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.


Land-Use Control.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

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)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
References in periodicals archive ?
"The Town of Marion thus has no power to 'permanently grandfather' nonconforming uses: c.
Plots will be liable for cancellation after the provision of a show cause notice on grounds of non-development, non-production, defaulting on payments, building violations and nonconforming use.
"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."
Look for the ruling to have a large influence on other metro-area cities' recent attempts through zoning to eliminate un-favored but lawful nonconforming uses, Williams said.
The appeals court noted that while it is ordinarily the landowner's responsibility to prove an affirmative defense, including a legal nonconforming use, after the town has proven a zoning violation, Highlands here made that overly difficult for Shearl by losing all copies of the official zoning map from 1990.
Cattanach spoke of major policy regulatory inconsistencies in the regulations for compact development (the current town center concept has been up, not out), nonconforming uses, and the development approval process.
nonconforming use is a right established by statute.
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.
However, even in the land-use context, the definition of a "substantial" change to the nonconforming use has proven a contentious one.
Another area of major concern to the drafters of the new ordinance involved the nonconforming use.(12) A nonconforming use is "[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated.(13) The amended resolution of 1961 detailed the objectives of the revised regulations concerning the nonconforming use in a statement of purpose: "[t]he regulations governing non-conforming uses ...
Li and Brown (1980) and Colwell, Gurjral, and Coley (1985) provide evidence that the same nonconforming use may produce both positive and negative externalities.