The Florida Bar

Florida Bar Journal

The Status of Nonconforming Use Law in Florida

Real Property, Probate and Trust Law

For the past 30 years, Floridians enticed by the lure of new homes, gated communities, and other amenities fled the coasts in a race to the center of the state.1 As available land begins to run out, and faced with the reality of poor planning, inadequate infrastructure, and booming commute times, Floridians have begun a rediscovery of previously developed coastal communities.2 Many local governments have taken steps to plan for this new wave of redevelopment. These planning measures typically attempt to preserve a localized sense of identity while requiring that sufficient infrastructure is provided in tandem with redevelopment.3 The implementation of such planning measures frequently has the effect of causing existing uses or structures to become “nonconforming.”4 Accordingly, an understanding of the status of Florida law on nonconforming uses and structures will become of critical import to property owners and developers as local governments plan for redevelopment.

Definition and Existing Methods of Elimination
definition, a nonconforming use or structure is one in which the use or structure was legally permitted prior to a change in the law, and the change in law would no longer permit the re-establishment of such structure or use.5 As the Fifth District Court of Appeal noted in Lewis v. City of Atlantic Beach, 467 So. 2d 751, 754 (Fla. 5th DCA 1985):

[t]he application of zoning regulations to restrict an existing use of property, resulting in substantial diminishing of its value, may constitute a “taking” by the governmental agency which requires the payment of compensation under well-established principles of constitutional law. . . . To avoid these consequences, zoning regulations generally “grandfather” the continuation of existing nonconforming uses on property subject to the zoning classification. the same token therefore, it is reasonable to conclude that the termination of such grandfathered nonconforming uses may result in a “taking” for constitutional purposes unless the basis of such termination accords with applicable legal principles.

The operators and owners of such “grandfathered” or “nonconforming” uses or structures (collectively, “nonconforming uses”) routinely come into conflict with local governments when they seek to grow out their businesses, enlarge their homes, or face unexpected difficulty in obtaining insurance or financing.6

Florida courts generally recognize that nonconforming uses can be eliminated in four ways, through attrition, destruction, abandonment, and/or obsolescence.7 Attrition is the most direct method for eliminating a nonconforming use. Typically, a local government sets forth a specific time frame by which a nonconforming use must be terminated.8 The legal theory underpinning attrition (also referred to as amortization)9 is that the local government has placed the property owner on notice, and has provided sufficient time for the property owner to realize a return on his or her investment so as to avoid a deprivation of due process rights.10 Attrition can be problematic in that it is often difficult to determine the exact length of time necessary for a property owner to sufficiently realize the benefits of an investment.

Amortization of Nonconforming Uses
The seminal case in Florida standing for the proposition that a local government can amortize a nonconforming use is the case of Standard Oil Co. v. City of Tallahassee, 183 F. 2d 410 (5th Cir. 1950). In Standard Oil, the Fifth Circuit upheld a Tallahassee ordinance that required the discontinuance of nonconforming gas stations within six months.11 The Fifth Circuit reasoned that local governments may regulate to protect the welfare of citizens and that it was reasonable to require discontinuance of gas stations that were in close proximity to the state capitol, a school, and other residential uses.12

Subsequent decisions have refined the notion that a local government can cause the gradual discontinuance of a use. In Lamar Advertising Associates of East Florida, Ltd. v. City of Daytona Beach, 450 So. 2d 1145, 1150 (Fla. 5th DCA 1984), the Fifth District Court of Appeal upheld a Daytona Beach ordinance that amortized nonconforming billboards within 10 years. The Fifth District held that amortization provisions must provide a reasonable opportunity for the property owner to realize a return on his or her investment.13 However, the use of the reasonable standard requires a case-by-case analysis of the particular use in question in relation to the local government’s interest in eliminating the use.14

Reestablishment After Destruction
The timing involved in eliminating a nonconforming use through amortization can be lengthy. Accordingly, many local governments place additional restrictions against the reestablishment of the nonconforming use in the event of destruction. Some local governments will not permit reconstruction or reestablishment of a nonconforming use if over 50 percent of the structure has been destroyed or if the cost of replacing the nonconforming structure would exceed 50 percent of the value of the structure prior to destruction (the “50-percent rule”).15 Because instances of destruction are rare, conflicts over these forms of restrictions generally manifest themselves when the owner or operator of a nonconforming use applies for refinancing or attempts to sell the property.16 Because the 50-percent rule can impact desirable and economically viable businesses, it may not be appropriate for local governments to apply it rigidly.

