Attorney argues his client did not lose non-conforming use for radio tower

Attorney Edward P. Fleming told Inweekly that the non-conforming use for Divine Communications’ radio tower did not end when the old tower was demolished. As long as his client did not abandon the site for more than 365 days, Divine had both the right, and the obligation under its lease with the City, to construct a new tower on the site.

The lease agreement with the City of Pensacola required that Divine tear down the old tower and build a new one. His client had no other option.

According to the attorney, if the City Council wanted to end the non-conforming use, the time do it was in May 2012 when the city still owned the tower, and had no obligation to extend the lease.

Fleming agrees it would have been a good idea for City Administrator Bill Reynolds to have told City Council that renewing the lease would extend the non-conforming use.

“Ultimately, the non-conforming use would either remain where it had been in decades, or the City would have been dealing with another group of angry citizens opposing an application to move it elsewhere. There were certainly reasons to leave it where it was, or not, but that was a political decision by the City,” said the attorney.

“My client told the city and Mr. Reynolds about the non-conforming use. The city entered into this agreement knowing that it would allow a non-conforming use to continue, and contractually requiring my client to remove the old tower and build a new one,” said Fleming.

What does the City Code say about non-conforming structures?

Sec. 12-1-6. (D) Nonconforming uses of land and structures. Where a legal use of land exists that would not be permitted under the terms of this title, as enacted or amended, such use shall be declared a nonconforming use and may be continued subject to the following provisions:

(1) Extension of nonconforming use. No such nonconforming use may be extended to occupy any greater area of land or extended to occupy any land outside any buildings on the same parcel.

(2) Discontinuance of nonconforming use. If a nonconforming use is discontinued, removed or abandoned for a period of not less than three hundred sixty-five (365) days, any future use of the land and structure shall be in conformity with the provisions of this title.

(3) Where the cessation of a nonconforming use is the result of fire, explosion or other casualty, or act of God, or the public enemy the nonconforming use shall not be declared discontinued until six (6) months after the initial three hundred sixty-five (365) day period. Additional time may be granted by the zoning board of adjustment upon proof by the landowner that the landowner has proceeded with diligence to restore the use and circumstances beyond the landowner’s control have made the period of time inadequate.

(4) Nothing in this title shall be interpreted as authorization for, or approval of, continuation of any illegal use of a building, structure, premises or land, in violation of any ordinance in effect at the time of the passage of this title. The casual, intermittent, temporary, or illegal use of land, building or structure for any length of time shall not be sufficient to establish the existence of a nonconforming use.

I asked Fleming if the height of the new tower – which is substantially higher than the old one- could considered an extension of nonconforming use. He felt it did not.