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Denial of Zoning Certificate Reversed

A Norfolk Circuit Court overturns a zoning administrator’s refusal to issue a zoning certificate to state petitioner’s use of his property complied with the zoning ordinance, to allow the owner to obtain a business license to operate a used auto sales business at the location; the administrator erred in holding the prior nonconforming use of the site for auto sales had been discontinued for more than two years and thus could not be renewed or reestablished.

The city insists a property is not being “used” for purposes of the nonconforming use determination unless it is being “lawfully used” – a requirement that does not appear in the zoning ordinance. The use of petitioner’s site as an auto sales operation, however, was lawful prior to and on the date of the relevant amendment to the zoning ordinance. The use did not become “unlawful” until J.D. Valley commenced operations with no business license in 2004.

Instead of looking to the actual uninterrupted use of the site, the zoning administrator looked to the period of “licensed” use or “lawful” use to conclude that a discontinuance had taken place. That was error. The joint stipulation establishes that the site was used for automobile sales with no interruption and therefore qualified as a nonconforming use under the zoning ordinance.

Because the board of zoning appeals applied an erroneous principle of law in its interpretation of the zoning ordinance, the court reverses the board’s decision.

In re: May 20, 2011, Decision of the Board of Zoning Appeals of the City of Norfolk (Hall) No. CL 11-4851, March 21, 2012; Norfolk Cir.Ct.; Adam D. Melita, Ass’t City Att’y; Stanley G. Barr Jr. for petitioner. VLW 012-8-043, 6 pp.

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