01-25-1990 Public Hearing and Regular Meeting

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s • APPEAL OF THE ENFORCING OFFICER'S DECISION #A90-001 PAGE -3- Whether or not a non-conforming use has been abandoned is a question that shall be determined by the Board of Adjustment. The property owner or his representative seeking to maintain the existing non-conforming use shall have the burden of proving to the Board of Adjustment that the use has not been discontinued for a period of ninety (90) consecutive calendar days, and/or that the owner or his representative did not intend to abandon the non-conforming use during the period of cessation of use of the non-conforming use. Using the first paragraph of this section as a guide, the enforcement officer determined that the non-conforming use on the seventeen (17) acre portion of the applicant's property had been abandoned. Based on Fish's multi-year lease to Re-Furb-Co., it is clear that the use of construction/fabrication yard has been abandoned in excess of ninety (90) days. Belmont's appeal is based on section; specifically that "the ow the non-conforming use during the p the second paragraph of this er did not intend to abandon iod of cessation of use_... Belmont, as noted in their application, contends that Fish Engineering never intended to abandon the use of the seventeen (1?) acres as a construction and fabrication shop and yard. They claim, the lease to Re-Furb-Co., Inc., was an effort to maintain some degree of income from the property until such time as the economy (and therefore Fish's business) improved to a point that would justify reactivation of the facility. They also point out that at the time the Re-Furb-Co. lease was executed, the facility, as used by Fish, was a conforming use. Abandonment of a non-conforming use was therefore not even an issue to be considered at this time. Fish was not aware that zoning restrictions on their property would change in January 1987 (one year after the Re-Furb-Co. lease was executed). If the Board accepts the applicant's contention that Fish Engineering had no intention to abandon the property use, it would be proper to rule that the right of non-conforming use has not ceased and may continue. This decision would in no way contradict the enforcement officer. The officer's decision was properly based on paragraph one of the section. The use as a construction/fabrication yard was clearly discontinued for a period well in excess of ninety (90) days. Under paragraph 2 of this section, the authority to make interpretative decisions regarding abandonment of a use is reserved solely for the Board of Adjustment.