policy. However, providing for the reestablishment of a nonconforming use after destruction within a set time period, or providing an alternative process by which certain nonconforming uses can be legalized after public hearing, (26) may be an advantageous way of regulating existing economically viable or desirable uses that do not suffer from the type of blight encountered in other areas.

Discontinuance Abandonment

Another type of restriction governing nonconforming uses prevents the reestablishment of a nonconforming use when the use itself has been discontinued or abandoned. (27) Generally, local governments provide that a nonconforming use may not be reestablished if the use has been dormant for a set period of time. (28) A majority of courts outside of the state and at least one lower court in Florida have held that the burden of proof to establish a nonconforming use falls on the property owner. (29) Once the nonconforming use has been established, the burden shifts to the local government to prove that the nonconforming use has been discontinued or abandoned. (30)

In application to discontinuance regulations, Florida law is unclear as to whether the owner's intent to abandon the use must be shown. (31) The Florida Supreme Court has issued two seemingly contradictory opinions on the subject. In the case of City of Miami Beach v. State ex rel. Parkway Co., 174 So. 443 (Fla. 1937), the Florida Supreme Court held...