A small restaurant on the edge of town has been in operation for many years.  Rick’s Cafe Carolinian was built in the 1940’s by Vic and Ilsa Laszlo at a time when the surrounding land was only woods and fields.  Residential subdivisions gradually grew up around their business.  When the town adopted zoning in the 1970s, this entire area was zoned for residential use.

The café is now owned by Vic and Ilsa’s grandson Sam.  While the business has been stable over the years, Sam believes it needs to be substantially modernized to remain viable.  He would like to do the following.  First, he would like to build a modest addition to the side of the building to expand the café’s small bar area.  This would allow Sam to add the piano bar of his dreams.  Second, he would like to convert a large unused back room into extra seating space for the café.  This room has only been used for storage for decades.  Some say that Sam’s grandparents used this back room for an illicit gaming operation in the café’s early days, but that is another story.  Now, with some modest renovations, it could add 30% more seating space, helping to pay off the loans he needs to take out for his renovations.  Finally, he would like to completely replace the building’s wiring, plumbing, and heating/air conditioning systems, and while he is at it, replace all of his kitchen equipment with modern appliances.  He knows this will cost a good deal, but he wants to make the building comfortable, more functional, and bring it up to modern code standards.

Sam ran these ideas by some of his regular Friday evening bar customers as several of them were builders and contractors knowledgeable about such things.  One of the regulars happened to be Hank Strasser, a retired builder who is now the town zoning officer.  Hank agreed that Sam’s plans would be a great improvement for the café, but immediately saw a red flag.  The building housing Rick’s is structurally sound and meets all of the town standards regarding setbacks and the like.  But the cafe is not allowed in this zoning district since the land is zoned for residential rather than commercial uses.  Hank told Sam that he could always seek a rezoning, but that would be a long shot in this situation.  The neighbors had vigorously opposed several prior proposals to rezone parcels for commercial use and the town’s new land use plan calls for the entire area to stay predominately low density residential.  Hank explained that since Rick’s was a nonconforming use, the ordinance prohibits enlargement or expansion.  “What, pray tell,” says Sam, “does that mean for my plans to improve the café?”

The answers are not as certain as one might think, especially if the town ordinance only has the typical brief provisions regulating nonconformities.  There are important policy implications to consider when framing limits on nonconformities, balancing the interests of the landowner, the neighbors, and the community.  A local government should carefully consider these implications and make clear, explicit policy choices when the restrictions are adopted. Read more »