Miami-Dade County’s experience in discouraging westward development illustrates the types of disputes that may occur over rigid application of the 50-percent rule. The Miami-Dade County Commission in concert with local businesses and area residents created an overlay zoning district for the east Kendall area, a suburb located approximately 15 miles southwest of the city of Miami.17 The idea behind this Downtown Kendall plan was to create a viable mixed use development in east Kendall which would have the effect (in part) of discouraging further westward expansion.18 What made the county’s endeavor unusual was that east Kendall was already an economically vibrant area consisting of an enormously successful shopping mall and other established commercial and residential uses.19 The Downtown Kendall plan called for a series of changes to the orientation of buildings and changes to the road networks, including the narrowing of roadways in order to accommodate off-street parking.20 In order to effectuate these changes, the Downtown Kendall plan implemented the 50-percent rule.21

Problems arose just after adoption of the Downtown Kendall plan when property owners realized that application of the 50-percent rule would hamper their ability to obtain insurance, financing for new improvements, and permitting for already planned renovations.22 Several property owners including the owner of the shopping mall filed suit challenging the county’s adoption of the plan as a taking under the Bert J. Harris, Jr., Private Property Rights Protection Act.23 Over the course of the next six months, the claimants, along with Miami-Dade County and area residents, negotiated a comprehensive settlement to the dispute.24 The county agreed not to apply the 50-percent rule if post-destruction building permits were obtained within one year. After the one-year period, the property owner would be required to rebuild in accordance with the Code.25 Whether Miami-Dade County’s approach should be followed by other local governments is a question of local policy. However, providing for the reestablishment of a nonconforming use after destruction within a set time period, or providing an alternative process by which certain nonconforming uses can be legalized after public hearing,26 may be an advantageous way of regulating existing economically viable or desirable uses that do not suffer from the type of blight encountered in other areas.

Another type of restriction governing nonconforming uses prevents the reestablishment of a nonconforming use when the use itself has been discontinued or abandoned.27 Generally, local governments provide that a nonconforming use may not be reestablished if the use has been dormant for a set period of time.28 A majority of courts outside of the state and at least one lower court in Florida have held that the burden of proof to establish a nonconforming use falls on the property owner.29 Once the nonconforming use has been established, the burden shifts to the local government to prove that the nonconforming use has been discontinued or abandoned.30

In application to discontinuance regulations, Florida law is unclear as to whether the owner’s intent to abandon the use must be shown.31 The Florida Supreme Court has issued two seemingly contradictory opinions on the subject. In the case of City of Miami Beach v. State ex rel. Parkway Co., 174 So. 443 (Fla. 1937), the Florida Supreme Court held that a use was not discontinued for the purpose of a Miami Beach ordinance if the use had been shut down for the purpose of renovations or repairs. However, in the case of Peters v. Thompson, 68 So. 2d 581 (Fla. 1953), the Florida Supreme Court held that the sale of liquor at a bar that had closed for a six-month period due to the bar owner’s incarceration could not be reestablished. In that case, the county’s code prohibited the resumption of a nonconformity after the use had been discontinued for six months.32 The Florida Supreme Court stated, “[T]here is abundant evidence that the nonconforming use of the premises. . . was discontinued for a period of more than six months, and the county commissioners were not only justified in refusing a resumption of the business, but were prevented from doing so by [the regulation in question].”33 It should be noted that the Florida Supreme Court found that no effort was made to renew the original liquor license during the six-month period of time.34 As such, this case may be distinguishable as one where the sheer weight of the evidence compelled the county to deny the permit.35

A large number of courts outside of Florida have held that a showing of intent is necessary to establish discontinuance of a nonconforming use.36 However, a growing number of courts have held that the establishment of a specific time frame in regulations prohibiting nonconforming uses from reestablishing constitutes an irrebuttable presumption of intent.37At least one lower court has adopted a compromise position.

