Interpretation: 01-02-03 Subject: Extension of hours of operation of a bar/restaurant in a C-1 Zone. Issue Date: January 22, 2003 |
Situation Requiring Interpretation: | Application to extend the hours of operation of a bar/restaurant located in a C-1 Neighborhood Center District, beyond the hours of 6 AM to 11 PM. | |
Question: | What means of relief is available to extend the hours of operation of bar/restaurant permitted and established under the 1975 Code, where under the 2003 Code a bar/restaurant located in a C-1 District requires a special permit and may only operate during the hours of 6 AM to 11PM? | |
Facts: | The bar/restaurant was located in a C-1 District prior to January 1, 2003 and operated between the hours of 6AM - 11PM. Under the 1975 Code this use was permitted as of right in the C-1 zone and a special permit was required to extend the hours of operation. | |
The subject property is located in a C-1 District under the 2003 Zoning Code. However, under the terms of the 2003 Code, bar/restaurants are specially permitted uses in the C-1 neighborhood district when operated between the hours of 6AM and 11PM. There is no special permit provision to extend the hours of operation beyond 6AM - 11PM. A Use Variance would be required to establish a new bar/restaurant operating beyond the hours of 6AM - 11PM. | ||
Analysis: | The subject use existed on the effective date of the 2003 Zoning Code and hence does not have a special permit since it previously operated as of right in the C-1 district under the 1975 Code. | |
The definition of a nonconforming use is as follows: | ||
Any use lawfully being made of any land, building or structure, including an accessory use on the effective date of this Chapter, or any amendment to it rendering such use nonconforming, which does not comply with all of the regulations of this Chapter, or any amendment hereto, governing use for the zoning district in which such land, building or structure is located. | ||
The use as it exists at this point in time does not comply with all of the regulations.....governing use for the zoning district in which such....building....is located . The fact that the use preexisted the requirement for a special permit, although otherwise conforming, puts it into the category of a nonconforming use. | ||
Pursuant to Section 120-191B(4)(a) of the 2003 Zoning Code, the expansion of a legally existing nonconforming use requires an Area Variance. | ||
An extension of the hours of operation of a pre-existing nonconforming bar/restaurant use in a residential district requires an Area Variance. It would be inconsistent to require a Use Variance in a commercial district but require an area variance in a residential district for a similar extension of use. It would also be contrary to the goal of controlling nonconforming uses to require a use variance which would confer a permanent right to the use while the nonconforming hours of operation extension by area variance maintains the nonconforming status of the use. | ||
Determination: | Therefore, an Area Variance to expand a nonconforming use is required to extend the hours of operation for a bar/restaurant in a C-1 District, which had existed as of right under the 1975 Code but which is specially permitted under the 2003 Code. | |
