Sometimes, properties undergo rezoning, resulting in changes to their permitted uses. This can mean a single-family residential property with a 100-foot frontage is now required to have a 200-foot frontage, or a property with two rental units can only have one due to the new zoning.
When a property is used for something other than its current zoning designation, it is known as a “nonconforming use.” Nonconforming use is categorized as either legal or illegal. A legal nonconforming use refers to a use that was lawful before the zoning ordinance or amendment was enacted. An illegal nonconforming use, on the other hand, was never lawful and does not conform to current zoning laws. If discovered, illegal nonconforming uses are subject to local government enforcement actions for removal.
Grandfathering of Legal Nonconforming Uses
Many legal nonconforming uses are “grandfathered,” meaning they are allowed to continue as long as the owner proves the use was lawful before the ordinance and has remained continuous. However, if a nonconforming use is discontinued for a period specified in the local zoning ordinance, it is considered abandoned and cannot be reestablished.
For example, if current zoning prohibits rental units in owner-occupied properties, but a retiree legally had a rental apartment before the new zoning laws, this use can continue. If the retiree moves to an assisted living facility and the tenant vacates, leaving the property empty beyond the specified period, the nonconforming use is abandoned. Consequently, the property cannot be sold as a residence with a rental unit.
Other Examples of Nonconforming Uses
Nonconforming uses also arise with new zoning features such as setbacks. Consider an older property affected by a new zoning law requiring a 10-foot side setback for improvements. If an old tool shed was built right on the property line and then burns down, any new shed must comply with the new setback requirement and be placed 10 feet from the sideline. Although the owner could apply for a variance to the new zoning rule, obtaining it without extraordinary circumstances is unlikely.
Understanding these nuances helps property owners navigate the complexities of zoning laws and the implications of nonconforming uses on their properties. If you need assistance with a non-conforming use, contact us today.