The 17th Circuit Court in and for Palm Beach County held that Florida law requires a showing of intent and that the provision of a time frame for discontinuance merely provides a rebuttable presumption of intent to abandon. Cook v. the City of Lake Worth, 1 Fla. L. Weekly Supp. 383a (17th Cir., May 26, 1993), aff’d, 626 So. 2d 1115 (Fla. 4th DCA 1993) (per curiam). In Cook, the City of Lake Worth rezoned a building to commercial and multifamily use. The city’s rezoning rendered retail space in the building nonconforming.38 The city’s code further provided that in the event a nonconforming use ceased for a period of six months or more, the nonconforming use could not be reestablished.39 Despite numerous attempts, the property owner was not able to lease the property for retail uses over a six-month period due to an economic downturn.40 The court found evidence that the owner continuously attempted to rent out the retail space sufficient to rebut the presumption of intent.41

Courts in other states have criticized the examination of intent in the context of an abandonment case as being “silly” because it encourages property owners who have actually abandoned a nonconforming use to perjure themselves and because such an analysis supersedes the intent of the local government.42 However, an examination of intent may be appropriate because Florida courts have long since established the ability of a local government to conduct quasi-judicial hearings and to weigh and discern the credibility of evidence.43 Moreover, the local government’s interests are protected by creating a presumption of intent based on the time frame necessary to establish abandonment. As such, the approach of the 17thCircuit (as affirmed by the Fourth District) may be seen as striking a balance between the rights of property owners to realize their investment and the aim of local governments in planning for their cities.44

The final type of restriction governing nonconforming uses requires the gradual elimination of a nonconforming use through obsolescence. Typically, local governments prohibit expansion or enlargement of the nonconforming use which prohibition, it is thought, render the use obsolete over time.45 However, problems arise as to the precise meaning of an expansion or enlargement. The results of these disputes generally hinge on the facts of each case.46 In deciding such cases, courts will look to such factors as a change in the scope47 or volume, geographic size, or area of the nonconforming use,48 whether additional types of use permits are necessary to accommodate the proposed expansion (e.g., a liquor license),49 and whether the expansion increases residential density or the need for infrastructure.50 However, a change in ownership in and of itself does not terminate a nonconforming use.51

Property owners may be successful if they can demonstrate to the court that a change in the nonconforming use does not differ substantially from the original nonconformity.52 If a property owner is unsuccessful, questions have arisen as to whether a nonconforming use can be preserved upon the removal of the addition. This issue was addressed in the case of 3M National Advertising Co. v. City of Tampa Code Enforcement Bd., 587 So. 2d 640 (Fla. 2d DCA 1991). In that case, a billboard owner attached a replica of an airplane atop a nonconforming billboard.53 In the absence of any code provision to the contrary, the Second District held that the nonconforming use could be restored if the billboard could be restored to its prior state upon removal of the model.54

Conversion of Nonconforming Uses to Conditional Nonconforming Uses
Ultimately, local governments are charged with the interpretation and enforcement of their codes and their interpretation will not be overruled unless it is clearly erroneous.55To that end, local governments may also convert nonconforming uses into conditional conforming issues. That is, the local government allows for an expansion of a nonconforming use while simultaneously placing additional limitations on the nonconformity. An illustration of this approach can be seen in the case of Smalley Logics Corp. v. Dade County, 176 So. 2d 574 (Fla. 3d DCA 1965).

