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Home My WebLink AboutAP200900008 Staff Report 2009-10-30STAFF PERSONS: Robert Heide / Amelia McCulley BZA HEARING: November 10, 2009 STAFF REPORT— AP2009 008 of Notice of Violation APPELLANT: Mahmood Pashazadeh (Property Owner: T.E. Wood) In accordance with Albemarle County Code § 18 -34.3, Mr. Mahmood Pashazadeh (the Appellant) has appealed the Zoning Administrator's determination of July 24, 2009. Description of Property: Tax Map 046, Parcel 28A1 is a 2.01 -acre lot located at 2891 Seminole Trail. The property is zoned R1 Residential (R1), Airport Impact Area Overlay District (AIA), and Entrance Corridor Overlay District (EC). (See Attachment 1) A building consisting of 1,053 square feet was built on the property in 1950. Background of Appeal: The appellant, Mr. Pashazadeh, leases from Mr. T. E. Wood and currently operates an oriental rug store on this property. The property was previously occupied for many years by several different restaurants as a nonconforming use. Previous restaurants were called Northside Restaurant, Rivanna Grill and the Acme Smokehouse and BBQ Co. Based on County Business License records, the Acme Smokehouse and BBQ Co closed as of April 30, 2007. A catering business also attempted to locate here but did not receive all necessary approvals. A zoning complaint was made on July 2, 2009 about the dumping of construction debris related to the remodeling of the building for a new retail use. The debris was cleaned up and is not the subject of this appeal. On July 2nd, the Building Official sent a letter regarding work done on the building (alteration and remodeling) without a building permit. This issue is also not the subject of this appeal. The new retail use of the property, rug sales and limited service, was identified in our zoning investigation. The appellant erected signs ( "Pasha" and "Rug Store Now Open ") and displayed rugs outside the building. Because this use is not permitted in the R1, Residential zoning district (Attachment 3) and the owner / appellant have not proven that it is permitted as an ongoing legal nonconforming use of the property, we sent a notice of zoning violation. Notice of Violation (NOV) ZV102009 -140 was sent on July 24, 2009. The Appellant filed his appeal of this NOV on August 24, 2009. Approximately one week prior to the NOV (July 17th) Stewart Wright, County Permit Planner, sent Mr. Pashazadeh a letter denying his sign permit application for the rug store because the use is not permitted. Determination: The Zoning Administrator determined that the new retail business, rugs sales and limited service, is not a permitted use. The Notice of Violation (dated July 24, 2009) cites Section 13.2 of the Zoning Ordinance which lists the "Permitted Uses" in the R1 Zoning District. In addition, the letter states that this is not a legal nonconforming use (See the NOV in Attachment 2). Grounds for Zoning Administrator's Decision: An onsite inspection found that the prior nonconforming restaurant use was discontinued and a new and different retail use had commenced. The appellant began this use (opened the business) without any County approvals. This use, rug sales with limited service, is a retail use. The R1 Residential Zoning District does not allow retail use by -right or by special use permit (See Attachment 3). Appellant's Justification For Appeal: The Appellant does not address any of the facts in the determination nor does he dispute that he is running a business at this location. He states in his appeal that the prior restaurant use was more dangerous to customers and the public due to the availability of alcohol. He argues that for safety reasons, the rug store should be permitted. Specifically, his appeal states: A restaurant has normally 40 to 60 customers per day. They eat and drink and probably get drunk. This is dangerous for their own lives and others as well. A rug store hardly has 40 customers per month and they hardly would be drunk when they want to buy an oriental rug, wool, hand knotted which is expensive! So stopping by a rug store in that specific place most likely is less dangerous than a restaurant which normally has more customers. Staff Response: The appellant's argument that his business use is safer due to the decreased traffic and absence of alcohol sales, is not a relevant consideration for a zoning use determination. If the appellant had contacted County staff prior to signing a lease, remodeling the building and opening his business, we would have advised him that his proposed use is not permitted at this location. We could have provided him with information about where his business use is permitted within the County. The appellant's argument implies that lawful nonconforming commercial use of the property remains. A landowner has a vested right to continue a nonconforming use if he or she establishes the validity of the nonconforming use. Dick Kelly Enterprises, Virginia Partnership, No. 11 v. City of Norfolk, 243 Va. 373 (1992). In this case, neither the appellant nor the property owner has proven the validity of a nonconforming use. The intent statement within Zoning Ordinance Section 6.0 Nonconformities is as follows: The purpose of this section 6 is to regulate nonconforming uses, structures and lots in a manner consistent with sound planning and zoning principles, except for nonconforming signs regulated by section 4.15, and nonconforming uses and structures within the flood 2 hazard overlay district regulated by section 30.3. Nonconforming uses, structures and lots are declared to be incompatible with the zoning districts in which they are located and, therefore, are authorized to continue only under the circumstances provided herein until they are discontinued, removed, changed or action is taken to conform to the zoning regulations applicable to the district in which the use, structure or lot is located. Based on County records, the prior nonconforming restaurant ceased operation about 2 '/2 years ago (April 30, 2007). Because a new nonconforming business was not lawfully established (with the necessary permits and approvals) within 2 years, the nonconforming use of the property has been abandoned. Albemarle County Zoning Ordinance Section 6.2 Nonconforming Uses states: G. Discontinuance of a nonconforming use. A nonconforming use and all uses accessory thereto shall be discontinued, and any use of the structure or lot shall thereafter comply with the regulations set forth in this chapter applicable to the district in which the use is located, if the nonconforming use is discontinued for more than two (2) years, regardless of whether the use was continuous or seasonal. The two (2) -year period shall not be tolled during any period during which a structure in which the nonconforming use is conducted is extended, enlarged, repaired, reconstructed or altered as provided in this section 6.2. The continuation of a use that is accessory to the nonconforming use during the two -(2) year period shall not continue the nonconforming use. Nevertheless, even giving the landowner the full benefit of the doubt and assuming that he were able to establish the validity of a nonconforming use, the appellant's use is not a continuation of the prior lawful nonconforming use of the property. The first perquisite to establishing the right to continue a nonconforming use is that "the then existing or a more restricted use continues." Virginia Code Section 15.2 -2307. An example of a more restricted nonconforming use would be if the use occupied less area within a structure. It is clear that the "then existing" nonconforming use has not been maintained because the appellant's use is not an eating establishment. On the other hand, an example of a change of use that maintains the nonconformity would be a change from one restaurant to another type of eating establishment. In this case, a rug store use (general retail sales) is not the same as an eating establishment use. These two uses are identified by separate categories of use in the Albemarle County Zoning Ordinance. Conclusion: The current use of the property as a rug store is not permitted within the R1, Residential zoning district. While the appellant alleges a lawful nonconforming business use of the property, no evidence has been provided to validate that claim. In fact, County records reflect that over two (2) years has passed since the prior business closed. Therefore, the nonconforming commercial use of the property has been abandoned. Even if the appellant were able to provide evidence of a nonconforming use, the current use is not 3 a continuation of the "then existing" nonconforming use. Therefore, the current use of the property is not permitted and constitutes a zoning violation. Staff asks the BZA to affirm the Zoning Administrator's determination. Attachments: 1. Zoning Map of T.E. Wood Property 2. Notice of Violation dated July 24, 2009 3. Albemarle County Zoning Ordinance Section 13.2 R1, Residential Zoning District 4. Albemarle County Zoning Ordinance Section 6.0 Nonconformities 4