Request By:
Honorable James T. Kelley
Attorney at Law
115 W. Poplar Street
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 26 in which you, as Chairman of the Elizabethtown Board of Adjustments, relate that an area of land lying outside of the city back in 1956, was laid out as a subdivision which contained a provision listing certain permitted uses, one of which declared that multi-family dwellings could be constructed. Sometime in 1970 this area was annexed to the city and zoned R-3 which limits the property to single family dwellings. In 1979 the area was purchased by an individual who made application to the board of adjustments to authorize a "nonconforming use" permit for the construction of multi-family housing. Under the circumstances, the board of adjustments seeks an opinion to whether or not sufficient steps have been taken by the owner of the land in question to create a "nonconforming use" of the property as multi-family dwellings.
Our response to your question would be in the negative KRS 100.253, permitting the continued existence of "nonconforming uses" of property, provides that the lawful use of a building or premise existing at the time of the adoption of any zoning regulation affecting it, may be continued although such use does not conform to the provisions of the zoning regulations, with certain exceptions not in issue here. You will note that the statute refers to a use of a premise that exists at the time of the adoption of zoning regulations, in this cast limiting the property to single family dwellings (R-3 zone). However, from the facts related, there is no indication that the land in question has been utilized for any purpose much less the construction of a multi-family dwelling. Thus, the owner has not entered upon the performance of a series of acts that would lead to the establishment of a nonconforming use and thus does not meet the requirements of KRS 100.253. See
Hofgesang v. McMakin, Ky., 457 S.W.2d 950 (1970). Also, referring to the case of
Durning v. Summerfield, 314 Ky. 318, 235 S.W.2d 761 (1951), we find the term "use" defined as follows:
"'Use," in this statute, means what is customarily or habitually done or the subject of a common practice. Under the evidence it cannot be said that the premises were usually or customarily used for carnival purposes. At the time 'of the adoption of the zoning regulation in 1943, the premises were being used for agricultural purposes.'
Butler v. Louisville & Jefferson County Board of Zoning Adjustment and Appeals, 311 Ky. 663, 224 S.W.2d 658, cited by appellants, permit a nonconforming use 'existing at the time * * * of * * * zoning' to be continued. The record fails to establish a nonconforming use of the land in question for carnival purposes."
See in addition McQuillin, Mun. Corps., Vol 8A, § 25.185.
As we have indicated, sufficient steps have not been taken by the owner of the land in question to establish a nonconforming use of the property within the meaning of KRS 100.253.