In Smalley Logics Corp, Miami-Dade County approved a special variance permit to allow a nine-acre expansion of a nonconforming airport.56 The county commission utilized the variance as a means of regulating the size of the aircraft that could land at the airport and further prohibited night landings.57 The Third District subsequently upheld enforcement of the variance conditions which later resulted in closure of the entire airport.58

Nonconforming Lots
Another problem faced by local governments and property owners is whether restrictions on expansion or enlargement of a nonconforming lot can be enforced. Nonconforming lots are problematic since there may not be an existing use on the property or even a permissible use absent a variance. The majority rule outside of Florida is that subdivision approval by itself does not vest development of a lot that has become substandard by change of regulation.59 The Third District Court of Appeal recently examined this issue in Monroe County v. Ambrose, 866 So. 2d 707 (Fla. 3d DCA 2003), rev. denied, 880 So. 2d 1209 (Fla. 2004). In Ambrose, the court held that a series of plats recorded between 1924 and 1971 did not automatically vest development of those properties and preclude application of subsequent environmental development restrictions for properties in the Florida Keys.60

The Third District in Ambrose primarily analyzed whether area of critical state concern regulations applicable to the Florida Keys could be applied to old subdivisions.61 However, in so doing, the Third District engrafted common law principles in its analysis of the statutes.62 The Third District held that:

Florida common law provides that vested rights may be established if a property owner or developer has (1) in good faith reliance, (2) upon some act or omission of government, (3) made such a substantial change in position or has incurred such extensive obligations and expenses (4) that it would make it highly inequitable to interfere with the acquired right. . . . The theory behind vested rights is that “a citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations… However, the mere purchase of land without more does not create a right to rely on existing zoning. . . . It would be unconscionable to allow the Landowners to ignore evolving and existing land use regulations under circumstances when they have not taken any steps in furtherance of developing their land.63

Owners of nonconforming lots can generally be broken into two categories: those who own lots capable of lot assemblage, and those who do not. Because minimum lot size regulations may have the effect of prohibiting all development on the property, such properties may qualify for a variance. Florida variance law requires that the applicant establish a characteristic unique to the property which renders it virtually impossible to use it for the purpose or in the manner for which it is zoned.64 Moreover, the hardship cannot be self-created.65

Generally, lots that are incapable of lot assemblage have been held to qualify for a variance where it can be shown that failure to grant the variance would prohibit any meaningful use of the property. Anon v. City of Coral Gables, 336 So. 2d 420 (Fla. 3d DCA 1976). contrast, lots that are capable of lot assemblage will not generally qualify under the hardship test.66 One way around this problem is to excuse such lots from the more modern minimum lot size requirements.67

The foregoing constitutes a summary of Florida law on the subject of nonconforming uses. As can be readily observed, Florida courts have struggled to find the right balance between protecting the rights of property owners versus the local government’s desire to promote orderly redevelopment. Although the focus of a future article, the author notes that the only meaningful solution available to property owners and local governments rests in mutual respect between the aims of property owners and developers to utilize their property consistent with their investment backed expectations and the aim of local government to promote orderly redevelopment.

