Request By:
A. V. Conway, II, Esq.
Main Street
P.O. Box 66
Beaver Dam, Kentucky 42320
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter requesting an interpretation of a zoning ordinance concerning nonconforming uses. The ordinance in question is almost identical to KRS 100.253, which provides as follows:
"(1) The lawful use of a building or premises, existing at the time of the adoption of any zoning regulations affecting it may be continuted, although such use does not conform to the provisions of such regulations, except as otherwise provided herein.
(2) The board of adjustments shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted. Nor shall the board permit a change from one nonconforming use to another unless the new nonconforming use is in the same or a more restrictive classification."
Your specific problem concerns the continuing use of lots within the zoned area for placement of mobile homes. Mobile homes had been placed on several lots prior to the enactment of the zoning ordinance. Several months ago mobile homes were removed from the lots and a property owner is now attempting to put another mobile home on the lot. Previously the mobile home was owned by the property owner or his relatives and rent was charged for the use of the lot for only a portion of the time. The property owner now intends to place a mobile home owned by a third party on the lot and charge for the use of the lot. The mobile home to be placed on the lot is considerably larger than the mobile home formerly on the lot although the lot is of sufficient size to accomodate the new mobile home.
You ask whether, under terms of the local ordinance and KRS 100.253, the nonconforming use has been discontinued or abandoned or whether there has been a sufficient change in the use of the land to constitute a violation of the zoning ordinance and state statute.
In McQuillin Mun. Corp. (3rd Ed.), Vol. 8A, § 25.192, the author states that abandonment of a nonconforming use ordinarily depends upon a concurrence of two factors: an intent to abandon and an overt act, or failure to act, which carries the implication that the owner does not claim or retain any interest in the right to the nonconforming use. The lapse of time is not an essential element of abandonment of a nonconforming use. Furthermore, McQuillin, supra, § 25.191, states that a lessee has the right to use premises for a nonconforming use to the extent of the prior use by the lessor or a former tenant.
In connection with nonuse or discontinuance, see McQuillan Mun. Corp. (3rd Ed.), Volume 8A, § 25.193, where the following appears:
"Discontinuance has been deemed equivalent to abandonment within the meaning of a zoning ordinance, and hence it involves the element of intention. But the length of discontinuance of a use is merely evidence of the intent to abandon the use and not a positive indication of abandonment, unless it be long continued and unexplained, or unless it is by ordinance made conclusive evidence of abandonment. . . ."
The concepts of abandonment and discontinuance are also considered and discussed in Attorney General v. Johnson, Ky., 355 S.W.2d 305 (1962); City of Bowling Green v. Miller, Ky., 335 S.W.2d 893 (1960) and Smith v. Howard, Ky., 407 S.W.2d 139 (1966).
As to what may legally be done in connection with mobile homes under the nonconforming use provisions of KRS 100.253, this office has previously stated that where a mobile home had been located on property prior to the enactment of an ordinance prohibiting same, the owner could legally replace the old mobile home with a new one without violating the statute. The statute basically relates to the use of property and prohibits an expansion of or change in such use. The fact that the new trailer is slightly larger in size than the old trailer would not violate the statute where its use remains unchanged. Furthermore, ownership of the mobile home would not appear to be material and where the property was used for maintaining a residential mobile home prior to the zoning ordinance, such use can continue after the enactment of the zoning ordinance. See OAG's 73-856 and 70-718, copies enclosed.
The board of adjustments is responsible for not permitting the enlargement or extension of a nonconforming use beyond the scope of its operation at the time the regulation which makes its use nonconforming was adopted. This office does not intend to perform the board's function in a particular situation and probably does not have as much of the pertinent evidence before it as the board will have. Our opinion, generally, is that where property was used for maintaining a residential mobile home prior to the zoning ordinance, such use of the property can continue after the passage of the zoning ordinance. An older mobile home could be replaced with a newer, slightly larger one where its use remains unchanged. Ownership of the mobile home is not a material factor.