Posted by: Patricia Salkin | December 3, 2014

MO Appeals Court Reverses and Remands Board’s Denial of Variance Finding Owners of Mobile Park May be Entitled to Nonconforming Use Status

The Hecks own a tract of land on which they have operated a mobile home park since 1983. Within the mobile home park is a mobile home pad positioned 14 feet 10 inches from the pad directly to its south and 14 feet 8 inches from the pad to its north. Two years after previous renters of the pad moved out, the Hecks sought to install a new mobile home of the same size on the vacant Pad. The City informed the Hecks that the new mobile home could not be placed upon the Pad unless they first obtained a variance from City’s pad spacing ordinance, which requires twenty feet of space between each mobile home. The applicable ordinance adopted in 1996 provides:

“No manufactured home shall be placed in any manufactured home park existing on the effective date of this Chapter as a replacement to any existing manufactured home unless said manufactured home is placed at least twenty (20) feet from any other manufactured home or any other structure.”

The Hecks requested an area variance from the twenty foot spacing requirement. The zoning officer testified before the zoning board of appeals that a strict application of the spacing requirement would oblige the Hecks to restructure the layout of the mobile home park, and that certain lots would not be usable until the new configuration was completed. The zoning official also testified that there is no common ground at Pacific Manor, so the space between mobile homes is the only area for green space. The board of appeals denied the request for a variance and the Hecks appealed to the Circuit Court which also denied their request leading to an appeal to the present appeal.

The appeals court reversed the zoning board’s decision stating, “Zoning ordinances must permit continuation of nonconforming uses in existence at the time of enactment to avoid violation of constitutional provisions preventing the taking of private property without compensation. At the same time, our Supreme Court has recognized that the spirit of zoning ordinances always has been and still is to diminish and decrease nonconforming uses. Accordingly, Missouri courts have allowed municipalities to regulate and limit nonconforming uses by various means such as prohibiting the resumption of a nonconforming use after its abandonment or discontinuance, prohibiting the rebuilding or alteration of nonconforming structures or structures occupied for nonconforming uses, and prohibiting or rigidly restricting a change from one nonconforming use to another.”

The matter was remanded because the Court found that the zoning board did not analyze or even consider the issue of whether the Hecks have the right to continue their nonconforming use, or whether the Hecks lost their legal property right to continue the nonconforming use due to their action or inaction.  The Court said, “We find no discussion in the record of whether the BZA considered the Hecks’ use of Pacific Manor as a whole or on a “per pad” basis, nor any discussion or analysis of any alteration or abandonment of the Heck’s use of Pacific Manor after 1996 that would potentially allow City to diminish or eliminate Hecks’ nonconforming use.”

Heck v City of Pacific, 2014 WL 5462389 (MO. App. 10/28/2014)

The opinion can be accessed at: http://caselaw.findlaw.com/mo-court-of-appeals/1681956.html


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