1 See generally Florida Department of Community Affairs, Division of Community Planning, Program Summary 2003, (last modified February 23, 2004); National Parks Service, Effects of Population Growth on Everglades National Park (last modified February 23, 2004).
2 See generally Robin Benedick, Hollywood Beach City is Preparing a New Oceanfront Look,Sun Sentinel, January 25, 2004, at 6H; Robin Benedick, Pompano Beach Finding Balance Between Residents, High-Rise Interest is Tall Order, Sun Sentinel, January 25, 2004, at 7; Mary Shanklin, Downtown Plan Dictates New Homes in Old Styles, Orlando Sentinel, October 8, 2000, at Al.
Depending on the coast, the policy of encouraging redevelopment of Florida’s coastal cities is often referred to as “Eastward Ho!” or “Westward Ho!”
3 See generally Carlos Moncad, Making it in Midtown, Business and Homeowners Fear that St. Petersburg’s Proposal to Redevelop and Revitalize the Area Will Force Them to Leave, Tampa Tribune, July 27, 2003, at Al.
4 See generally Joan Mciver, Shift in Zoning Leaves Nail Salon in Limbo, Miami Herald, September 6, 1992, at 3B.
5 See, e.g., JPM Inv. Group, Inc. v. Brevard County Bd. of County Commissioners, 818 So. 2d 595 (Fla. 5th D.C.A. 2002), citing §62-1181, Brevard County Code.
6 See generally Roxana Soto, Tough Business Zoning Rules Create a Storm, Miami Herald, July 18, 1999, at 5NE; Dan Keating, Land-Use Rules Limit Renovations, Miami Herald, December 15, 1992, 18.
7 3M Nat. Advertising Co. v. City of Tampa Code Enforcement Bd., 587 So. 2d 640, 641 (Fla. 2d D.C.A. 1991).
8 See, e.g., City of Homestead, Fla., Code §32-5. That section requires the amortization of all nonconforming building colors within two years of the effective date of the code provision.
9 Lewis v. City of Atlantic Beach, 457 So. 2d 751, 754 (Fla. 1st D.C.A. 1985).
10 E.B. Elliot Adv. Co. v. Metropolitan Dade County, 425 F. 2d 1141, 1155 (5th Cir. 1970).
11 Standard Oil, 183 F.2d at 412.
12 Id.; see generally Lambros Inc. v. Town of Ocean Ridge, Florida, 392 So. 2d 993 (Fla. 4th D.C.A. 1981) (indirectly upholding ordinance amortizing certain commercial uses within 40 years of construction of the improvement or within 20 years of the ordinance rendering the commercial use nonconforming where property owner failed to satisfy burden of demonstrating that ordinance was arbitrary).
13 Lamar, 450 So. 2d 1145, 1150.
14 It should be noted that the legislature requires local governments to compensate billboard owners for forced removal of nonconforming billboards adjacent to certain highways. See Fla. Stat. §479.41 (West 2004); see also T-Marc, Inc. v. Pinellas County,804 F. Supp. 1500 (M.D. Fla. 1992) (upholding a one-year amortization period for an adult bookstore).
Rigid application of amortization periods may not be appropriate in all settings. Accordingly, some local governments provide for the expansion or enlargement of the amortization period upon public hearing approval.
15 See generally Steven P. Lee, Fleta A. Stamen, & Mark S. Meland, The 50% Rule: A Primer for Real Estate Lawyers, 68 Fla. B.J. 92 (Oct. 1994).
16 See generally Roxana Soto, Tough Business Zoning Rules Create a Storm, Miami Herald, July 18, 1999, at 5NE; Dan Keating, Land-Use Rules Limit Renovations, Miami Herald, December 15, 1992, 1B.
17 Don Finefrock, Mall Resists Kendall Plan, Dadeland Raises Demolition Fears, Miami Herald, October 14, 2000, at lB.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.
23 Fla. Stat. §70.001 (West 2004); Miami-Dade County Resolution No. R-59-02 (Adopted January 29, 2002).
24 Id.
25 Id.
26 See, e.g., City of Clearwater, Fla. Code §6-109. That section allows for the termination of nonconforming status upon the provision of certain offsite improvements and after approval at public hearing.
27 Some courts in other states interpret the terms “discontinue” and “abandon” differently. In those states, the term “discontinue” does not require a showing of intent, whereas use of the term “abandon” does. See generally, Dandy Co. v. Civil City of South Bend, County-City Complex, 401 N.E. 2d 1380, 1383 (Ind. App. 1980). The Florida Supreme Court refused to provide a distinction between the terms in the case of Crandon v. State, 158 Fla. 133 (Fla. 1946) (“[W]e are not required to determine whether discontinuance. . . contemplates an intent to abandon the use of the property. Neither are we required to say that discontinuance is synonymous with abandonment.”). However, the modern view is that the terms are synonymous. See Cook v. the City of Lake Worth, 1 Fla. L. Weekly Supp. 383a (17th Circuit Court in and for Palm Beach County, May 26, 1993), aff’d, 626 So. 2d 1115 (Fla. 4th D.C.A. 1993) (per curiam), citing Appeal of Indianhead, Inc., 198 A. 2d 522 (Pa. 1964).
