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30. Should the lawyer advise the daughter that she can continue to operate her shoe store?
The daughter has asked her lawyer for advice regarding her ability to continue operating the shoe store.
Recently, the daughter inherited the building from her parents. The daughter immediately moved into the apartment and took over the operation of the shoe store on the first floor. The daughter has learned that a developer is planning to build a large residential community in the area surrounding her building.
Five years ago, the municipality rezoned the area to single-family residential use. The daughter was not aware of this change, since she was away at college.
Ten years ago, a couple bought a building and moved into its second-floor apartment with their teenage daughter. The couple operated a shoe store on the first floor of the building for many years. When the couple purchased the building, the area was predominantly rural and was zoned for nonresidential use. The municipality's zoning is cumulative.
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There are two types of zoning ordinances: cumulative and noncumulative. A cumulative zoning ordinance creates a hierarchy of uses of land. Under a cumulative zoning ordinance, land that is zoned for a particular use may be used for the stated purpose or any higher use. Under a noncumulative zoning ordinance, land may be used only for the purpose for which it is zoned.
A use that exists at the time of passage of a zoning ordinance that does not conform cannot be eliminated at once. Generally, the nonconforming use may continue indefinitely, but any change in the use must comply with the zoning ordinance.
C is correct. This is an example of a nonconforming use. Because the first floor was already being used as a shoe store when the area was rezoned to single-family residential use, the daughter will be permitted to continue the nonconforming use.
A is incorrect. As explained above, the nonconforming use may continue if there are no changes in the use. Here, although the daughter is taking over ownership from her parents, the use is still the same.
B is incorrect. Although a zoning ordinance might reduce the value of real property, which would require the government to compensate the landowner, there is no evidence here of a reduction in property value that would trigger the Fifth or Fourteenth Amendments.
D is incorrect. Although part of the building does conform to single-family use, the bottom of the building is a lower use in the hierarchy and would not be allowed because of cumulative zoning.