224 East Oak - Review of BOZA Case

A team from ZALU recently appealed a case before the Louisville Board of Zoning Adjustment (BOZA) concerning nonconforming use of a five plex at 224 East Oak.  Those in the Ft. George neighborhood and members of the Property Improvement Committee (PIC) have long been aware of this troubled property.  The case was an appeal of a Staff Determination that the property had maintained its nonconforming use as a five plex despite years of apparent vacancy.

What are nonconforming rights?  Simply put, what was once permitted, but is not currently permitted due to a change in zoning, can remain until that use is abandoned.  Previously the zoning for this property was R7 which would permit an owner to change a single family home into apartments as had been done with 224 East Oak.  After the change in zoning to Traditional Neighborhood Zoning District (TNZD) that was no longer permitted.  Until abandoned, the apartments remained a nonconforming use, and legal.  The use can not be enlarged in area or scope.  The long-term vision of nonconforming use is that it will eventually go away and the underlying zoning will prevail.

There are two standards for the evidence offered during a nonconforming appeal.  The key in a nonconforming use case turns on abandonment and the intent to abandon the use.  The Appellant, in this case Steve Zocklein, a neighbor, supported by ZALU had to present “… any substantial evidence sufficient to show that the nonconforming use has been discontinued for a period of one year or more.” (Land Development Code, 1.3.1.F) to establish the presumption of abandonment.  This evidence included the following.

• From Codes and Regulations (C&R) records: a designation as “Vacant” for 17 months
• Placement on Louisville Metro’s Abandoned Urban Property list for 2005
• 12 notarized affidavits from neighbors attesting to the vacancy

The Appellant is also tasked with showing evidence of the intent to abandon.  Evidence presented included:

• 39 failed property inspections by C&R between 2003 and 2010
• 15 court dates for violations of the Property Maintenance Code
• 5 fines imposed for those violations and 5 liens filed for those violations
• A guilty plea to all violations of the Property Maintenance Code

All of the above represents in our view, an intent to abandon by literally walking away from the property.  It was later surrendered to the financer.

• A work order from the Department of Solid Waste Management to remove the garbage carts due to the house being vacant.  Garbage pickup did not resume for 33 months.
• The Louisville Water Company confirmed that service was shut off at least from March 31, 2008 through May 1, 2009. 
• LG&E confirmed no service to three meters and only enough power running through the other two meters that would be typical to maintain the meters, but not provide service to a tenant during a 17 month period.
• An Electrical Permit to restore service with a notation on the Permit of “Power has been off for over a year.”

At this point the burden of proof shifts to the property owner to rebut the presumption of an intent to abandon by “ . . . clear and convincing evidence . . .”  (LDC 1.3.1.F)

The evidence presented and accepted by BOZA as “clear and convincing evidence” was a statement by the previous owner that he had fallen on hard economic circumstances and hadn’t been able to keep the property up as he should have, but he always intended to maintain the property as a five plex.

There was no explanation how a tenant could have lived in a property without water, electricity or garbage service.  There was a statement that the property was difficult to rent because it wasn’t in good shape.

The hearing spanned two dates due to a continuance and lasted for a total of six hours.  ZALU presented a 75 page document full of supporting materials detailing our position.  That document was the result of months of research, interviews, poring over case files, filing Open Records Requests, meetings to discuss strategy and to plan the presentation and attending the hearings.  ZALU owes a huge debt of gratitude to all the neighbors who worked on this case, and in particular to Christopher White for outstanding research, to Joseph Impellizzeri for assisting with a particularly difficult Open Records Request, and of course to Steve Zocklein for filing the Appeal and paying the fee to do so. 

There were two truly disturbing statements during BOZA’s discussion of the case.

1. If this property had been on the neighborhood’s “watch list” for so long, they should have just purchased the property and fixed it up.

Seriously?

2.  Did Metro issue an opinion that this property was a five plex?

Well, yes, because the case you’ve been hearing for six hours is “An Appeal of a Staff Determination by Codes & Regulations that 224 East Oak has maintained nonconforming use as a five plex.”

Oh and yes, we lost the case.

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Update:  On  April 25, ZALU called a special meeting to discuss a possible Appeal to Circuit Court of the above decision.  The vote was unanimous to proceed with an Appeal and to ask the Old Louisville Neighborhood Council (OLNC) to be a party to such an Appeal.

On April 26, ZALU presented a motion to OLNC to join the Appeal (without a monetary commitment) and this motion was passed.

ZALU representatives are now talking with attorneys regarding the viability of an Appeal.