28 See, e.g., City of West Palm Beach, Fla. Code §94-513(c)(3). That section prohibits restoration of certain types of nonconforming uses if the use has been abandoned for 180 consecutive days.
29 See Curran v. City of Maitland, 6 Fla. L. Weekly Supp. 586a (9th Judicial Circuit in and for Orange County, July 6, 1999). See also Pappas v. Zoning Board of Adjustment of the City of Philadelphia, 589 A.2d 675, 676 (Pa. 1991); LaTrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, Westmoreland County, 720 A.2d 127 (Pa. 1998); Faith Presbyterian Church v. Bensalem Township Zoning Hearing Board, 538 A.2d 135 (1987). Van Sant v. City of Everett, 849 P.2d 1276 (Wash. 1993); Martin v. Beehan, 689 S.W.2d 29, 31 (Ky. 1985).
30 Id.
31 Discontinuance due to interference by the local government does not constitute abandonment. See Crandon v. State at. rel. Uricho, 28 So. 3d 159 (Fla. 1946) (holding that temporary closure of nonconforming airport due to war regulations did not constitute discontinuance of nonconforming use).
32 Peters, 68 So. 2d 581.
33 Id. at 583.
34 Id.
35 See also Estes Exp. Lines v. Metropolitan Dade County Environmental Quality Control Rd., 716 So. 2d 352 (Fla. 3d D.C.A. 1998) (“Where there is a period of nonuse because of the financial inability of the owner to continue in business,. . . the requisite intent to abandon is lacking, and the right to resume the nonconforming use when opportunity presents itself is not lost.”) (dictum).
36 Grushkin v. Zoning Bd. of Appeals of City of Norwalk, 227 A. 2d 98, 100 (Conn. Comm. P1. 1967); A. T. & G, Inc. v. Zoning Bd. of Review of Town of north Smithfield, 322 A. 2d 294 (R.I. 1974).
37 See also Hazel Hartley v. City of Colorado Springs, 764 P. 2d 1216 (Cob. 1988) (refusing to assess the property owner’s intent to abandon a nonconforming use where the ordinance provided that a nonconforming use would be extinguished if not in use for a year); State v. Burt, 166 N.W. 2d 207, 209 (Wisc. 1969) (“[T]he proposition that the subjective test of voluntary abandonment is to be rejected in the face of a definitive legislative time limit.”); League to Save Lake Tahoe v. Crystal Enterprises, 685 F.2d 1142 (9th Cir. 1982) (“A nonconforming use may be terminated by ordinance after the lapse of a reasonable time period of time regardless of whether the property owner intends to abandon the use.”); c.f. Lytle Co. v. Clark, 491 F. 2d 834 (10th Cir. 1974) (holding that intent to abandon need not be shown when the zoning ordinance specifies a time period for terminating the nonconforming use.); BAML Realty v. State of New York, 314 N.Y.S. 2d 1013 (N.Y. App. Div. 3 1970) (“under an ordinance. . . providing that the nonconforming use shall not be reestablished if discontinued for over one year, the nonconforming use which has ceased for the prescribed reasonable period of time may not be resumed, irrespective of the absence of intent to abandon.”).
The timeframe given for discontinuance must be reasonable. See Showboat Adult World Corp. v. Brevard County, 2 Fla. L. Weekly Supp. 2l7a (18th Judicial Circuit in and for Brevard County, October 5, 1993) (holding that 15 days was not a sufficient time period for abandonment of an adult bookstore was inadequate).
38 Cook, 1 Fla. Law Weekly Supp. 383a.
39 Id.
40 Id.
41 See also Maroon v. Miami-Dade County, 6 Fla. L. Weekly Supp. 754d (11th Judicial Circuit in and for Miami-Dade County) (holding that county commission did not depart from essential requirements of law when it determined that apartment building had not lost its nonconforming status by virtue of having been temporarily vacant for six months when owner continued to make repairs, kept utilities running, and negotiated future rental of the property); Amnesia Holding, Inc. v. City of Miami Beach, 6 Fla. L. weekly Supp. 252a (11th Judicial Circuit in and for Miami­Dade County, January 29, 1999) (6 Fla. L. Weekly Supp. 252a), reh ‘g denied, 6 Fla. L. Weekly Supp. 315a (holding that city failed to demonstrate intent to abandon nonconforming nightclub lost nonconforming status by failing to provide continuous meal service).
