Preexisting nonconforming use exception applied in zoning case: LEGRAND v. EUBANK (COA 8/29/2008)

ZONING:   Pre-existing nonconforming use exception upheld
DATE RENDERED: 8/29/2008
Nugent Sand Company (“Nugent”) owned property on which it operated a sand and gravel mining operation.  Nugent had a permit to mine the entire property.  On January 30, 2002, the county adopted an ordinance that zoned the land owned by Nugent for residential or agricultural use.  The Board of Adjustments (“Board”) determined that Nugent had nonconforming use rights to conduct its operations on all lands that it owned that were under permit at the time of adoption of the ordinance.

The appellants asked the County Enforcement Officer for a formal opinion on whether the property that was not being actively mined as of January 30, 2002 was entitled to status as a preexisting nonconforming use.  The Enforcement Officer decided that the entire property was covered by the preexisting nonconforming use exception, and the Board affirmed, as did the circuit court.  Appellants appealed.

On appeal, the court looked at whether a nonconforming use could include the property that was not being actively mined at the time of the adoption of the ordinance.  The court, looking at the nature of mining, held that it was proper to include such property within the nonconforming use.  It stated that the very nature of mining is to start in one area and then move to another once the resources are exhausted, making mining cases unique in terms of what is a nonconforming use.  The court affirmed the circuit court, holding that while ownership of property with the intent to mine would likely not establish a nonconforming use, a nonconforming use exists for the entire property in a situation where the owner has “demonstrably demonstrated” that use of the entire property was dedicated to mining prior to adoption of the zoning ordinance prohibiting that activity.

Digested by Sam  Hinkle

PS:  This is an update of an earlier posting.

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