Nonconforming Use


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Nonconforming Use

Continuing use of real property, permitted by Zoning ordinances, in a manner in which other similar plots of land in the same area cannot ordinarily be used.Most municipal governments have enacted zoning ordinances that regulate the development of real estate within the municipality. The municipality is divided into zoning districts that permit a particular use of property: residence, business, or industry. Within these three main types of zoning districts, population density and building height may also be restricted. Zoning attempts to conserve the value of property and to encourage the most appropriate use of land throughout a particular locality.

When zoning is established, however, the ordinance cannot eliminate structures already in existence. Thus, if a district is zoned residential, the corner grocery store and neighborhood service station become nonconforming use sites. These businesses may remain even though they do not fit the predominant classification of real property in the zoning district.

As long as the property having nonconforming use status does not change, its status is protected. Problems arise, however, when change occurs. In general, substantial alterations in the nature of the business, new equipment that is not a replacement but a subterfuge to expand the use of the property, or a new structure amount to illegal expansion or extension. These types of actions will result in the loss of the nonconforming use status and the closing of the business. For example, if the corner grocery builds an addition to house a restaurant, that would be a significant change. If, however, the grocery updates its refrigeration equipment, that would not be an illegal change.

If a nonconforming use structure is destroyed or partially destroyed by fire or similar occurrences, zoning ordinances generally provide that if it is destroyed beyond a certain percentage, it cannot be rebuilt. Usually the owner loses the right to rebuild if 50 percent or more of the structure is damaged.

If a business stops operating at the nonconforming use site, zoning ordinances generally classify this as a discontinuance and revoke the nonconforming use status. The owner of the business must intend to abandon the use. Discontinuance due to repairs, acts of war or nature, government controls, foreclosure, condemnation, or injunctions are not regarded as manifesting intent to abandon the nonconforming use status if the situation is beyond the business owner's control.

Another tool to end nonconforming use situations is amortization, where the nonconforming use of a structure must cease within a zoning district at the end of the structure's estimated useful economic life. This device often is used in connection with billboards and junkyards.

Though municipalities may seek to end nonconforming use status through these various approaches, landowners usually retain this status until it becomes economically undesirable.

Cross-references

Land-Use Control.

nonconforming use

n. the existing use (residential, commercial, agricultural, light industrial, etc.) of a parcel of real property which is zoned for a more limited or other use in the city or county's general plan. Usually such use is permitted only if the property was being so used before the adoption of the zoning ordinance which it violates. Example: a corner parcel has been used for a gasoline station for years, and now the city has zoned the entire area as residential (for homes only). The nonconforming use will be allowed as "grandfathered in," but if the station is torn down the only use would be residential. (See: zoning, general plan)

References in periodicals archive ?
It is hard to imagine that it is sound public policy to permit what appears to be a significant alteration of a nonconforming use without taking into account the passage of 20 years and the expectations of people who have moved to the neighborhood in that period of time.
BOMA Anchorage President Dave Le Clair, at one of the monthly meetings, expressed broad concerns about land availability and cost, inconsistencies, the requirements for open space, the issue of nonconforming uses, which will require improvements and repairs, the possibility of some property owners having difficulty refinancing and selling their property, and the impacts on government for increased staffing.
generally are not permitted and a nonconforming use generally may not be
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.
T]he nonconforming use should, consistently with the property rights of the individuals affected and substantial justice, be reduced to conformity as quickly as possible.
In its supporting arguments, the Washington Supreme Court stated, "In Washington, local governments are free to preserve, limit, or terminate nonconforming uses subject only to the broad limits of applicable enabling acts and the constitution.
distances to the Central Business District, to nonconforming uses, parks, schools, major thruways, etc.
Instead of legally applying for home occupation permits, these businesses have been sheltering under the nonconforming use designation.
The basic and crucial question which had to be decided upon in these petitions was whether running a guest house fell within the definition of nonconforming use or not.
The Court of Appeals, in reversing the Appellate Division, held that "the determination of a zoning board regarding the continuation of a preexisting nonconforming use must be sustained if it is rational and supported by substantial evidence, even if the reviewing court would have reached a different result (citation omitted).
s pit sites, Star 6 and Star 14, had been approved by the state for the landfill nonconforming use.