42 See Hartley, 764 P. 2d 1216 (“[T]he rule that intent to abandon must be shown before discontinuing the nonconforming use. . . produces results that are not only unfortunate but silly because it encourages property owners who have actually abandoned their nonconforming use to commit perjury, and because it not only disregards but supersedes the intention of the legislative body that designed the ordinance.”); Anderson v. City of Paragould, 695 S.W. 2d 851, 852 (Ark. App. 1985).
43 See generally Broward County v. G.B.V. Intern, Ltd., 787 So. 2d 838 (Fla. 2001); Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993).
44 Another practical problem for the courts is how exacting a local government needs to be in calculating the discontinuance period. At least one lower court in Florida has held that a code enforcement officer’s testimony that a nonconforming use had ceased during several unspecified site visits did not constitute substantial competent evidence. See Butler v. Orange County, 10 Fla. L. Weekly Supp. 281a (9th Judicial Circuit in and for Orange County, February 3, 2003) (holding that testimony of a code enforcement officer that he did not witness the nonconforming use in progress during site visits where the dates were not specified does not constitute substantial competent evidence sufficient to terminate a nonconforming use). See generally Broward County v. G.B.V. Intern, Ltd., 787 So. 2d 838 (Fla. 2001); Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993).
45 See, e.g., City of Jacksonville, Fla. Code §656.702(a). That section permits nonconforming Uses to continue, however, it prohibits the extension or enlargement of the use. Section 656.702(b) further requires that the nonconforming use be confined to the area occupied when the use became nonconforming.
46 See Jonston v. Orange County, 342 So. 2d 1031 (Fla. 4th D.C.A. 1977) (holding that the replacement of nonconforming single mobile homes with doublewide mobile homes did not constitute an unlawful expansion of a nonconforming use where the county had failed to present evidence demonstrating that there was a net increase in units, and that the switch to doublewide units resulted in an increase in residential density. But cf Bixler v. Pierson, 188 So. 2d 681 (Fla. 4th D.C.A. 1966) (holding that replacement of a nonconforming trailer with a larger trailer constituted a prohibited alteration, extension, and enlargement of a nonconforming structure).
47 Marine Attractions, Inc. v. City of St. Petersburg Beach, 224 So. 2d 337 (Fla. 2d D.C.A. 1969) (holding that an addition of an amusement park constituted an unlawful expansion of a marine theme park).
48 See Town of Redington Shores v. Inocenti, 455So. 2d 642 (Fla. 2d D.C.A. 1984) (holding that second story addition to nonconforming residence constituted an unlawful expansion); Dowd v. Monroe County, 557So. 2d 63 (Fla. 3d D.C.A. 1990) (holding that addition of 25 units to a nonconforming motel constituted an unlawful expansion).
49 JPM Inv. Group, Inc. v. Brevard County Bd. of County Commissioners, 818 So. 2d 595(Fla. 5th D.C.A. 2002) (holding that nonconforming restaurant could not add liquor service to existing service of wine and beer).
50 Jonston, 342 So. 2d 1031.
51 See City of Miami Beach v. Arlen King Cole Condominium Ass’n, Inc., 302 So. 2d 777 (Fla. 3d D.C.A. 1974).
52 See Miller v. Berg, 104 So. 2d 658 (Fla. 2d D.C.A. 1958) (holding that a nonconforming boatyard could change its method of doing business from working on wooden boats to steel boats).
53 3M National Advertising Co., 587 So. 2d 640.
54 Id. at 64l.
55 Las Olas Tower v. City of Fort Lauderdale, 742 So. 2d 308 (Fla. 4th D.C.A. 1999).
56 Smalley Logics Corp., 176 So. 2d 574.
57 Id.
58 Id. at 578; see also Peabody v. Town of Windham, 703 A2d 886 (N.H. 1997) (upholding a determination by a board of adjustment allowing an expansion of a nonconforming well drilling business upon conditions restricting the size and scope of equipment and vehicles to be brought on site); Miller Pump Service, Inc. v. Worcester Township Zoning Hearing Board, 428 A. 2d 779 (Pa. Cmwlth. Ct., 1981) (holding that a nonconforming sign could be replaced elsewhere on the property for the purpose of attracting new business upon the condition that other nonconforming structures on the property be removed and that illumination of the site be prohibited); Edmonds v. Los Angeles County, 255P. 2d 772 (Cal. 1953) (upholding a decision of a state land planning agency to authorize the continuation and enlargement of a nonconforming use upon condition that the use would terminate within a fixed period of time).
