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HomeMy WebLinkAboutPLNZAD2021-01185 - 208 E 800 SJanuary 12, 2021 ADMINISTRATIVE DETERMINATION DECISION AND FINDINGS PLNZAD2021-01185 REQUEST: This is a request for a Determination of Nonconforming Use interpretation for a property located at 208 E 800 S (Tax ID#16-07-177-035-0000) regarding whether a use on the site is considered legal nonconforming and whether that use is could be considered abandoned by the City as the property has been vacant since January 31, 2020. The subject property is located in the CN (Commercial Neighborhood) zoning district with no overlays. DECISION: The Zoning Administrator finds that the drive-through at 208 E 800 S is considered a legal nonconforming use. The use is not currently considered abandoned and may continue to be used as a drive-through. To avoid a presumption of abandonment of the use by the City and continue the nonconforming use, the owner shall continue to seek a user to reuse the nonconforming use by actively marketing the property for a tenant or sale. FINDINGS: The subject property is currently zoned CN, which does allow for commercial uses but does not allow for drive-through facilities. The subject property is currently occupied by a commercial building. According to City records: • The property has had a drive-through use since at least 1978. • In 1927, the City’s Zoning Districts and Ordinance initially zoned the land as C- Commercial. • In 1978, the City zoned the land as B-3-Business which allowed for its first tenant, Utah First Credit Union and its utilization of the drive-through. • From 1963-1995, the property was zoned as BC-Business Commercial • In 1995, the property’s current CN (Commercial Neighborhood) zoning was established with the city-wide zoning update. • The property’s first primary tenant was Utah First Credit Union until approximately 2010. • The second primary tenant of the property was the Environmental Planning Group until 2020. The Utah First Credit Union evidently used the drive-through feature of the building as a key function of the business’ services until leaving the building around 2010. Although the second tenant of the building, Environmental Planning Group, did not use the drive -through feature of the building as a primary function of their business, the feature was used occasionally, but much less frequently than it was being used when the tenant was Utah First Credit Union. City Records indicate that between 1978-2020 the property received various Planning Division approvals and building permits for site improvements, however, these improvements are not tied to the drive-through feature of the property. Business license records also show the property has been licensed as a bank from 1978-2010. The property has been vacant since the previous tenant’s lease expired on January 31, 2021. The applicant has provided marketing documentation demonstrating the owners have been actively seeking a tenant before the previous tenant’s lease expired to re-use the structure for drive- through use. Section 21A.38.040 regulates nonconforming uses. Section 21A.38.040.E.1 and 2 state: Burden Of Owner To Establish Legality Of Nonconforming Use: The burden of establishing that any nonconforming use lawfully exists under the provisions of this title shall, in all cases, be the owner's burden and not the City's. Building permits, business licenses and similar documentation may be considered as evidence establishing the legality of use. Determination Of Nonconforming Status: The Zoning Administrator shall determine the nonconforming use status of properties based upon the evidence submitted and information available pursuant to the provisions of this chapter. The property has been licensed and used as a drive-through according to City records and is currently considered a legal nonconforming use. City Code states the following regarding when a nonconforming use is considered terminated or abandoned and the nonconforming use right has been lost: 21A38.040.F.1: Termination Of Nonconforming Use: A nonconforming use of land or of a structure that is abandoned shall not thereafter be reestablished or resumed. Any subsequent use or occupancy of the structure or site must conform with the regulations for the district in which it is located. a. Presumption Of Abandonment: Abandonment may be presumed to have occurred if: (1) A majority of the primary structure associated with the nonconforming use has been voluntarily demolished without prior written agreement with the municipality regarding an extension of the nonconforming use; (2) The use has been discontinued for a minimum of one year; or (3) The primary structure associated with the nonconforming use remains vacant for a period of one year. The City may presume a use to be abandoned if the above occurs. None of the above have yet occurred. The property owner can avoid or rebut a presumption of abandonment if the property owner continues to actively seek a re-use of the existing drive-through. This may be demonstrated with evidence of continuous active marketing of the property for lease or sale for re -use of the non-conforming drive-through. Other activities may be used to rebut a presumption of abandonment, such as actively seeking building permits for improvements to the building that are associated with the non-conforming use. If a new conforming use (one allowed in the CN zone) is established in the building that replaces the non-conforming use or a new development occurs on the property that replaces the nonconforming use, the existing nonconforming use would be considered voluntarily abandoned. If the property were rezoned to a zone that allows for drive-through uses, the existing nonconforming drive-through use would be considered “conforming” and could be continued indefinitely. APPEAL PROCESS: An applicant or any other person or entity adversely affected by a decision administering or interpreting this Title may appeal to the Appeals Hearing Officer. Notice of appeal shall be filed within ten (10) days of the administrative decision. The appeal shall be filed with the Planning Division and shall specify the decision appealed and the reasons the appellant claims the decision to be in error. Applications for appeals are located on the Planning Division website at http://www.slcgov.com/planning/planning-applications along with information about the applicable fee. Grant Amann Associate Planner CC: Nick Norris, Planning Director Applicable Recognized Organization – Central City Community Council Posted to Web File Attachments: A. Marketing material submitted by the applicant