59 Compare L.M. Everhart Construction, Inc. v. Jefferson County Planning Commission, 2 F.3d 48 (4th Cir. 1993) (“The Company makes much of the fact that the Planning Commission ‘approved’ the subdivision plat for [the property] in 1985 and argues that the approval created a vested right to [develop a section of the property] as approved, i.e., without side setback requirements. This argument is tantamount to an assertion that, once approved, a subdivision plat is exempt from all future zoning and subdivision regulations. We can find no court that has adopted such a broad conception of vested rights. . . . The very cases upon which the Company relies recognize the majority rule that even the issuance of a building permit—a part of the construction process that occurs long after the approval of a subdivision plat—does not vest rights against future changes in zoning regulations.”); Bianchi v. City of Cupertino, 944 F.2d 908 (9th Cir. 1991) (plat recordation without additional reliance did not establish vested rights); In re McCormick Management Co., mc, 547 A.2d 1319 (Vt. 1988) (holding that a developer did not have vested rights when it waited 15 years after the date of filing its plat and adoption of the town’s zoning ordinance to develop the antiquated lots); Gisler v. Madera, 112 Cal. Rptr. 919 (Cal. Ct. App. 3d 1974) (“[I]n the absence of expenditure of funds or improvement of the subdivision properties, appellants acquired no vested right by the mere recordation of the subdivision map.”); Goslin v. Zoning Board of Appeals of City of Park Ridge, 351 N.E. 2d. 299 (Ill. App. 1976) (“The mere fact that the property was platted prior to the enactment of the zoning ordinance does not give the purchaser any right to develop what has since become a antiquated lot”); and Showers v. Town of Poestenkill Zoning Board of Appeals, 176 A.D.2d 1157 (N.Y. App. Div. 1991) (denying developer’s petition to permit development of antiquated lots where developer failed to show sufficient reliance on prior plat and where developer could assemble several antiquated lots in a manner that complied with code requirements).
60 Ambrose, 2003 WL 22900537 at *3.
61 Id.
62 Id.
63 Id. (emphasis added) (citations omitted).
64 See generally Miami-Dade County v. Brennan, 802 So. 2d 1154 (Fla. 3d D.C.A. 2001); Hemisphere Equity Realty Co. v. Key Biscayne Property Tax Payers Assn., 369 So. 2d 996 (Fla. 3d D.C.A. 1979).
65 The act of purchasing a nonconforming lot with actual or constructive knowledge of its nonconforming status does not constitute a self-created hardship. See Anon v. City of Coral Gables, 336 So. 2d 420 (Fla. 3d D.C.A. 1976). The same is not true for nonconforming uses. See Elwyn v. City of Miami, 113 So. 2d 849 (Fla. 3d D.C.A. 1959).
66 Maturo v. City of Coral Gables, 619 So. 2d 455 (Fla. 3d D.C.A. 1993) (rejecting an argument that seven regularly shaped lots that were capable of development (albeit at a lesser density and height) qualified for a hardship variance.) See also Showers v. Town of Poestenkill Zoning Board of Appeals, 176 A.D.2d 1157 (N.Y. App. Div. 1991) (variance would not be upheld to permit development of antiquated lots where developer could assemble several antiquated lots in a manner that complied with code requirements).
67 See, e.g., Miami-Dade County, Fla. Code §33-7(b). That section sets forth alternative development standards for nonconforming lots that predated the county’s minimum lot size requirements.

Mark A. Rothenberg is an attorney with the planning and land use law firm of Siemon & Larsen, P.A. in Boca Raton. He has extensive experience in representing developers, property owners, and municipalities in all phases of the development process. Mr. Rothenberg previously served as deputy city attorney for the city of Homestead and the town of Miami Lakes. He received his B.S. from Florida State University and J.D., magna cum laude, from the University of Miami where he was awarded the Order of the Coif and served on the editorial board of the Law Review.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Laird A. Lile, chair, and William P. Sklar and Richard R. Gans, editors.

Real Property, Probate and Trust Law